Racial justice as an ethical imperative

By Teresa J. Schmid, JD, MBA, LP.D, CAE, ABA Center for Professional Responsibility

Nov. 2, 2020

The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.

On Aug. 20, the National Association of Bar Executives and the National Conference of Bar Presidents held a joint plenary session featuring speaker Jarrett M. Adams. At the age of 17, Adams was wrongfully convicted of sexual assault and served nearly 10 years of a 28-year sentence before he was exonerated with the assistance of the Wisconsin Innocence Project. After his release, Adams earned a law degree from the Loyola University Chicago School of Law and now focuses his law practice on criminal defense and civil rights. His website accurately describes his story as one of “incarceration, exoneration and redemption.” But it is also one of racial justice denied and finally compelled through the very system that denied it in the first place. The system was navigated, but not healed.

The Model Rules of Professional Conduct cannot provide a cure for experiences like Adams’, but they can provide navigational aids, some of which are not readily apparent. A close examination of two rules in particular, Rule 3.8 (Special Duties of a Prosecutor) and Rule 8.4(g) (Prohibiting Harassment and Discrimination), reveals both barriers and opportunities.

On its face, Rule 3.8 honors prosecutorial discretion while placing reasonable constraints on its use. Rule 3.8(a) prohibits prosecution of a charge that the prosecutor knows is not supported by probable cause, a low burden of proof that would support stopping a driver for suspected violation of a speed limit. It does not address the question of what happens if the prosecutor has no more than probable cause. It does not require that a prosecutor have evidence to support the ultimate burden of proof in the matter, such as proof beyond a reasonable doubt. Implicit in this de minimus charging burden is an assumption that other protections for a defendant will come into play, such as the defendant’s right to competent defense counsel who will challenge the charges, and a judicial officer who ultimately weighs the legal sufficiency of the charges and the burden of proof, and decides the outcome: dismissal or sanction, such as a fine, probation or incarceration.

In an apparent extension of prosecutorial responsibility, Rule 3.8(h) imposes an affirmative duty on a prosecutor to seek to remedy a conviction, but only where the conviction occurred in the prosecutor’s jurisdiction and there is clear and convincing evidence that the defendant did not commit the crime. So, probable cause is enough to bring a criminal charge, but clear and convincing evidence is required for a prosecutor who suspects a wrongful conviction to take action to overturn it. If the case is still pending and there is no conviction in place, Rule 3.8(d) requires a prosecutor only to disclose new evidence to the defense, again shifting the burden to the defense to determine the significance of the evidence and to use that knowledge competently. 

Rule 3.8 presents another gap in prosecutorial discretion that is not bridged by the systemic protections described above. If the prosecutor does have evidence against a potential defendant that would meet a burden of proof beyond a reasonable doubt, and the defendant is at large and is a continuing danger to the public, Rule 3.8 does not require that the prosecutor file charges against that defendant. In Adams’ case, the protections assumed by Rule 3.8 were illusory; his case was finally reversed based on ineffective assistance of counsel. The prosecutor’s charges were not effectively challenged, and the court therefore did not have enough information to order an appropriate outcome. The protective assumptions underlying Rule 3.8 collapsed when defense counsel was ineffective. Rule 3.8, even if fully enforced, would not have changed the outcome of the Adams case.

But Rule 8.4(g) may provide another lens through which a prosecutor’s duties may be analyzed. It prohibits conduct that the lawyer knows or reasonably should know is harassment or discrimination and is related to the practice of law. A prosecutor performing regular duties in the course of the prosecutor’s employment is engaged in the practice of law. The prosecutor may be in full compliance with the authority granted by Rule 3.8, but the exercise of prosecutorial discretion is still subject to scrutiny under Rule 8.4(g) for racial harassment or discrimination. A demonstrable pattern of de minimus charging against members of a certain race, or a pattern of not charging members of a certain race in the presence of overwhelming evidence of guilt, constitute ethical violations of Rule 8.4(g).

Racial justice begins with mindfulness, or a willingness for all lawyers to not only be aware of their conscious intent but also to recognize signs of implicit bias in the outcomes of their legal practice. Implicit bias is exactly that: something that is unrecognized and therefore unintentional. However, if a pattern of implicit bias is discovered and its causes are understood, continuing in the same course of conduct that results in bias can be a conscious act that is subject to the examination under Rule 8.4(g). There is and should be wide latitude given for prosecutorial discretion. But if lawyers have learned nothing else from these times, it must be that traditional beliefs about racial justice are demonstrably wrong. Racial justice is not aspirational; it is an ethical imperative.

Teresa J. Schmid is the director of the American Bar Association’s Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.   

The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.