April 01, 2016

California Ethics Rule

The ABA expressed support March 15 for a proposed ethics rule in California that would require the prosecutor in a criminal case to make timely disclosure of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. In connection to sentencing, the prosecutors would be required to disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutors, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. In a March 15 letter to the State Bar of California’s Office of Professional Competence, Planning and Development, ABA Governmental Affairs Director Thomas M. Susman wrote that the proposed rule (to amend Rule 5-110 and 5-220 of the state’s Rules of Professional Conduct) is based on Rule 3.8(d) of the ABA Model Rules of Professional Conduct and reinforced by ABA Formal Opinion 09-454 (2009). He pointed out that virtually all states, with the exception of California, have adopted ethics rules based on the ABA model, but he acknowledged that the ethics rule is in some respects more demanding than constitutional and statutory law because it does not restrict disclosure requirements to only favorable evidence that is “material.” Susman emphasized that an ethics rule based on Rule 3.8(d) such as the one under consideration in California would not conflict with federal or state law, but would supplement existing law. He said the ABA strongly encourages the adoption of the proposed rule.

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