The newsletter of the ISBA’s Standing Committee on Government Lawyers
In re Schaaf, No. M.R. 17387 (March 23, 2001). Respondent, who was licensed to practice law in Illinois in 1994, began working as a part-time assistant state's attorney in Jersey County, while he was also engaged in private practice; he was hired as a full-time assistant state's attorney in April 1999.
In April, 1999, in an attempt to close his private practice, Respondent mailed a letter to a former client regarding her outstanding bill. The letter was captioned "FINAL NOTICE!!" and stated:
As stated per our last conversation, there has been no action taken to pay the remaining balance on your account and my patience has been depleted. I have filed a Theft of Services Criminal Complaint. This is a class four (4) felony subject to 1-3 years in the Department of Correction [sic], a $25,000 [sic] plus costs and restitution. In addition to signing the complaint, I will be prosecuting it on behalf of the State.
As a final gesture for you to resolve this matter without having to face jail, fines and a conviction, I advised the Jersey County Sheriff to hold the warrant until May 5, 1999. If the balance due on your account is paid in full prior to May 5, 1999, I will inform the Sheriff not to enter the warrant. If payment in full is not received by 12:00 noon on May 5, 1999, the warrant will be entered and it will take a $500 bond to bail you out of whichever jail you are placed [in] after arrest.
Do Not Ignore This Notice!
Schaaf stipulated at his disciplinary hearing that at the time he mailed the letter, no formal criminal charges had been filed against his client, no warrant of arrest had been issued, and he had not spoken with the Jersey County Sheriff about holding the warrant for arrest.
Following formal disciplinary proceedings against Schaaf, in which he was found to have threatened to present criminal charges in order to obtain an advantage in a civil matter, in violation of Rule 1.2(e) of the Rules of Professional Conduct, and engaged in conduct involving fraud, dishonesty, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Rules of Professional Conduct, the Illinois Supreme Court ordered him suspended from the practice of law for 12 months, with the suspension stayed after the first 5 months by a period of probation, subject to several conditions, including the completion of a course of instruction on the Rules of Professional Conduct.
In the Ninth Circuit, prosecutors not only have a duty to disclose exculpatory and impeaching evidence to a defendant prior to entering into a plea agreement, but also may not ask that the defendant give up that right as part of the plea. In United States v. Ruiz, 241 F.3d 1202 (9th Cir. 2001), the court held that a plea agreement that contained an explicit waiver of the defendant's rights under Brady v. Maryland could never be voluntary or intelligent unless the defendant is aware of the exculpatory evidence against her.
The case arose under the "fast-track" program in San Diego, which allows a defendant to plead guilty and waive her Brady and other rights in exchange for a lower sentence under the sentencing guidelines. The court remanded the case back to the district court to determine whether the government had improperly withheld a favorable sentencing recommendation based on the defendant's refusal to give up her right under Brady.
A strong dissent from one judge may have prompted the Ninth Circuit's decision to rehear the matter en banc, 242 F.3d 1157. The government has argued that such a rule will impede plea negotiations and the use of informants because their identities will have to be released prior to trial. Several circuits (although not the Seventh) have required Brady disclosure before a plea, but the Ninth Circuit stands alone in its holding that a waiver of such a right is unconstitutional.
In the Eleventh Circuit, a prosecutor got into trouble when he was found to have impermissibly influenced the grand jury, with the resulting indictment dismissed. The prosecutor had suggested to the grand jury that indicted the case that the defendant had committed other crimes for which he was not charged. In United States v. Sigma, 244 F.3d 841 (11th Cir. 2001), the court held that the prosecutor had denied the defendant of his Sixth Amendment right to an indictment for this conduct, as well as hinting to the grand jury that its predecessor had wanted to indict the case itself, but had been held up by the bureaucracy in the U.S. Attorney's Office. Dismissal of an indictment is rare, but the court stressed that rubber stamping by grand juries was enough of a problem without the additional misconduct as well.
Good intentions did not absolve a Colorado state prosecutor who impermissibly pretended to be a public defender to coax a triple murderer into surrendering to authorities and releasing his hostages. In People v. Pautler, No. 00 PDJ 016 (April 2, 2001), the Colorado lawyer discipline panel found the prosecutor guilty of a violation of the Colorado equivalent of the ABA Model Rule 8.4, which prohibits an attorney from acting deceitfully. The prosecutor had adopted the ruse when the defendant, who already had killed three women and had raped a fourth whom he was holding as a hostage, asked to speak to a public defender. After talking with the prosecutor, the defendant surrendered.
The panel ruled that the ends did not justify the means and suspended the prosecutor from the practice of law for three months, staying the sentence during a year of probation. The prosecutor, who says that he would do the same thing again, has appealed to the Colorado Supreme Court.
In re Ferrey, 774 A.2d 62 (R.I. 2001). Steven Ferrey, a Massachusetts attorney who had received permission from the Energy Facility Siting Board of Rhode Island to appear in proceedings before it, applied to the Rhode Island Supreme Court for permission to appear pro hac vice before the administrative agency. The court allowed his request but declined to make its order nunc pro tunc to the date of his first appearance before that agency, pointing out that Rhode Island law prohibited the unauthorized practice of law and prohibited the receipt of attorney fees for the unauthorized practice of law. The court refused to approve, retroactively, what might be prosecuted as the unauthorized practice of law in that state, explaining that Mr. Ferrey's receipt of permission to practice from the agency itself might have been sought and granted in good faith, but only the Rhode Island Supreme Court has the authority to decide who will practice law in Rhode Island. One justice of the court, dissenting in part, would have approved the request to make the permission retroactive, citing the lack of any specific rule as to obtaining pro hac vice status before an administrative tribunal and the agency practice of allowing such requests, as well as the attorney's good faith belief that the agency had the power to authorize his appearance. The dissent noted that "inevitable tactical attempts" were already underway to annul everything the attorney had done in practice at the administrative agency prior to the court's allowance of his request to practice pro hac vice.