Calif. Bar Endorses New Ethical Duties for Prosecutors

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By Lance J. Rogers

Oct. 3 — California prosecutors may soon be called on to take a more active role in preventing and even rectifying wrongful convictions under new professional conduct rules that were approved Oct. 1 by the state bar’s board of trustees.

The changes, if accepted by the state supreme court, will bring California’s rules into alignment with ABA Model Rule of Professional Conduct 3.8 by making clear that prosecutors have an ethical duty to disclose any evidence or information favorable to the defense without regard to the anticipated impact of the evidence on a trial’s outcome, according to Toby Rothschild, the lawyer who presented the recommended rule revisions to the trustees.

The new rules would also obligate prosecutors to take action when they learn of evidence indicating that a person convicted of a crime didn’t commit it.

“If the new rule works the way it’s supposed to, fewer innocent people will be going to jail,” Rothschild, Long Beach, Calif., told Bloomberg BNA.

Rothschild, who is a member of the state bar’s Commission for the Revision of the Rules of Professional Conduct, told Bloomberg BNA Oct. 3 that the proposal was overwhelmingly approved by the trustees, with just one “nay” vote.

“All of the public speakers—except for one representative from the Department of Justice— spoke in favor of the proposed rule,” Rothschild noted.

He clarified that he was expressing his own views and not speaking on behalf of the commission.

Fast Track

The existing rules, California Rule of Professional Conduct 5-110 and 5-220, prevent prosecutors from going forward if they know or should’ve known that the charges aren’t supported by probable cause and also make it unethical to suppress evidence that they are legally obligated to turn over.

The new amendments leave intact the duty not to suppress evidence but broaden significantly the duty to disclose by requiring prosecutors to turn over any potentially helpful evidence without first judging whether it could help lead to an acquittal.

Crackdown on Misconduct

California prosecutors who “intentionally and in bad faith alter, modify, or withhold” evidence that is relevant and material, could be guilty of a felony and go to prison for up to three years, under a new bill that was signed into law Sept. 30. The new law, AB 1909, was drafted in the wake of a jailhouse snitch scandal in Orange County that led to the disqualification of the entire district attorney’s office.

The amendments were prioritized and put on a separate track from the commission’s other work and are being sent to the California Supreme Court,.

Rothschild said he couldn’t speculate on when, or even whether, the justices would approve the amendments.

He noted, however, that some of the impetus for the special attention came from the court itself. Rothschild said that the chief justice of the California Supreme Court forwarded to the commission a letter from the Innocence Project that specifically asked that the proposed amendments on the special duty to disclose exculpatory evidence be put on an expedited track.

“They know it’s coming,” Rothschild said, because one of the court’s staff attorneys attended all the commission meetings and acted as a liaison with the court.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

For More Information

The proposed amendments are available at

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