STATE-BY-STATE INDEX OF ETHICS ADVISORY,
ATTORNEY DISCIPLINARY, AND APPELLATE OPINIONS

The following is a state-by-state listing of ethics advisory, attorney disciplinary, and appellate opinions, involving or related to ethical issues of interest to prosecutors, found through research of the opinions issued in each of the fifty states.

Some of the indexed opinions, for which the Center has received permission to post, are available on this site as pdf documents; those that are available are the exclusive work product of the Court from which they come. Most of the other documents may be located using the links located on the links page of this site (some will require use of Westlaw™ or another similar research site).

The Center will continually update this index by adding and, as necessary, deleting topic headings and ethics advisory, attorney disciplinary, and appellate opinions. Please notify the Center if an error is discovered or if you are aware of additional topic headings or ethics advisory, attorney disciplinary, and appellate opinions that should be included.

 

ALABAMA

Ethics Advisory Opinions

• AL (1993-09) Prosecutor may represent estate of deceased homicide victim with consent of estate and supervisor.
• AL (1990-05) In child support cases, attorney is vicariously disqualified when another prosecutor was substantially involved in matter.
• AL (1994-10) District attorney is not vicariously disqualified even though newly employed assistant has participated in criminal cases as defense counsel so long as new assistant is adequately screened from participation.
• AL (1995-10) Lawyer may prosecute criminal defendant represented by lawyer’s brother if lawyer’s office and brother’s client both consent.

Attorney Disciplinary Opinions

• Ex parte Lawhorn, 581 So.2d 1179 (Ala. 1991).  New Rules of Professional Conduct applicable to prosecutors.
• Brooks v. Alabama State Bar, 574 So. 2d 33 (Ala. 1990).  Because prosecutor had reason to believe conduct not governed by Code of Professional Responsibility, based on language in prior Supreme Court opinions dealing with rules governing conduct of attorneys, due process prohibited imposition of discipline on prosecutor under Code.
• Bert P. Noojin v. Alabama State Bar, 577 So. 2d 420 (Ala. 1990).  Attorney’s disciplinary suspension from practice of law due to misdemeanor contempt conviction overturned and case remanded to Disciplinary Board for further consideration due to circumstances surrounding disciplinary process, including improper delay in proceedings and one-year suspension as part of sentence on misdemeanor conviction.
• Dowling v. Alabama State Bar, 539 So.2d 149 (Ala. 1988).  Attorney cannot use campaign materials that are misleading.  “Judge Brian Dowling for District Judge” implied that candidate was judge when was not.
• Trammell v. Disciplinary Bd. of Ala. St. Bar, 431 So. 2d 1168 (Ala. 1983).  Attorney disbarred for accepting money to bribe member of Board of Pardons and Paroles.
• In Matter of Smith v. Bd. of Commissioners of Ala. St. Bar, 284 Ala. 420, 225 So. 2d 829 (1969).  Attorney disciplined for conspiring to prevent true and accurate records to be kept relating to divorce cases filed in court.

Appellate Decisions

ALASKA

Ethics Advisory Opinions

• AK (1982-2) Prosecuting attorney married to judge can continue to prosecute cases if safeguards are followed.
• AK (1984-3) Improper for prosecutor to instruct prospective witness that witness should insist on presence of prosecuting attorney, or to otherwise interfere with means of defense interview; prosecutor’s advise on subject of defense interviews should be limited to merely advising witness that witness is free to chose, whether or not, he wishes or declines to be interviewed

Attorney Disciplinary Opinions

• In matter of McNally, 901 P.2d 415 (Alaska 1995).  Attorney disciplined for failure to appear on calendar call for two separate criminal cases.
• In re Schuler, 818 P.2d 138, 141 (Alaska 1991).  District Attorney’s conviction for misdemeanor theft warranted two years' suspension, in light of mitigating circumstances.  In rendering its decision, the Court discussed the injury caused by the prosecutor’s actions:  “…the duty here was one owed to the public. In light of Schuler's position as District Attorney, his commission of a crime undoubtedly undermined confidence in the legal profession.  The public most certainly expects obedience to the law by those with authority to prosecute others for its violation. It undermines the foundations of our criminal justice system to uncover a public servant violating the very statutes he is entrusted with enforcing.  By committing a crime, Schuler violated his oath of office as District Attorney for the State of Alaska, and weakened the moral authority of the state to condemn other violations of the criminal law.  We therefore conclude that Schuler's misdemeanor theft caused "serious" injury under the relevant ABA Standards.”
• In Disciplinary Matter Involving Walton, 676 P.2d 1078 (Alaska 1984).  Attorney given public censure for creating and admitting document that purported to be first deed of trust when it actually was subordinate deed.
• Matter of Stump, 621 P.2d 263 (Alaska 1980) (Overruled as to degree of presumptive discipline in Matter of Buckalew, 731 P.2d 48 (Alaska 1986)).  Attorney suspended for five years for manufacturing document for use in his own behalf in civil case and falsely testifying that it was authentic.
• In Matter of Conduct of McNabb, 395 P.2d 847 (Alaska 1964).  Attorney disciplined for failure to appear at pretrial conferences in five different cases.

Appellate Decisions

ARIZONA

Ethics Advisory Opinions

• AZ (1985-6) District Attorneys office not considered “firm” for purposes of imputed disqualification.
• AZ (1987-19) Discovery of confidential communications between juvenile criminal defendant and his lawyer.
• AZ (1994-07) While Rule 3.8(d) might require disclosure of death of state’s witness, local discovery rule (an equivalent of Model Rule 3.4) did require disclosure; if officer had been listed as witness, prosecutor has obligation to notify defense of witness’ death; to do otherwise would be to deceive and mislead defendant and be prejudicial to administration of justice; disclosure should be made before defendant is asked to respond to any plea offer.
• AZ (1995-03) Opinion addresses propriety of lawyer surreptitiously recording telephone conversation with opposing counsel.
• AZ (1995-08) Lawyer may enter into plea agreement that includes waiver of post-conviction and collateral rights without violating ethical rules.
• AZ (1998-02) Opinion addresses whether prosecutor has duty to report criminal defense attorney’s ineffective assistance as counsel to state bar.
• AZ (2000-09) No per se conflict when part time prosecutor works as law enforcement officer.
• AZ (2000-10) Attorney working for Legal Defender’s Office may work on case opposite significant other as long as certain guidelines followed
• AZ (2001-13) Prosecutors may reveal substance of discussions with law enforcement witnesses; such discussions are not considered client confidences under ethical rules.

Attorney Disciplinary Opinions

• In Matter of Peasley, 208 Ariz. 27, 90 P.3d 764 (2004).  Prosecutor disbarred for intentionally presenting perjured testimony through police detective to establish critical fact in two separate capital murder trials.  Substantial experience, dishonest motive and repeated misconduct were all aggravating factors.
• In re Zawada, 208 Ariz. 232, 92 P.3d 862 (2004).  Prosecutor suspended for improper cross-examination of defendant’s expert in mental defense case (despite fact prosecutor aware that all mental health experts, including prosecution’s, had concluded criminal defendant mentally ill, prosecutor cross-examined defense experts intimating that experts made up mental illness diagnosis).  Prosecutor also committed violation in closing argument by attempting to cause jury to convict based on fear of future crimes by defendant.  Lengthy experience as prosecutor found to be aggravating factor because prosecutor knew actions were improper and his violations were intentional.
• In re Jett, 180 Ariz. 103, 882 P.2d 414 (1994).  Judicial misconduct committed when municipal court judge called and had her abusive boyfriend arrested and then, acting in her judicial capacity, went to detention facility and signed order for his release.
• Matter of Hansen, 179 Ariz. 229, 877 P.2d 802 (1994).  Assistant city prosecutor censured for telling court and defense counsel that complaining witness did not appear when in fact witness had appeared and prosecutor had told her she was free to leave.  When court did not recess until following day as anticipated, prosecutor told court witness had not appeared to cover her mistake.
• Matter of Horwitz, 180 Ariz. 20, 881 P.2d 352 (1994).  Attorney’s substantial usage of illegal drugs and reckless conduct while operating vehicle resulting in two deaths warranted disbarment.
• Matter of Offenhartz, 173 Ariz. 382, 843 P.2d 1274 (1992).  Defense counsel suspended for ineffective representation, i.e., representation that was so deficient that was likely different result would have been obtained by competent counsel.
• In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350 (1990).  Prosecutor suspended for representing State in case against former client.  New charge was felony DUI which required proof of previous DUI convictions, and prosecutor had represented defendant on previous DUIs.  Defendant denied previous convictions.  Defendant’s new counsel had suggested that prosecutor withdraw, and prosecutor had refused.

Appellate Decisions

• State v. Talmadge, 196 Ariz. 436, 999 P.2d 192, 197 (2000). Rebuking counsel for their “general unwillingness of trial counsel to make reasonable concessions to accommodate one another toward the goal of achieving factual stability on the record,” the Court cited to Rule 3.8 of the Rules of Professional Conduct and noted that ”[t]he duty to accomplish justice is particularly imposed on prosecutors.”

ARKANSAS

Ethics Advisory Opinions

• AR (2003-02) Law partner of part time judge may handle criminal matter outside judge’s jurisdiction.

Attorney Disciplinary Opinions

Appellate Decisions

CALIFORNIA

Ethics Advisory Opinions

• CA (1966-05) In regard to telephone recording, ethical rules applied to public officials are same as applied to private attorneys.
• CA (1976-39) Improper, after trial, to inform juror of inadmissible facts of prejudicial or aggravating nature.
• CA (1976-40) Opinion addresses whether prosecutor can inform victim of possible civil remedies.
• CA (1979-49) Opinion addresses propriety of communications with represented criminal defendant in different matter.
• CA (1984-83) When public defender is married to district attorney, they must disclose such information to client and court.
• CA (1986-87) Opinion addresses whether prosecutor should disclose criminal defendant’s past criminal record at sentencing hearing when that information is on public record.
• CA (1987-93) Deputy District Attorney must disclose to court relationships with bailiff or court reporter.
• CA (1989-106) Opinion addresses propriety of dismissal conditioned on defendant stipulating that there was probable cause for arrest and relieving police from civil liability.

Attorney Disciplinary Opinions

• In matter of Brown, 2 Cal. State Bar Ct. Rptr. 309 (1993).  Attorney, who had been disbarred for conspiring with clerk of court to lower DUI charges to reckless driving upon guilty pleas, met burden of proof required to show that he was rehabilitated and it was recommended that he be reinstated to Bar of State of California.  Opinion contains review of reinstatement procedure and burden of proof.
• In Matter of Respondent A, 1 Cal. State Bar Ct. Rptr. 255 (1990).  Attorney disciplinary proceedings dismissed where court found attorney communicated with jurors post-trial, but had no intent to harass, embarrass or influence further jury service.

