Prosecutors seek to reform state bar discipline process

Santa Clara County prosecutors are supporting a legislative reform that would restrict the California State Bar's ability to impose discipline. The proposed reform follows the bar's recommendation that prosecutor Ben Field be suspended from the practice of law for three years. Some of the charges against Field were 10 years old. The discipline of Field, and charges recently brought against other prosecutors, apparently were prompted by a series of investigative reports by the San Jose Mercury News. (Legal ethics wonks are aware of the long-running debate about whether state bars fail to adequately discipline prosecutors and, if so, why.)

Comments

[Andrew Perlman]

John,

It's a little hard to tell from the story what was so unfair about the proceedings against Mr. Field. For the most part, bar disciplinary authorities have been far too reluctant to seek discipline against prosecutors who engage in wrongful misconduct, such as Brady violations. It seems to me that we need more disciplinary proceedings of this sort, not fewer.

[John Steele]

Without taking sides, my sense is that the prosecutors are angry that some charges are ten years old and that the prosecution was obviously a response to a newspaper account.

[Andrew Perlman]

John,

The charges may arise from acts that occurred ten years ago, but my understanding (correct me if I'm wrong) is that the misconduct came to light only recently. Indeed, it's not uncommon for prosecutorial misconduct to become evident only years after the misconduct took place. I don't see why disciplinary authorities should be frozen if the misconduct was only recently uncovered. I don't know the details about this particular case, but if the misconduct was clear enough to warrant a reversal of a conviction many years after the fact (an action courts are typically loathe to take), the evidence should be good enough to warrant a disciplinary proceeding. Again, I don't know if that's what happened here, but in general, I don't think there should be a statute of repose on prosecutorial misconduct.

As for the misconduct coming to light through a newspaper article, that alone doesn't bother me. Many newspaper stories have led to high profile prosecutions in many different contexts. If the story has merit, why not pursue charges?

[John Steele]

I'm not suggesting that the ten years or the media-driven aspects make the prosecution improper. I'm recounting some of what's driving the interest here. IIRC, the top prosecutor testified that Field fell below her standard of care in several ways.

[Monroe Freedman]

What's driving the prosecutors is fear of losing de facto immunity from any sanctions whatsoever for unethical prosecutorial conduct. Intra-office sanctions for violations of ethical and constitutional obligations are extremely rare, if not non-existent. And prosecutors are immune from civil liability for prosecutorial abuse in litigation. And disciplinary action has also been extremely rare. (Nifong was not a rogue prosecutor; his was a case of a rogue disciplinary action.) And the prosecutors want to keep it that way.

[Jerome Fishkin]

Most legal remedies have a statute of limitations and attorney discipline should be no different. While Bar prosecutors pour time into 10 and 20 year old cases, present misconduct waits in line. And it is very difficult to defend a case that age. Public protection requires the discipline of the present misconduct. There is no public protection in prosecuting somebody for something that occurred a couple decades ago.

[Monroe Freedman]

The link to the "reform" being sought by the prosecutors isn't working for me. Are they asking only for a statute of limitations? If so, that is not the same as exempting prosecutors from disciplinary action, which would be unacceptable.

If the only request is for a statute of limitations, how long is the period of limitation? And would the statute be tolled to the extent that the delay in disciplinary action is caused by the prosecutor's own success in covering up his misconduct?