Appellate Decisions

• Santa Barbara v. Superior Court, 122 Cal. App. 4th 17, 18 Cal. Rptr. 3d 403 (Cal. App. 2 Dist. 2004). City attorney’s office not disqualified on basis of incoming lawyer’s conflict in ordinary civil case, even if incoming lawyer did substantial work for former client, as long as city attorney’s office creates and maintains ethics wall to protect confidentiality of attorney-client communications in previous representation.

COLORADO

Ethics Advisory Opinions

• CO (1982-60) Lawyer has affirmative duty to surrender incriminating evidence in his possession, but must not reveal identity or communications of client; if lawyer only observes incriminating evidence as result of representation of client and does not handle, disturb or alter it, he must not disclose observations to authorities.
• CO (1982 & 1995-62) Ethical considerations arising from prosecutor’s dismissal of criminal charges for release of civil claims.
• CO (1984-65) Unethical for attorney or his representative to advise or to imply to potential witness that he should not submit to pre-trial interview by opposing counsel
• CO (1994-96) Opinion addresses propriety of ex parte communications with represented persons during criminal and civil regulatory/investigations and proceedings.
• CO (1995-70) After verdict has been returned, it is improper for attorney who has participated in trial to tell jury about information that was not presented at trial, if such information is disclosed to jury with intention of or in spirit of criticizing jury’s decision, influencing actions of jurors in future jury service, harassing jury, or otherwise behaving improperly toward jurors in any manner prohibited by Code of Professional Responsibility
• CO (1996-64) Opinion addresses duty to report ethical violation and knowledge one must have to make such determination.
• CO (1998-102) In criminal proceeding, lawyer may not issue or cause to be issued subpoena without providing copy of subpoena to opposing counsel.
• CO (2000-108) Opinion addresses ethical obligations when attorney receives privileged or confidential documents inadvertently disclosed by opposing party.

Attorney Disciplinary Opinions

• In re Roose, 69 P.3d 43 (Colo. 2003).  Attorney disciplined for walking out of courtroom during course of trial.  Court had specifically ordered attorney to stay in courtroom.
• People v. Smith, 74 P.3d 566 (Colo.O.P.D.J. 2003).  Attorney suspended for nine months for failure to adequately supervise non-lawyer staff person (paralegal) who neglected client’s matter.
• In re Attorney C, 47 P.3d 1167, 1171 (Colo. 2002).  Prosecutor alleged to have violated Rule 3.8(d) by failing to turn over evidence to defense prior to preliminary hearing.  As a matter of first impression, Court addressed whether 3.8(d) incorporates a materiality standard.  “We have explicitly adopted a materiality standard with respect to our procedural [discovery] rules, and we are disinclined to impose inconsistent obligations upon prosecutors.  We therefore also adopt a materiality standard as to the latter, such that we read Rule 3.8(d) as containing a requirement that a prosecutor disclose exculpatory, outcome-determinative evidence that tends to negate the guilt or mitigate the punishment of the accused….  We clarify that the materiality standard relates not to a specific proceeding in the criminal case, which could be a hearing on a bond or a hearing on the admissibility of certain evidence unrelated to the withheld evidence, but rather to the broader criminal proceeding itself. Material evidence, in this sense, is any evidence tending to be outcome determinative at trial.  However, materiality itself is not time-sensitive, and does not come and go depending upon the nature of the next hearing.  We do not accept the argument that the evidence need only be disclosed in advance of a proceeding at which that evidence would be specifically determinative.  Rather, we conclude that if evidence is material to the outcome of the trial, then the prosecutor must disclose that evidence in advance of the next critical stage of the proceeding--whether the evidence would particularly affect that hearing or not.”  Court concluded that while prosecutor not timely disclose evidence subject to disclosure under 3.8(b), ethical rule was not clear, as it had not previously been interpreted by Court, and prosecutor’s actions could not be held to be intentional.  Therefore no violation of 3.8(d).
• In re Attorney C, 47 P.3d 1167 (Colo. 2002).  Application of rule of professional conduct regarding special responsibilities of prosecutor in criminal trial requires court to impose materiality standard; when prosecutor is aware of exculpatory evidence before any critical stage of proceeding, it must be disclosed before proceeding takes place; rule of professional conduct governing duty of prosecutor to timely disclose exculpatory evidence includes mens rea of intent; and, under facts of this case, failure to disclose exculpatory evidence to counsel for accused until after preliminary hearing did not violate rules of professional conduct.
• In re Cardwell, 50 P.3d 897 (Colo. 2002).  Defense counsel disciplined for making knowingly false representations to prosecutor regarding client’s criminal history to induce plea agreement and to court for sentencing purposes.
• In re Pautler, 47 P.3d 1175 (Colo. 2002).  Deputy District Attorney disciplined for misrepresenting himself as public defender in attempt to convince wanted murder suspect to turn himself in.  Court held that ‘[n]o imminent public harm exception existed to the ethical principle that a lawyer may not engage in deceptive conduct, and thus deputy district attorney who deceived a murder suspect in order to encourage his surrender was not justified in violating the professional conduct rule prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation.”
• People v. Mucklow, 35 P.3d 527 (Colo. 2000).  Prosecutor violated duty to disclose when he failed to inform defense, before preliminary hearing in sexual abuse case, that child victim had recanted portions of her earlier statements and advanced new and different version of prior events.
• People v. Mucklow, 35 P.3d 527, 537-538 (Colo. 2000).  Prosecutor failed to disclose fact that complaining witnesses had recanted/changed stories to defense, in two separate cases, prior to preliminary hearing; in one case, prosecutor acted on advice of elected prosecutor.  Court, referring to ABA Model Rules of Professional Conduct, noted that prosecutor’s obligations to see that accused is accorded procedural justice and that guilt is decided upon basis of sufficient evidence, including consideration of exculpatory evidence known to prosecution, goes beyond corollary duty imposed upon prosecutors by constitutional law.  “The Rules of Professional Conduct, unlike the rule of law enunciated in Brady, are not premised upon minimal constitutional conformity. Rather, the Rules of Professional Conduct are intended to set forth minimum standards of professional conduct for attorneys licensed to practice law.  In most instances, compliance with the Rules' provisions is tested against the conduct of the attorney, not the effect of that conduct upon others.  Because Colo. RPC 3.8(d) focuses only upon the attorney's conduct, unlike the requirements of Brady and the cases which apply its constitutional mandate, the effect of the questioned conduct upon the underlying criminal proceeding is not relevant for purposes of determining whether a violation of the rule transpired.” Noting that what constitutes timely disclosure for purposes of Rule 3.8(d) depends on facts and circumstances of each case, Court held prosecutor’s decision to not turn over exculpatory information in both cases prior to preliminary hearings because she believed information would not change outcome of proceedings is not valid reason to circumvent Rule 3.8(d).  Interesting dissenting opinion (taking position that insufficient evidence of violation of Rule 3.8).
• People v. Bonner, 927 P.2d 836 (Colo. 1996).  Defense counsel in criminal case disciplined for not reviewing police reports, preliminary hearing transcript or anything else after being retained by defendant.  When court became aware of same, it informed defendant and allowed him to hire new counsel.  Complaint with disciplinary authority was filed.
• People v. Janiszewski, 901 P.2d 476 (Colo. 1995).  Attorney disciplined for asking questions in jury trial which specifically called for information ruled to be inadmissible in pretrial hearing.  Attorney also mentioned that evidence in closing argument.
• People v. Reichman, 819 P.2d 1035 (Colo. 1991).  Prosecutor disciplined for filing sham complaint and preparing sham report against undercover police officer in order to help protect identity of police officer.
• People v. Brown, 726 P.2d 638 (Colo. 1986).  District Attorney disbarred after he was convicted of altering official documents.  He prevailed upon employee of driver control bureau to alter his driving record by deleting two convictions for speeding because they were resulting in higher insurance premiums.
• People v. Tucker, 676 P.2d 680, 681 (Colo. 1983).  District Attorney billed two counties in his district for same expenses related to attendance of convention in company of female informer.  During his criminal trial for related theft, he testified on cross-examination to not know the whereabouts of female companion when, in fact, he had purchased airline ticket for her month earlier to travel out-of-state under assumed name.  Finding that Tucker’s “conduct while in office not only contravened Colorado criminal statutes, but also flagrantly violated minimal standards of candor and honesty required of all who are admitted to the practice of law in this jurisdiction”, Court suspended him from practice of law.
• People ex rel. Colorado Bar Ass’n v. ____, Attorney at Law, 90 Colo. 440, 442-443, 9 P.2d 611 (Colo. 1932).  Part-time Deputy District Attorney disciplined for submitting claim for reimbursement of secretary’s full salary when he only paid half salary, rest being paid by person with whom he shared office space.  Court also found the district attorney’s filing of civil suits arising out of same facts for which he was prosecuting defendant criminally to constitute misconduct.  “This anomalous conduct could not be made to square with professional ethics by his later withdrawal from the criminal cases.  The merest novice in the profession should know that civil liabilities may not be enforced by threats of criminal prosecution any more than they may be enforced by threats of physical violence, and that any conduct which has the appearance of a resort to such course is as bad, in law, as the thing itself.  If B did not use his public office to collect the claims of his private clients, he put himself in the position of appearing to do so and justified the charge.  If a prosecutor in this state has a private interest in a criminal case under his jurisdiction, it is made the court's duty to appoint another to act for him.  In such a case he should not act even by consent.”
• People v. Anglim, 33 Colo. 40, 78 P. 687 (1904).  District Attorney disbarred for accepting money from saloon keepers and gamblers in return for not prosecuting them, as well as demanding money from victim in theft case to commence prosecution.

Appellate Decisions

• People v. Julien, 47 P.3d 1194 (Colo. 2002). Fact that judge was team leader in District Attorney’s Office five weeks before his assignment to defendant’s case was not sufficient basis for disqualifying judge, where judge did not participate in case against defendant.
• People v. Witty, 36 P.3d 69 (Colo. App. 2000). District Attorney’s Office disqualified from prosecution of defendant who had earlier been charged with unrelated theft from District Attorney Office’s retirement plan and was defendant in related civil suit.
• People v. Merchant, 983 P.2d 108 (Colo. App. 1999). Prosecutor not disqualified because may have represented defendant’s mother while in private practice.
• People ex rel. Sandstrom v. District Court In and For County of Pueblo, 884 P.2d 707 (Colo. 1994). Prosecutor’s simultaneous involvement in criminal case and forfeiture case did not require disqualification of prosecutor, since neither prosecutor nor office would receive personal benefit from outcome of either case.
• People v. County Court, City and County of Denver, 854 P.2d 1341 (Colo. App. 1992). Special prosecutor appointed where prosecutor initiated and became involved in physically subduing defendant and in effecting arrest, and deputy prosecutor became complaining witness against defendant in new charges arising from altercation with prosecutor.
• McFarlan v. District Court In and For Fourth Judicial District, 718 P.2d 247 (Colo. 1986). Prosecutor is not disqualified where member of former law firm represents co-defendant.
• People v. Son, 723 P.2d 1337, 1342 (Colo. 1986). Prosecutor’s communication with defendant, which related solely to unrelated criminal charges and not pending charges for which defendant had counsel, was not in violation of disciplinary rules. “To hold that DR7-104(A)(1) is violated by any communication between a defendant who has obtained counsel on pending charges and agents of the prosecution would preclude prosecutorial agents from investigating possible obstructions of justice such as jury tampering, bribery, or intimidation of witnesses. Accepting the defendant's interpretation of DR7-104(A)(1) would convert the rule into a shield of immunity from investigation for subsequent criminal acts committed by a defendant who has acquired the services of counsel in connection with a criminal charge. We decline to construe DR7-104(A)(1) in such a manner….”
• People v. Garcia, 698 P.2d 801 (Colo. 1985). Entire staff of District Attorney disqualified where deputy district attorney was called as witness for prosecution on bail bond violation, and his testimony was relevant and necessary to prove essential element of offense charged.
• Pease v. District Court In and For Ninth Judicial District, 708 P.2d 800 (Colo. 1985). Entire staff of District Attorney’s Office was disqualified where two attorneys in office were expected to provide testimony relevant and material to issue of defendant’s guilt, despite fact two attorneys had recently resigned from office.
• People v. Rubanowitz, 688 P.2d 231, 248 (Colo. 1984). Prosecutor’s investigator in charge of general investigation into activities of group to which defendant belonged. While investigator interviewing child named as child abuse victim in subsequently filed information against defendant, defendant unexpectedly entered child's residence, interrupted interview, and began to describe group’s activities. Investigator told defendant to stop talking and consult his attorney. Three days later, Investigator and others met with defendant and defendant's attorney; defendant volunteered certain information and agreed to provide Investigator with documentary evidence related to group. Defendant’s attorney told him not to talk with or disclose any documents to police in his absence. Investigator subsequently met with defendant on two occasions without defendant’s attorney; defendant provided investigator with documents at both meetings. Investigator did not advise defendant of his Miranda rights at any time after initial meeting. Court rejected defendant’s contention that investigator’s actions violated disciplinary rule by finding that defendant, who had counsel and acted contrary to his advice, knew he was subject of investigations and, therefore, “policy of advance warning to potential defendants which underlies ABA Standard 3-3.2(b) and Disciplinary Rule 7- 104(A)(1) was fully satisfied here.”
• People v. Stevens, 642 P.2d 39 (Colo. App. 1981). Special prosecutor should be appointed where former attorney for defendant joined District Attorney’s Office.
• People v. Mulligan, 568 P.2d 449 (Colo. 1977). Citing to ABA Standards Relating to Fair Trial and Free Press, ABA Standards Relating to The Prosecution Function, and Code of Professional Responsibility, Court stated could not condone participation of prosecutor and deputy prosecutor n radio interview about case.
• People v. Jiminez, 528 P.2d 913 (Colo. 1974). Part-time prosecutor may practice civil law in matters unrelated to performance of official duties.

CONNECTICUT

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Notopoulos v. Statewide Grievance Committee, 85 Conn. App. 425, 857 A.2d 424 (2004).  Attorney disciplined for making reckless comments in letter to judge about probate judge’s purported acceptance of money to perform duties in estate when he had no evidence of same.
• Massameno v. Statewide Grievance Committee, 234 Conn. 539, 663 A.2d 317 (1995).  Case arose from allegations that prosecutor had talked to complaining witness in unauthorized absence of her attorney in violation of Rule 4.2, had prosecuted case in absence of probable cause as required by Rule 3.8, had violated Rules 3.4 and 3.5 by requesting psychiatric assessment of child witnesses, and Rule 4.4 by improper cross-examination of defense witness.  Proceedings stayed until prosecutor’s assertion that separated of powers doctrine prohibited judicial branch from disciplining prosecutors.  Court, thoroughly analyzing the issues involved, held judicial supervision of attorneys through disciplinary process does not violate separation of powers doctrine when applied to prosecutors.  [Outcome of disciplinary proceeding not known.]

Appellate Decisions

• State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004). Failure to have defendant present during in-chambers hearing deciding whether conflict of interest required disqualification of his trial counsel was error requiring reversal.
• State v. Boulier, 81 Conn. App. 824, 841 A.2d 1217 (2004). A prosecutor involved in plea negotiations with defendant may file additional charges and seek greater sentence if defendant does not accept State’s offer provided prosecutor does not act with vindictiveness.
• State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980), overruled on other grounds, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982). Fact that partner in prosecutor’s law firm represented defendant’s father regarding property damage claim did not require disqualification of prosecutor from prosecution of defendant, since property claim did not involve son in any way.

DELAWARE

Ethics Advisory Opinions

• DE (1979-02) After hung jury, prosecutor may not speak with juror about juror’s frustration with outcome and areas that gave jury difficulty.
• DE (1989-05) Attorney is not prohibited from representing criminal defendants while spouse is prosecutor with Attorney General’s office, provided safeguards are put in place.
• DE (2003-01) Solicitor may not give legal advice to city police trial board and police association dealing with same disciplinary case.

Attorney Disciplinary Opinions.

• In re Guy, 756 A.2d 875 (Del. Supr. 2000).  Defense attorney disciplined for failure to interview known potential defense witnesses, failure to properly inform defendant of possible consequences of rejection of plea offer, failure to attend first scheduled sentencing appearance, and failure to file appeal in timely manner.
• Matter of Ramunno, 625 A.2d 248 (Del. 1993).  Attorney disciplined for referring to opposing counsel in “crude, but graphic, anal term” heard only by court.  Court found attorney in contempt and fined him $150.00.  Attorney appeared in same court following day and asked court to recuse itself, arguing that judge might be mad at him from previous day.  When court assured counsel that he did not get mad, counsel responded with, “You get even.  Is that what you are saying?”  Court again found counsel in contempt and fined him again.  Ethics complaint followed, and Supreme Court held that Ramunno’s conduct constituted unprofessional conduct warranting public censure.

Appellate Decisions

• U.S. v. Gordon, 334 F. Supp. 2d 581 (D. Del. 2004). Attorney who represented county in grand jury investigation of corruption could not represent county official who was indicted for activities investigated by that grand jury.

DISTRICT OF COLUMBIA

Ethics Advisory Opinions

• DC (1983 -129) Opinion addresses ethical considerations that arise with employees of adverse party who is represented by counsel.
• DC (1992-229) Attorney cannot make misrepresentations about tape recording meeting with opposing party.
• DC (1996-263) According to Rule 4.2, attorney cannot communicate with represented person without that person’s attorney’s consent.
• DC (2001-303) Unaffiliated lawyers may share office space and related services as long as they don’t compromise confidentiality.
• DC (2001-308) Prosecutor who left private practice for government service owes continuing obligations to former clients.

Attorney Disciplinary Opinions

• In re Sims 861 A.2d 1 (D.C. 2004).  Attorney for driver’s license administrative board disbarred for fixing tickets for family members and friends.  Conviction for misdemeanor arising out of said conduct involved moral turpitude.

Appellate Decisions

• Al Odah v. U.S., 346 F. Supp. 2d 1 (D.D.C. 2004). Government’s proposed real time monitoring and classification review procedures for legal mail and attorney notes “impermissibly burden the attorney-client relationship and abrogate the attorney-client privilege.” Court offered alterative procedure.

FLORIDA

Ethics Advisory Opinions

• FL (1964-72) Prosecuting attorney before county judge’s court may not act as defense counsel in criminal cases in same county.
• FL (1966-01) Law partner of an assistant state attorney may not engage in criminal defense practice.
• FL (1968-35) Not appropriate for associate of state attorney to take criminal defense appointment.
• FL (1968-57) Conflict of interest exists when attorney serves as public defender and county prosecuting attorney simultaneously.
• FL (1969-26) Prosecutor should not sit as judge in court he normally prosecutes in.
• FL (1970-38) Conflict of interest exists when part-time prosecutor or member of firm handles criminal defense work.
• FL (1970-43) Ethical considerations dealing with publicity for those representing governmental interests are similar to attorney’s representing private individuals.
• FL (1972-46) Subject to any constitutional privilege, lawyer should not originate public statements pertaining to litigation in which he is involved.
• FL (1972-48) No conflict of interest exists when county lacks number of attorneys needed to take criminal defense cases and newly appointed assistant state attorney and partner continue to serve as court-appointed defense counsel.
• FL (1973-09) Not improper for full-time assistant state attorney to give legal advice concerning purely civil matters.
• FL (1975-14) Conflict of interest exists when firm of part-time assistant attorney represents public body in suit in which state attorney will be served with process for response on behalf of public.
• FL (1976-04) Prosecutor may use confidential information gained from law enforcement in criminal prosecution in relative civil action against law enforcement.
• FL (1978-05) In some circumstances, attorney cannot serve as prosecutor when his partner serves as criminal defense lawyer.
• FL (1990-04) Rule 4-4.2 governing communications with person represented by counsel contains no exceptions for activities of U.S. Department of Justice attorneys.
• FL (1994-02) Attorney may advise crime victims of existence of civil restitution lien remedy provided by 1994 Act, but attorney must also inform victim that attorney only represents state and should advise victims to seek independent counsel regarding their legal rights.
• FL (1995-70) In some circumstances, it is improper for attorney to communicate with jury after trial has ended.

Attorney Disciplinary Opinions

• In Re Kinsey, 842 So.2d 77 (Fla. 2003). Former prosecutor/judicial candidate’s platform stressing allegiance to police officers and pledging to help police by putting criminals where they belong (“behind bars”) and to “bend over backwards” to protect victims violated canon of ethics prohibiting candidate from making statements that commits candidate with respect to cases likely to come before court.
• The Florida Bar v. Von Zamft, 814 So.2d 385 (Fla. 2002).  Prosecutor disciplined for ex parte communication with judge, personal friend with whom he was having lunch, regarding motion in capital murder case after being told by judge not to discuss case.
• Tyson v. Florida Bar, 826 So.2d 265, 268 (Fla. 2002).  Incarcerated defendant filed complaint against prosecuting attorney for failure to disclose evidence and use of perjured testimony; Bar counsel investigated and found no basis for complaint.  Defendant then petitioned Court to issue writ of mandamus requiring Bar proceed with disciplinary proceeding.  In rejecting petition, Court reiterated that “purpose of an attorney disciplinary proceeding is the protection of the public, not the vindication of private rights:  ‘Disciplinary proceedings against attorneys are instituted in the public interest and to preserve the purity of the courts.  No private rights except those of the accused attorney are involved.’  Accordingly, petitioner had no clear legal right to have the Bar proceed with disciplinary charges against the assistant state attorney and therefore is not entitled to the mandamus relief he seeks.”
• The Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001).  Prosecutor suspended for concealing testifying informant’s true name from defense counsel, judge and jury.  Prosecutor knew informant’s correct name but, listed her on complaint by name she had used during Internet child pornography investigation.  Witness had admissible prior convictions.  Presumptive penalty was disbarment. 

Appellate Decisions

• Wallace v. State, 689 So.2d 1159, 1164 (Fla. App. 1997), quashed on other grounds, State v. Wells, 734 So.2d 402 (Fla. 1999). “There is no presumption of prosecutorial vindictiveness when additional charges are filed, even at the beginning of trial, after a defendant's refusal to plead guilty to the initially charged crimes.”
• Reaves v. State, 574 So.2d 105 (Fla. 1991). Prosecutor who previously defended defendant in any criminal matter that involved confidential communications disqualified from prosecuting defendant, but prosecutor not disqualified if represented defendant in perfunctory matter, such as at motion hearing for which did not receive confidential information.
• Meggs In and For Second Judicial Circuit of Florida v. McClure, 538 So.2d 518 (Fla. 1989). Entire prosecutor’s office not disqualified from criminal prosecution relating to death of relative of one prosecutor, who does not participate in prosecution.
• State v. Clausell, 474 So.2d 1189 (Fla. 1989). Entire office of prosecutor not disqualified when he is called as witness in case prosecuted by office. While there exists no “inherent right” to disqualification of entire prosecutor’s office when member is called as witness in case prosecuted by other attorney in same office, motion to disqualify should be granted if actual prejudice is shown.
• Preston v. State, 528 So.2d 896 (Fla. 1988). Prosecutor not disqualified where he had represented defendant on unrelated misdemeanor charge several years before.
• State v. Fitzpatrick, 464 So. 2d 1185 (Fla.1985). Entire States Attorney’s Office was not disqualified by employment of defendant’s prior attorney, since defense attorney did not divulge confidential information and did not participate in prosecution of case.
• Suarez v. State, 481 N.E.2d 1201 (Fla. 1985). Prosecutor prohibited from communicating with defendant known to be represented by attorney without obtaining prior consent of attorney, although defendant initiated contact and was willing to speak with prosecutor.

GEORGIA

Ethics Advisory Opinions

• GA (86-01) Conflict of interest created by dual employment by part-time solicitor.
• GA (86-03) No per se disqualification of county attorneys from representing criminal defendants, unless defendant charged with violation of county ordinance.
• GA (1993-03) Ethical propriety of prosecutor conditioning plea agreement in criminal case on waiver of defense counsel’s fee.

Attorney Disciplinary Opinions

• Matter of Carlson, 268 Ga. 335, 489 S.E.2d 834 (1997).  Attorney, convicted of flagrant failure to pay child support, was held to have committed crime of moral turpitude and thus violated ethical rules.  License suspended for twelve months or until child support arrearage was fulfilled, whichever period was longer.
• Matter of Palmer, 259 Ga. 501, 384 S.E.2d 671 (1989).  Attorney disbarred for taking fee to represent client in court in which not admitted to practice, neglecting matter entrusted to him, and failing to cooperate or respond in investigation of grievance complaint  Attorney disbarred.
• Matter of Atkins, 253 Ga. 319, 320 S.E.2d 146 (1984).  Defense counsel in capital murder case disbarred for failure to familiarize himself with even most basic trial procedures.  Counsel was unaware before commencement of trial that there were two phases to capital case, presented no mitigation witnesses, and made closing argument in punishment phase that consisted of four sentences. 
• Matter of Mitchell, 244 Ga. 766, 262 S.E.2d 89 (1979).  Attorney who not only encouraged witnesses to testify falsely in paternity hearing, but also called them so could testify falsely was disbarred.

Appellate Decisions

• Sealey v. State, 277 Ga. 617, 593 S.E.2d 335 (2004). Entire District Attorney’s Office not disqualified on basis of prior representation of defendant on unrelated charge by one assistant district attorney, where assistant district attorney did not participate in pending trial.
• Brown v. State, 256 Ga. App. 603, 568 S.E.2d 727 (2002). After prosecutor leaves office, he should not accept employment in connection with any matter in which he had substantial responsibility prior to leaving.
• Daker v. State, 257 Ga. App. 280, 570 S.E.2d 704 (2002). Prosecutor’s office not disqualified because defendant filed civil lawsuit against office.
• Todd v. State, 261 Ga. 766, 410 S.E.2d 725 (1991). No conflict of interest when prosecutor employed by District Attorney’s Office during trial became law clerk of judicial circuit while motion for new trial was pending since prosecutor not involved in case while employed in either position.
• Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (Ga. 1988). While permissible for prosecutor to argue to jury that facts lead to conclusion defendant is guilty, it is improper for prosecutor to express personal opinion that defendant is guilty in presence of jury.
• Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (1988). Third trial of defendant ended in hung jury; prosecutor made comment to press that was confident next time he’d get “the right result.” Citing to the Georgia disciplinary rules, Court reiterated that extra-judicial statement with respect to prosecutor's or defense counsel's opinion on guilt or innocence of defendant, evidence, or merits of case is expressly prohibited. Court did note that rules do not prohibit lawyer from replying to publicly made charges of misconduct against him.
• Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988). Prosecutor not disqualified where prosecutor might be civilly liable to defendant for violating his rights under Interstate Agreement on Detainers.
• Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987). District Attorney’s Office not disqualified from prosecuting defendant based on fact that two attorneys, who had separately represented defendant and co-defendant for brief period almost one year before defendant’s trial, were hired by district attorney’s office, since attorneys did not participate in any aspect of criminal trial.
• Pope v. State, 256 Ga. 195, 345 S.E.2d 831 (1986), overruled on other grounds, Nash v. State, 271 Ga. 281, 519 S.E.2d 893 (1999). Improper for prosecutor, who had been judicial law clerk during defendant’s trial, to work on direct appeal for state.
• Brown v. State, 177 Ga. App. 284, 339 S.E.2d 332 (1985). No conflict resulted from Special Assistant Attorney General having dual role of giving legal advice to officers or employees of Department of Labor and prosecuting officers or employees who violated law.
• Thompson v. State, 254 Ga. 393, 330 S.E.2d 348 (1985). Actual conflict of interest must be shown to disqualify partner or associate of part-time prosecutor from representation of defendant.
• Davenport v. State, 157 Ga. App. 704, 278 S.E.2d 440 (1981). Where prosecutor cognizant of information and incidents that occurred between husband and wife by virtue of his prior representation of husband in divorce proceedings, prosecutor could not participate in prosecution of wife for committing aggravated assault on her husband.

HAWAII

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Office of Disciplinary Counsel v. Breiner, 89 Haw. 167, 969 P.2d 1285 (1999).  Six month suspension warranted due to attorney’s behavior in single trial (consisting of argument during opening statements, argumentative and disrespectful cross-examination, and improper comments in presence of jury on two occasions) which resulted in attorney being convicted of four counts of criminal contempt of court by trial judge, prolonged trial itself, and required prosecution and defendant’s subsequent counsel to expend considerable time on appeal addressing effect of attorney behavior before trial court.

Appellate Decisions

IDAHO

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• In re Petition for Review of Hearing Committee of Professional Conduct Board, 140 Idaho 800, 102 P.3d 1119 (2004).  Attorney disciplined for obtaining grand jury transcript without order of court in case he was prosecuting and giving copy of that transcript to third party engaged in civil litigation against same defendant.
• Idaho State Bar v. Malmin, 139 Idaho 304, 78 P.3d 371 (2003).  Attorney disciplined for violation of 8.4(c) (professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation) due to telling client that papers had been filed when they had not. 
• Idaho State Bar v. Warrick, 137 Idaho 86, 44 P.3d 1141 (2002).  Prosecuting attorney discipline for (1) failing to take timely and reasonable remedial measures when prosecuting witness gave false testimony in criminal matter in violation of Rule 3.3(a)(4); and (2) writing offensive words next to name of inmate he was prosecuting on inmate board at jail in violation of Rule .4.4(a).
• Idaho State Bar v. Gantenbein, 133 Idaho 316, 986 P.2d 339 (1999).  Attorney found to have violated Rule 3.4 and 4.1 as result of redacting information from medical report during discovery in personal injury action.  Attorney suspended for 24 months.
• Runsvold v. Idaho State Bar, 129 Idaho 419, 925 P.2d 1118 (1996).  Court held that pro se lawyer/litigant does represent client when representing himself or herself in matter; thus, Rule 4.2 applies to prevent pro se attorney from directly contacting represented opposing party.  Court also held that no actual harm need be proved for rule violation to have occurred, and that – because rules are designed to prevent harm, not just to sanction attorneys after harm has been done – lawyer can be disciplined whether or not conduct caused actual harm to another.
• Idaho State Bar v. Topp, 129 Idaho 414, 925 P.2d 1113 (1996).  County Attorney publicly reprimanded for making derogatory comments impugning qualifications and integrity of judge.
• Matter of Eliasen, 128 Idaho 393, 913 P.2d 1163 (1996).  Eliasen obtained judgment against patient for dentist; when patient told lawyer unable to satisfy judgment, lawyer wrote letter telling patient that if he did not pay within set period of time, he would report nonpayment to DMV and patient’s driver’s license would be suspended.  Patient contacted lawyer who told him Eliasen was incorrect and patient wrote letter to Eliasen telling him what lawyer told him; Eliasen wrote another letter to patient in which he repeated statement that patient’s driver’s license would be suspended if he did not pay judgment.  Only after second letter did Eliasen contact DMV and find out that his understanding of law was incorrect; he did not contact patient to correct misstatement. Court held that Eliasen knowingly made false statement of law in second letter sent to patient in violation of rules, and public censure was appropriate.

Appellate Decisions

• State v. Robinson, 115 Idaho 800, 770 P.2d 809 (1989). Prosecutor’s initiation of conversation with criminal defendant during trial recess promising rigorous cross-examination was improper communication with party known to be represented by counsel.

ILLINOIS

Ethics Advisory Opinions

• IL (1988-10) Ethical propriety of communications with adverse party that attorney knows to be represented by counsel.
• IL (1989-04) It is professionally improper for newly elected State’s Attorney to continue and expand his predecessor’s direct communication with accused person represented by counsel without consent of lawyer for accused.
• IL (1989-16) It is not professionally improper for attorney to condition DUI plea agreement upon defendant’s dismissal of related civil proceeding to rescind statutory summary suspension.
• IL (91-22) Lawyer who is part time state district attorney may not represent defendants in criminal matters in contiguous county.
• IL (94-16) Lawyer who represents criminal defendants may accept juvenile cases as Special Prosecutor with full disclosure and consent.
• IL (1999-05) Ethical propriety of prosecutor withdrawing from plea agreement for personal reasons.

Attorney Disciplinary Opinions

• Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Tofflemire, 689 N.W.2d 83 (Iowa 2004).  Attorney disciplined for working part time as public defender while working full time state job and using sick leave from that job to make court appearances for public defender.  Also submitted false expense reports to public defender.
• In re Parker, 149 Ill. 2d 222, 595 N.E.2d 549 (1992).  Attorney reinstated to bar after nine year disbarred upon conviction of conspiracy to distribute marijuana. Discusses process for reinstatement to Bar.
• In re Lidov, 129 Ill. 2d 424, 544 N.E.2d 294 (1989).  Attorney suspended for making personal loan to judge seeking election to Supreme Court when attorney had case pending before judge and loan made in cash to judge rather than campaign committee.
• In re Crisel, 101 Ill. 2d 332, 461 N.E.2d 994, 999 (1984).  Crisel, elected prosecutor, who failed at attempt to kill self with gun, filed false police report to cover up bullet holes inside car.  Court found that fabrication of report that attorney was victim of crime showed dishonesty and misrepresentation.  “Respondent's intentional misrepresentations were closely related to, and in complete contravention of, his responsibility as a State's Attorney, to enforce the law. These acts were evidence of his lack of professional and personal honesty, threatening the integrity of the legal profession and the administration of justice.”  Crisel was suspended, but suspension was stayed and he was put on probation due to psychologically impairment.
• In re Lane, 127 Ill. 2d 90, 535 N.E.2d 866 (1982).  Attorney suspended for one year for personally loaning judge $2,500 to assist judge in paying campaign expenses, rather than giving money to campaign fund.
• In re Howard, 69 Ill. 2d 343, 372 N.E.2d 371 (1978).  Attorney disciplined for, inter alia, paying $50 to two different police officers in attempt to influence their testimony, telling office he had things “set” with judge and telling officer that would be spending money with prosecutor’ s office.
• In re Kien, 69 Ill. 2d 355, 372 N.E.2d 376 (1977).  Attorney disciplined for offering bribe to police officer.

Appellate Decisions

• People v. Stafford, 325 Ill. App. 3d 1069, 759 N.E.2d 115, 121 (2001). “This court has held that prosecutorial vindictiveness occurs when reindictment would subject a defendant to increased sanctions or when reindictment takes place after the State has terminated part of an indictment by way of motion for an order of nolle prosequi and the defendant has successfully appealed his conviction. Under such circumstances, reindictment is vindictive because the State is retaliating from the defendant's successful appeal by reindicting. ‘Such conduct by prosecutors creates an enormous potential for discouraging defendants from appealing legitimately for fear of greater or additional offenses arising out of the same cause of action.’ When there is a realistic likelihood of vindictiveness, the State bears the burden of demonstrating objective on-the-record facts which justify a decision to prosecute charges previously nol-prossed.” (citations omitted.)
• People v. Tainter, 294 Ill.App.3d 634, 691 N.E.2d 55 (Ill. App. 1998), vacated on other grounds, 304 Ill.App.3d 847, 710 N.E.2d 158, 237 Ill. Dec. 735 (Ill. App. 1999). Generally not improper to offer defendant reduced sentence to plead guilty but to recommend greater sentence if offer refused, particularly when sentence is within statutory limits.
• People v. Arrington, 297 Ill.App.3d 1, 696 N.E.2d 1229 (1998). No conflict of interest in prosecutor prosecuting defendant for robbing store owned by prosecutor’s cousins where no evidence prosecutor’s relationship with store involved strong emotional ties such that his personal interests influenced discharge of official duties.
• People v. Courtney, 288 Ill. App. 3d 1025, 687 N.E.2d 521 (1997). Where defendant’s former attorney became head of State’s Attorney’s office, special prosecutor should be appointed to prosecute defendant.
• People v. Morley, 287 Ill.App.3d 499, 678 N.E.2d 1235 (1997). Special prosecutor not required where victim worked in prosecutor’s office.
• People v. White, 209 Ill.App.3d 844, 567 N.E.2d 1368, 1386 (1991). Rule prohibiting communication with represented defendant applies to investigators and informants if act as alter ego of prosecutor. “Government investigators and informants act as the alter ego of the prosecutor when they act at the behest of and with specific instructions from that prosecutor to elicit incriminating statements from the defendant. Merely instructing an informant to induce the defendant to talk is not sufficient to constitute the informant the alter ego of the prosecutor. However, where the prosecutor instructs the informant how to elicit incriminating statements by telling him what to say or ask, the informant may be considered the alter ego of the prosecutor. …When not acting as the alter ego of the prosecutor, government investigators may engage in legitimate investigative techniques, including the use of an informant to eavesdrop upon and tape-record a conversation with the defendant.”
• People v. Spreitzer, 123 Ill. 2d 1, 525 N.E.2d 30 (Ill. 1988). Fact that assistant public defender was formerly employed as assistant state’s attorney when decision was made to charge defendant was not conflict of interest so as to prohibit appointment of different assistant public defender to defendant’s case.
• People ex rel. York v. Downen, 119 Ill.App.3d 29, 456 N.E.2d 286 (1983). Evidence that state’s attorney talked about absentee ballots with county clerk only showed fulfillment of duty to provide legal advice to county officials, and did not establish conflict of interest when state’s attorney convened grand jury to investigate alleged general election irregularities that possibly involved county clerk.
• People v. Hall, 58 Ill. App. 3d 487, 374 N.E.2d 822 (1978). Improper to appoint former state’s attorney, who had filed pretrial motion on behalf of State in defendant’s case, as defendant’s attorney.
• People v. Rymer, 32 Ill. App. 3d 431, 336 N.E.2d 203 (1975). Prosecutor could not participate in case where defendant visited attorney, who was part-time prosecutor, and discussed criminal case.

INDIANA

Ethics Advisory Opinions

• IN (1963-11, 1964-01) Prosecuting attorney cannot represent private party in divorce case if state imposes statutory obligations upon prosecuting attorney in such cases.
• IN (1963-12, 1964-02) Deputy prosecuting attorney who prosecutes in City Court cannot appear as defense counsel in criminal cases in Circuit Court.
• IN (1965-5, 6) Prosecutor and defense attorney must refrain from public statements which tend to arouse public opinion about merits of pending litigation; unethical to make personal attacks against opposing counsel or judge.
• IN (1972-02, 1973-03) Prosecutor cannot represent criminal defendant accused of crime in any matter which involves same transaction or occurrence.
• IN (1977-01) Part time deputy prosecutor cannot represent criminal defendants in private practice.
• IN (1979-05) Conflict exists where plaintiff’s counsel if prosecutor and is suing city in which he prosecutes in civil action or action involving police officer.
• IN (1979-06) Conflict exists where prosecutor represents plaintiffs in civil action against defendant who is being prosecuted in criminal action arising out of same set of facts.
• IN (1980-06) Attorney must comply with Disciplinary Rules before making statements to media.
• IN (1981-03) No conflict of interest when prosecuting attorney’s office represents petitioner in matter under Title IV-D of Social Security Act, who is also being criminally prosecuted by same office.
• IN (1981-07) Violation where part time prosecuting attorney representing civil client in matter involving collection of support.
• IN (1981-08) No violation where part time prosecuting attorney represents county welfare department in private practice.
• IN (1982-02) No ethical violations when prosecutor and criminal defense attorney engage in non-legal business relationships.
• IN (1983-02) District Attorney whose spouse is judge is not disqualified as long as they don’t take cases in spouse’s court.
• IN (1985-05) Conflict of interest exists when firm which has among its members deputy prosecuting attorney accepts representation of juvenile and parents against corporate defendant in civil cause of action arising out of set of circumstances which could result in criminal charges being brought against corporate defendant by office of prosecuting attorney.
• IN (1988-1) Partner in firm may not take position with County Prosecutor’s Office where father and partner is also part time judge of court in same county.

Attorney Disciplinary Opinions

• In re Anonymous, 819 N.E.2d 376 (Ind. 2004).  Defense attorney privately reprimanded for obtaining co-defendant’s signature on affidavit supporting severance motion without going through co-defendant’s attorney.
• In re Miller, 677 N.E.2d 505 (Ind. 1997).  Prosecutor publicly reprimanded for unlawfully using prosecutorial authority to assist private litigant to collect civil judgment and failing to comply with discovery orders.

Appellate Decisions

• Page v. State, 689 N.E.2d 707 (Ind. 1997). Special prosecutor not required where defendant’s attorney ended representation after six weeks and joined prosecuting attorney’s office, since prior attorney did not discuss defendant’s case with prosecutor.
• Reynolds v. State, 625 N.E.2d 1319 (Ind. App. 1993). Filing of additional charges after corroborating information is gained does not establish vindictiveness.
• Kindred v. State, 521 N.E.2d 320 (Ind. 1988). Defendant not entitled to appointment of special prosecutor when defendant filed civil action against prosecutor one day before criminal charges were filed.
• Vaxter v. State, 508 N.E.2d 809 (Ind. 1987). Where additional charges are filed prior to trial, there is no presumption of vindictiveness.
• Sears v. State, 457 N.E.2d 192 (Ind. 1983). Special prosecutor properly appointed for habitual offender phase of proceeding against defendant, where prosecutor had represented defendant in one or more cases which were listed in habitual offender charge.
• State v. Tippecanoe County Court, 432 N.E.2d 1377 (Ind. 1982). Prosecutor disqualified where habitual offender charge was based upon prior cases in which prosecutor represented defendant.
• Cherry v. State, 414 N.E.2d 301 (Ind. 1981). Appearance of prosecutorial vindictiveness when prosecutor files more numerous and more severe charges against defendant after successful exercise of right to appeal.
• State ex rel. Goldsmith v. Superior Court of Hancock County, 386 N.E.2d 942 (Ind. 1979). Entire prosecutor’s office not disqualified when assistant prosecutor or other staff member becomes witness in case prosecuted by office; however, if elected prosecutor is witness, entire staff must be disqualified to maintain integrity of process of criminal justice. Court held that when assistant prosecutor moves for disqualification and appointment of special prosecutor, Court must disqualify entire office and appoint special prosecutor. In its analysis under the Disciplinary Rules, the Court distinguished between relationship between prosecuting attorney and his sole client, the citizens of circuit in which he serves, and lawyer and ordinary attorney-client relationship.
• State ex rel. Latham v. Spencer Circuit Court, 194 N.E.2d 606 (Ind. 1963). Special prosecutor should be appointed when regular prosecuting attorney has hostility and antagonism against defendant due to prior matters involving defendant.

IOWA

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Tofflemire, 689 N.W.2d 83 (Iowa 2004).  Attorney disciplined for working part-time as public defender while working full-time state job and using sick leave from full-time job to make court appearances for public defender.  Also submitted false expense reports to public defender.
• Committee of Professional Ethics and Conduct of Iowa State Bar Assn. v. Ramey, 512 N.W.2d 569 (Iowa 1994).  Experienced prosecutor, when confronted with chain of custody problem, falsely stated that he had personally examined money in evidence and that serial numbers matched up (they did not) thereby violating ethical rule prohibiting conduct involving misrepresentation.  In separate case, prosecutor failed to disclose impeachment material in violation of ethical duty to disclose. Ramey’s license was indefinitely suspended.
• Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Mollman, 488 N.W.2d 168 (Iowa 1992).  Attorney received 30-day suspension for misconduct in wearing concealed microphone to record conversation with friend and former client and using fraud and deceit for purpose of luring friend into trap set by federal law enforcement officials in order to secure leniency in attorney's own prosecution for drug possession.

Appellate Decisions

• Wells Dairy, Inc. v. American Indus. Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004). Overarching inquiry in determining whether document was prepared in anticipation of litigation is whether, in light of nature of document and factual situation in case, document can fairly be said to have been prepared or obtained because of prospect of litigation.
• Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Michelson, 345 N.W.2d 112 (Iowa 1984).  No presumption of vindictiveness from prosecutor’s increase of charges after defendant’s refusal to plead guilty.
• Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Michelson, 345 N.W.2d 112 (Iowa 1984).  There is no presumption of vindictiveness by increasing charges after refusal to plead guilty.

KANSAS

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• In re Jordan, 278 Kan, 254, 91 P.3d 1168 (2004).  Prosecutor’s false statement to court regarding her participation in securing warrant for arrest of defense witness resulted in public censure.  Same prosecutor failed to disclose evidence of victim’s cocaine usage while arguing that defendant secretly caused her to ingest cocaine at time of commission of crime.
• Matter of Sutton, 265 Kan. 251, 959 P.2d 904 (1998).  Assistant county attorney issued public censure for (1) committing traffic violations and getting into a verbal and physical confrontation with highway worker which led to tort suit against him, and (2) failure to reimburse county for seminar expenses it had paid when he requested and received funds for same expenses from National Association of Prosecutor Coordinators.
• Matter of Carpenter, 248 Kan. 619, 808 P.2d 1341 (1991).  Assistant District Attorney publicly censured for stating in her opening statement that victim of sexual assault had contracted gonorrhea from defendant and asking questions to establish that fact in direct examination of three witnesses and cross examination of defendant when District Attorney’s Office had credible evidence to establish that victim was not so infected.
• Matter of Price, 238 Kan. 426, 709 P.2d 986 (1985).  County Attorney suspended for repeated failure to abide by discovery orders issued by court and repeated misrepresentations to judge and defense counsel in one case and wearing of World War II German officer's uniform with Nazi insignia while in court prosecuting another case.  In second matter, Respondent failed to represent State’s interest as appellee in appeal from conviction of forgery due to his failure to file brief and, on day before oral argument was scheduled in Court of Appeals, calling defense counsel and offering to confess error, resulting in reversal and order for new trial.

Appellate Decisions

• In re Jordan, 278 Kan. 254, 91 P.3d 1168 (2004).  In one case, prosecutor made false statements to court regarding her knowledge of investigation of or arrest warrant for defense witness in midst of trial; trial resulted in mistrial and charges later dismissed.  In second case, same prosecutor failed to disclose evidence of victims’ cocaine usage while arguing that defendant secretly caused her to ingest cocaine at time of commission of crime and asked questions had been instructed not to ask witness; second trial ended in mistrial and charges later dismissed.  Court found that prosecutor had made misrepresentation of fact in violation of Rule 3.3, and had failed to disclose material that should have been disclosed under Rules 3.4 and 3.8, with both acts constituting conduct prejudicial to administration of justice under Rule 8.4.  Public censure issued.
• State v. Hazley, 28 Kan. App. 2d 664, 19 P.3d 800 (2001). Citing to rules of professional conduct and ABA standards, Court found reversible error in prosecutor’s closing argument that included comments that people lie when convenient, references to sole defense witness’ post-Miranda silence, and misstatement of defense counsel's argument.
• State v. Pabst, 268 Kan. 501, 510-511, 996 P.2d 321 (2000). Prosecutor is servant of the law and representative of people of Kansas. Prosecutor has special obligation to avoid improper personal insinuations during closing argument.
• State v. Pabst, 268 Kan. 501, 510-511, 996 P.2d 321 (2000). Kansas Rules of Professional Conduct and American Bar Association Standards of Criminal Justice clearly state improper for lawyer to comment on witness' credibility, and is responsibility of both prosecutor and trial judge to ensure that closing argument is kept within proper bounds. “A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor's failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.... The State's characterization of the prosecutor's statement that a defendant is lying, as a comment on the evidence, misses the mark. The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. ... Here [the prosecutor] introduced into the case his personal opinion of [the defendant's] credibility. He ignored his special obligation as a prosecutor to avoid improper personal insinuations. Because he represented the State of Kansas the jury might have been misled into thinking his personal opinions were validated by the weight of the State of Kansas. Such prosecutorial vouching places the prestige of the State behind the prosecutor's personal assurances."

KENTUCKY

Ethics Advisory Opinions

• KY (1967- E 31) City prosecutor charged with prosecution of criminal offenses may not represent defendants in criminal cases.
• KY (1971-E 52) Attorney, during or after conclusion of litigation, may not voluntarily submit information relating to litigation concerning attorneys involved, legal position taken by attorneys in case, issues of case and results to news media.
• KY (1973-E 68) Attorney may be present to render legal advice to his client at press conference called by client.
• KY (1974-E 66) County Attorney may legally engage in practice of Workmen’s Compensation and related cases.
• KY (1974-E 100) County attorney may not prepare and publish in own newspaper periodic reports of actions taken by him as county attorney.
• KY (1975-E 113) Unethical for Assistant County Attorney, who is prosecutor, to be appointed Deputy Sheriff in order to make arrest rather than taking out warrants.
• KY (1975-E 115) County Attorney may conduct both county business and private practice out of same office located in county courthouse.
• KY (1975-E 124) Commonwealth’s attorney may not prosecute defendant on retrial of criminal charge, when defendant’s lawyer at first trial has joined office of Commonwealth Attorney.
• KY (1975-E 128) County attorney may not share office with judge of police court.
• KY (1976- E 153) Prosecuting attorney who has represented party in divorce action may not subsequently participate in prosecution of adverse party under KRS 530.050 for non-support of children of marriage.
• KY (1976-E 157) Assistant Commonwealth’s Attorney may in some circumstances after he has left office accept fee from victim’s family to continue prosecution.
• KY (1977-E 160) Assistant county attorney may not defend criminal cases in courts of county in which he is appointed to serve. Attorney’s partners may not defend criminal cases either.
• KY (1977-E 214) Prosecutor may not serve as prosecutor and trial commissioner simultaneously.
• KY (1979-E 215) Part-time assistant county attorney may not represent defendant in civil action to collect delinquent support payments.
• KY (1979-E 220) Prosecutor may not secure written affidavits from jurors in criminal case regarding their feelings as to accused’s penalty with specific intent to use information at sentencing phase of case.
• KY (1982-E 257) Attorney for Commonwealth may, in some circumstances, prosecute criminal action against defendant that was party to civil action in which Attorney for Commonwealth represented one party at time criminal complaint was filed.  
• KY (1984-E 279) Attorney may not secretly record conversations with client, attorney, judge, and public, including public officials, where said persons are not witnesses in criminal proceeding in which attorney is employed as defense counsel.
• KY (1984-E 294) Proper for Commonwealth Attorney to represent party in contested custody matter where no criminal warrants have been issued.
• KY (1985-291) Assistant county attorney, partner or associate may not represent person in civil matter who is simultaneously being prosecuted in same county for an unrelated criminal offense.
• KY (1987-E 322) Attorney who represents criminal defendants may not share office with full or part time prosecutor.
• KY (1992- E 350) Prosecutor, partners and associates should not try defendants with whom prosecutor is embroiled in civil litigation.
• KY (1995-E 386) Spouse of prosecutor may practice criminal law in same jurisdiction as spouse-prosecutor as long as spouses do not appear in same cases and client consents after consultation.
• KY (2000-E412) Partner of prosecutor may not represent criminal defendants in same county in which prosecutor acts as prosecutor.
• KY (2000-E 415) Part-time prosecutor may not represent respondent in matter involving civil domestic violence order.

Attorney Disciplinary Opinions

• Kentucky Bar Ass'n v. Marcum, 830 S.W.2d 389 (Ky. 1992).  Prosecutors publicly reprimanded for accepting private employment in matters they had involvement in as public employees.
• Kentucky Bar Ass'n v. Lovelace, 778 S.W.2d 651, 653-654 (Ky. 1989).  Attorney suspended for accepting private employment in matter in which had responsibility to prosecute and attempting to use promise of probation in criminal case as leverage to obtain personal contribution from defendant in civil case.  Court also took opportunity to address propriety of prosecutor’s engagement in private practice.  “By statute, county attorneys and a majority of Commonwealth Attorneys are entitled to maintain a private civil practice.  While some may believe such is unwise or contrary to the best interest of the Commonwealth, nothing in our law or Code of Professional Responsibility prohibits such practice.  It is obvious, however, that this creates a great potential for conflict of interest as many criminal acts are subject also to redress in civil actions.  This is particularly true in rural areas which are served by a small number of lawyers engaged in the practice of law and in which the public prosecutor is often one of the more prominent local practitioners.  When an attorney declares his intention to seek elective office as a Commonwealth Attorney or a county attorney, it should be with the certain knowledge that his civil practice will be severely restricted upon assuming the office and that the public office he holds will take precedence over his private practice.  A prosecutor must decline employment in any civil action when there is any reasonable probability that a criminal prosecution might arise from the circumstances of the case.  If, after accepting employment in a civil matter, a criminal prosecution arises from the circumstances of the case the prosecuting attorney must withdraw from the civil proceeding and disqualify himself from handling the prosecution.  While the views expressed above do not represent a change in the law, we note that in the past such rules have frequently been observed with a great degree of flexibility. In the future, however, violations of the rules reiterated herein will not be tolerated.”
• In re Kenton County Bar Assn., 314 Ky. 664, 236 S.W.2d 906 (1951).  It is improper for partner of assistant prosecutor to defend criminal case in same judicial circuit.

Appellate Decisions

• Miller v. Com., No. 2002-SC-0527-MR, 2005 WL 119745 (Ky. 2005). While improper, prosecutor’s reference to defendant as “cancer in community” did not prevent defendant from receiving fair trial.
• Hillard v. Com., No. 2002-SC-0702-MR, 2005 WL 384778 (Ky. 2005). Prosecutor’s use of subpoenas to obtain ex parte interviews of witnesses prior to trial was improper but did not require dismissal of indictment or retrial; Court noted that appropriate cure for such misconduct is to prohibit prosecutor from using any information obtained solely from improper interview. Court noted that perjury warnings are not per se improper, but improper only when prosecutor's perjury warning interfered substantially with witness's free and unhampered choice to testify.
• Thomas v. Com., Not Reported in S.W.3d, 2004 WL 2913237 (Ky. 2004), rehearing granted (March 17, 2005). Though unprofessional, prosecutor’s actions of laughing and making facial gestures during direct examination of defendant did not deny defendant fair trial.
• Thompson v. Com., 147 S.W.3d 22 (Ky. 2004). Defendant asserted that, during penalty phase closing argument, Prosecutor made statements implying he was acting on behalf of victim rather than Commonwealth of Kentucky. While finding prosecutor’s comments to be “perhaps approaching the line of impropriety,” Court held fell within latitude afforded counsel in closing arguments. Other comments made by prosecutor, including use of terms “mean,” “evil,” and “vile,” not constitute prosecutorial misconduct.
• Solomon v. Com., No. 2001-CA-001260-MR, 2004 WL 1416467 (Ky. App. 2004). Prosecutor’s statements during closing argument in which threatened not to prosecute similar cases if jury did not return guilty verdict were improper, but did not prevent defendant from receiving fair trial.
• Solomon v. Com., No. 2001-CA-001260-MR, 2004 WL 1416467 (Ky. App. 2004). Even though prosecutor misrepresented facts in closing argument, defendant was not prevented from receiving fair trial.
• Soto v. Com., 139 S.W.3d 827 (Ky. 2004). During penalty phase closing argument, it was not improper for prosecutor to thank jury on behalf of victims’ family, state, police, and community. Various other instances of alleged misconduct in closing of penalty phase were not misconduct.
• Blair v. Com., 144 S.W.3d 801 (Ky. 2004). New trial granted where prosecutor used closing argument to inappropriately inject extra-judicial facts into record.
• Simpson v. Com., No. 2002-CA-000119-MR, 2004 WL 360980 (Ky. App. 2004). Prosecutor’s statements during closing argument that defendant presented no alibi witnesses, that nobody refuted testimony of prosecution witnesses who identified defendant as guilty party, and that only evidence offered in case supported prosecution’s case not deprive defendant of fair trial because all statements allowed under state law.
• Rudolph v. Com., No. 2003-SC-0050-MR, 2004 WL 536025 (Ky. 2004). Prosecutor’s comments referencing defendant’s failure to introduce certain evidence was fair comment on evidence and did not impermissibly shift burden.
• Caldwell v. Com., 133 S.W.3d 445 (Ky. 2004). Prosecutor’s comment that defendant had long time to come up with story to explain evidence not improperly comment on defendant’s right to remain silent.
• Ragland v. Com., No. 2002-SC-0388-MR, 2003-SC-0084-TG, 2004 WL 2623926 (Ky. S. Ct. 2004). New trial ordered after prosecutor improperly commented on defendant’s failure to testify in violation of defendant’s Fifth Amendment rights.
• Meade v. Com., No. 2003-CA-001870-MR, 2004 WL 3016296 (Ky. App. 2004). No prosecutorial misconduct was found when prosecutor used closing arguments to strongly hint defendant was lying, since comments were consistent with evidence offered by prosecution.
• Hall v. Com., No. 2001-SC-0814-MR, 2003 WL 21254856 (Ky. 2003). Prosecutor’s statement during voir dire that he was “responsible for representing crime victims,” specifically naming defendant’s ex-wife and son, found by Court to not necessarily mean that prosecutor has abdicated responsibility to represent all constituents within Commonwealth, including defendant. And, because Court held that statement alone could not be considered so inflammatory as to cause jury to base decision on guilt or innocence or punishment just on who is victim.
• Miller v. Com., No. 2001-SC-1010-MR, 2003 WL 22415623 (Ky. 2003). Prosecutor’s remarks that defendant was “cutting his losses” by asking jury to only find manslaughter was permissible, since it only amounted to prosecution commentary on defense strategy.
• Edmondson v. Com., No. 2001-SC-0253-MR, 2002 WL 32065611 (Ky. 2002). Error for prosecutor, during cross-examination of defendant, to inject extra-judicial scientific evidence into record with no intention of later proving it, but error not require reversal.
• Barnes v. Com., 91 S.W.3d 564 (Ky. 2002). Prosecutor stated during closing argument that acquitting defendant would be crime worse than murder. New trial granted on appeal because only purpose of statement was to inflame jury. Appellate court also cited to numerous other instances of prosecutorial misconduct arising from prosecutor’s behavior in trial.
• Edmondson v. Com., No. 2001-SC-0253-MR, 2002 WL 32065611 (Ky. 2002). Prosecutor’s reference to refusal of defense witness to take polygraph during closing argument constituted reversible error, particularly since trial judge had previously excluded any evidence of failure to take polygraph.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Prosecutor’s penalty phase comment about time and trouble defendant’s failure to plead guilty had caused held to be improper.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Although prosecutor’s incorrect quotation of defendant from tape played for jury was error, harmless because jury could have reviewed tape for itself.
• Perdue v. Com., 916 S.W.2d 148 (Ky. 1995). Prosecutorial misconduct for prosecutor, during penalty phase, to ask when defendant got into murder for hire business and make other references to murder for hire when such not supported by any evidence and served only to inflame and prejudice jury; reversal required for this and other errors.
• Cash v. Com., 892 S.W.2d 292, 294 (Ky. 1995). Learning that potential witnesses had lied to grand jury, prosecutor told both witnesses that would not prosecute for perjury if they testified truthfully at trial. Prosecutor kept promise regarding one witness; refused to call other witness and, in fact, threatened to prosecute for perjury if witness testified for defense. Court held prosecutor’s failure to adhere to promise made to witness constituted level of prosecutorial misconduct that "breeds contempt for integrity and good faith" and "destroys the confidence of citizens in the operation of their government and invites them to disregard their obligations."
• Jacobs v. Com., 870 S.W.2d 412 (Ky. 1994). Improper for prosecutor to ask defense’s qualified expert witness in psychiatry if had worked as professional belly dancer because only served to undermine her credibility and was totally irrelevant.
• Mack v. Com., 860 S.W.2d 275 (Ky. 1993). Prosecutor’s comments during closing argument that intimated there was overwhelming amount of evidence that was kept out because of legal formalities were improper and warranted granting of new trial on appeal.
• Clay v. Com., 867 S.W.2d 200 (Ky. App. 1993). Prosecutor’s question to defendant as to why not make statement was impermissible comment on defendant’s right to remain silent.
• Dean v. Com., 844 S.W.2d 417 (Ky. 1992). Given totality of circumstances and overwhelming amount of evidence against defendants, it was not improper for prosecutor to refer to defendants as “crazed animals,” nor for prosecutor to state that State had done its job, and that it was time for jury to do theirs.
• Morris v. Com., 766 S.W.2d 58 (Ky. 1989). New trial granted because of prosecutor improper emphasis of heroic and leadership qualities of victim and victim’s family.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• Wager v. Com., 751 S.W.2d 28 (Ky. 1988). New trial granted in part due to improper demonstration conducted by prosecutor during closing argument.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). Prosecutor engaged in pattern of conduct ridiculing and intimidating defense counsel (made demeaning or derogatory remarks) that Court held to be “grossly improper.” New trial required because of these remarks and other improper acts of prosecutor, including prosecutor’s destruction of recordings of witness’ statements; references in closing argument to defendant as "black dog of a night," “monster," "coyote that roamed the road at night hunting women to use this knife on," and "wolf;" and misstating law concerning jury’s duty during closing argument.
• Ice v. Com., 667 S.W.2d 671 (Ky. 1984). New trial granted for number of reasons including following improper statements during closing arguments: prosecutor’s continuous misstatement of defense witness’s testimony; comment about possibility of appeal; comment that jury merely recommends death penalty, not impose it; and suggestion that, if not convicted, defendant would kill again.
• Ice v. Com., 667 S.W.2d 671 (Ky. 1984). Prosecutor was accused of prosecutorial misconduct on numerous grounds, many of which Court found to be justified. In fact, Court stated that prosecutor’s direct and cross-examination of witnesses “reads like a bad television scenario.” One example given was prosecutor’s cross-examination of defense psychiatrist during which prosecutor repeatedly and consistently misstated doctor's testimony. Prosecutor also improperly, during closing argument, commented on consequences of particular verdict. Case reversed due to these and other errors.
• Summitt v. Mudd, 679 S.W.2d 225 (Ky. 1984). Mere possibility of appearance of impropriety is not sufficient to disqualify entire staff of prosecutor’s office from further prosecution of case.
• In re Kenton County Bar Assn., 236 S.W.2d 906 (Ky. 1951). Partner of assistant prosecutor cannot defend criminal case in same judicial circuit.

LOUISIANA

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• In re Jordan, Opinion No. 2004-B-2397 (La. S. Ct. June 29, 2005).  Eyewitness to murder gave three statements to police – on night of murder, “visibly shaken” witness said not get good look and probably could not identify perpetrators; three days after murder, witness described clothing, height and hair of the shooter after saying not have contacts in or glasses on and not sure if imagining some of shooter’s appearance; and three weeks after the murder, witness identified someone from photographic lineup.  During trial preparation, prosecutor interviewed eyewitness, who told him she was nearsighted and only needed glasses or contacts for nighttime driving and not to see at close distances.  Prosecutor decided not need to tell defense either that eyewitness not wearing glasses or contacts on night of crime or about second statement given to police three days after murder because not exculpatory.   Supreme Court found prosecutor violated Rule 3.8(d) by failing to disclose second statement to defense.  Prosecutor suspended from practice of law for three months, but suspension was deferred. 
• In re Toups, 773 So. 2d 709 (La. 2000). Prosecutor disciplined for not withdrawing from representation of woman in divorce case when she filed criminal charges against her husband.  Prosecutor’s conduct also included failure to report misconduct of another ADA who attempted to have husband’s case continued indefinitely while representing both husband and State.

Appellate Decisions

• State v. Ennis, 877 So. 2d 300 (La. App. 2004). Prosecutor’s office not disqualified on basis of separate forfeiture proceeding arising from criminal case.
• State v. Cooper, 774 So. 2d 1040 (La. App. 2000). Fact that elected prosecutor was related to crime victim not enough to require recusal of entire prosecutor’s office where defendant not produce any evidence tending to show personal interest on behalf of entire prosecutor's office, which would threaten fair and impartial administration of justice.
• State v. Guidroz, 721 So. 2d 480 (La. App. 1998). Prosecutor in aggravated incest prosecution did not have to recuse himself on ground of personal interest where he knew victim’s grandparents.
• State v. Adkins, 702 So. 2d 1115 (La. App. 1997). Prosecutor disqualified from representing crime victim’s relative seeking recusal of Attorney General in criminal matter since prosecutor’s first and principal client is State.
• State v. Gatch, 669 So. 2d 676 (La. App. 1996). Prosecutor should be recused when he has personal interest in grand jury proceeding.
• State v. Stewart, 656 So. 2d 677, 680-681 (La. App. 1995). “Defendant has the burden of proving, by a preponderance of the evidence, the affirmative defense of prosecutorial vindictiveness. In that regard, the court will examine the state's actions in the context of the entire proceedings. The events in the case will create a presumption of vindictiveness if, to a reasonable mind, the filing of the habitual offender bill can be explained only by a desire to deter or punish the exercise of legal rights. But where the government's conduct is equally attributable to legitimate reasons, a defendant must prove actual vindictiveness for a presumption will not apply. A mere opportunity for vindictiveness does not suffice…. More importantly, a district attorney has great discretionary power to file an habitual offender bill under [state law], just as he has the initial unlimited power to prosecute "whom, when, and how" he chooses.” (citations omitted.)
• State v. Bourque, 622 So.2d 198 (La. 1993). Defendant not entitled to recusal of prosecutor’s office because investigator in office was brother-in-law of one victim and uncle of other victim.
• State v. Probst, 623 So. 2d 79 (La. App. 1993). Prosecutor’s statements to jury venire two days prior to defendant’s trial that they were dismissed for day and needed to return two days later to determine guilt of defendant :violated applicable ethical guidelines, and [the Court did] not approve of [prosecutor’s] conduct. Court concluded that jury not tainted so new trial motion properly denied.
• State v. Washington, 626 So. 2d 841 (La. App. 1993). Before defendant or defense counsel were in the courtroom, clerk of court and elected prosecutor spoke to jury; comments included clerk’s comments that often defendants feel pressure when juries are summoned and they plead guilty so jury gets to go home and prosecutor’s comments related to importance of jury service. Citing to Rule 3.5(b) of Louisiana Rules of Professional Conduct, Court held that was unprofessional conduct for prosecutor to make any ex parte remarks in presence of jury.
• State v. Bender, 598 So.2d 629 (La. App. 1992). Prosecutor not disqualified based on personal friendship with victim, who was deputy sheriff, where contacts with victim were generally professional.
• State v. Allen, 539 So.2d 1232 (La. 1989). Where prosecutor previously represented defendant in bankruptcy proceeding, prosecutor disqualified from involvement in prosecution of defendant for arson, where alleged motive was financial distress.
• Parkerson v. Norris, 529 So.2d 1392 (La. App. 1988). Prosecutor recused from grand jury investigation where was victim of alleged criminal activity subject to investigation by that grand jury.
• State v. Bates, 508 So.2d 1346 (La. 1987). Improper for prosecutor to contact potential jurors by letter and questionnaire prior to trial.
• State v. Edwards, 420 So.2d 663 (La. 1982). Where assistant prosecutor had previously represented defendant, other prosecutors in office could prosecute defendant provided had no personal interest in case.
• State v. Thomason, 353 So.2d 235 (La. 1977). Prosecutor, who served as statutory counsel for school board and was consulted regarding matters concerning defendant’s continued employment with school board but not related to present criminal prosecution of defendant for theft of school property, did not have personal interest in trial requiring disqualification.
• State v. Bell, 346 So.2d 1090 (La. 1977). Mere fact that assistant district attorney once represented defendant not require disqualification of entire office where assistant was not called upon to use confidential knowledge gained through prior representation.
• State v. Snyder, 237 So.2d 392 (La. 1970). Personal animosity prosecutor harbored toward realtor during prior mayoral campaign, prosecutor should not participate in perjury case against realtor.

MAINE

Ethics Advisory Opinions

• ME (1979-06) Entire District Attorney’s office should be recused when either District Attorney or any of his assistants is likely to be called as witness.
• ME (1980-07) Conflict exists where District Attorney serves as counsel for defendants, County Sheriff and County Commissioner, in civil action brought by prisoner in County Jail.
• ME (1983-39) When one member of firm has been offered position as district attorney and accepted, other members of firm can no longer represent criminal defendants in that district.
• ME (1983-36) District Attorney forbidden from prosecuting case against person who is represented by lawyer whose partner is spouse of District Attorney.
• ME (1984-49) Improper for district attorney to represent town or taxpayer in abatement before county commissioners.
• ME (1985-65) Attorney with in-law relationship with district attorney may represent defendants whether or not in-law is involved in case, provided disclosure requirements are met.
• ME (1986-70) Criminal defense counsel whose spouse is member of District Attorney’s Office can defend matters handled by District Attorney’s Office, with proper disclosure and consent by client.

Attorney Disciplinary Opinions

Appellate Decisions

• State v. Eaton, 462 A.2d 502 (Maine 1983). Greater charges may be dismissed if it appears these charges were filed to harass defendant. Court always has power to dismiss indictment duplicating Class C or higher complaint previously dismissed by Court, if clearly appears that “whole course of action” by prosecution amounts to harassment of defendant. “Carefully considered” exercise of that power by Court can afford appropriate protection against prosecutorial abuse, without creating hard-and-fast rule automatically barring or limiting later prosecution.

MARYLAND

Ethics Advisory Opinions

Attorney Disciplinary Opinions

• Attorney Grievance Committee of Maryland v. Gansler, 377 Md. 656, 835 A.2d 548 (2003). Prosecutor publicly reprimanded for statements to news media about, inter alia, defendant’s confession and decision to offer plea bargain to defendant after reversal of conviction.  Court held that, in future, phrase "information in a public record" as used in Rule 3.6(c)(2) would cover only public government records, i.e., records and papers on file with government entity to which ordinary citizen would have lawful access.  Court reviewed role of prosecutor.

  Prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both advocate and minister of justice.  The special duty of the prosecutor to seek justice is said to exist because the State's Attorney has broad discretion in determining whether to initiate criminal proceedings.  The office of prosecutor is therefore "not purely ministerial, but involves the exercise of learning and discretion," and he or she "must exercise a sound discretion to distinguish between the guilty and the innocent."  The responsibilities of the prosecutor encompass more than advocacy.  The prosecutor's duty is not merely to convict, but to seek justice.  "His obligation is to protect not only the public interest but the innocent as well and to safeguard the rights guaranteed to all persons, including those who may be guilty."

  (citations omitted).  Id., 835 A.2d at 571-572.

Appellate Decisions

• Newman v. State, 384 Md. 285, 863 A.2d 321 (2004). Criminal defendant could invoke attorney-client privilege in criminal case, even though her attorney in domestic action had disclosed under Rule 1.6 defendant’s plot to kill her husband to judge in domestic case.
• Gatewood v. State, 158 Md. App. 458, 857 A.2d 590 (2004). Prosecutor not disqualified even though he had represented defendant twice while employed as assistant public defender, since prior representation did not involve matters substantially related to present charge.
• Lynkins v. State, 288 Md. 71, 415 A.2d 1113 (1980). Prosecutor who had previously prepared separation agreement for defendant should not participate in prosecution of defendant.
• Sinclair v. State, 278 Md. 243, 363 A.2d 468 (1976). If prosecutor has knowledge of pertinent facts or has any pecuniary interest in civil matter which might impair his obligation in criminal matter, he is disqualified from participating in criminal matter.

MASSACHUSETTS

Ethics Advisory Opinions

• MA (1976-26) Attorney associated with son in practice should not handle any criminal cases being prosecuted by district attorney's office in which his son serves as assistant district attorney.
• MA (1978-01) Town prosecutor, nor any member of firm, may represent criminal defendant in trial or appeal of case in which town has an interest or case in which he, or any police or other officer of town is involved.
• MA (1979-04) No violation if member of District Attorney’s Office prosecutes former client of fellow district attorney, as long as client confidentiality is maintained.
• MA (1980-01) Law student may represent indigent defendant against prosecution by Commonwealth in one county while simultaneously prosecuting criminal case on behalf of Commonwealth in another county.
• MA (1981-08) No per se bar to representation of criminal defendants by firm that employs attorney whose spouse is assistant district attorney even in cases in which firm and assistant district attorney are opposing counsel of record.
• MA (1991-02) Law firms may handle cases for district attorney's office while simultaneously handling criminal defense work in same county so long as certain safeguards are observed.
• MA (1995-3) Close family member of district attorney isn’t automatically disqualified from defending criminal cases within district attorney's county. Consent of defendant will be effective to avoid disqualification.

Attorney Disciplinary Opinions

• In re Discipline of Attorney, 442 Mass. 660, 815 N.E.2d 1072 (2004).  Attorney did not commit ethical violation by delivering copy of state trooper’s deposition testimony to trooper’s supervisor during personal meeting in which attorney expressed his opinion that trooper was incompetent to investigate fires and explosions.
• In re Discipline of Attorney, 422 Mass. 660, 815 N.E.2d 1072 (2004).  Attorney disciplined for giving advice to unrepresented victim of domestic violence case while representing perpetrator of violence.  Even though both parties wanted matter dismissed, court found attorney’s conduct to be unethical.
• In re Foley, 439 Mass. 324, 787 N.E.2d 561 (2003).  Defense attorney suspended for fabricating false testimony for his client in prosecution for DUI and possession of firearm.  Defense counsel and client met on several occasions and made up story to explain gun in car and bullets in defendant’s pocket.  Defense counsel relayed concocted story to prosecutor.

Appellate Decisions

• Commonwealth v. Croken, 59 Mass. App. Ct. 921, 797 N.E.2d 403 (2003). Assistant prosecutor’s undisclosed relationship with defendant’s attorney did not disqualify prosecutor in defendant’s case.
• Commonwealth v. McGowan, 400 Mass. 385, 510 N.E.2d 239 (1