4/17/2018 ETHICS Maria Jacob & Ken Troccoli, AFPDs (Alex.) Apr. 2018 WEST 2017 Loser Score = East 1 (2014) West 3 (2015-17) Cpt. Cpt. Lisa Lorish Megan Durkee 2 1
4/17/2018 DISCLOSURE & FAIRNESS Question 1 Q. 1-W (1 POINT) Prolific Prosecutor has charged your client with a felony assault based upon the victim’s stmt. Client claims it is a case of mistaken id. PP is aware of a cooperating witness’ (CW) stmt stating that client wasn’t involved in the assault. PP also is aware that the only eyewitness (other than the combatants) has died. Before the preliminary hearing (which is pending), PP offers a plea bargain to client to plead guilty to a misdemeanor with no jail time. The deadline for accepting the offer is the day before the prelim. PP hasn’t disclosed any of the exculpatory info as he believes Brady doesn’t require disclosure at this time. 4 2
4/17/2018 Q. 1-W (1 POINT) Is the failure of the prosecutor to disclose the existence of the exculpatory evidence a violation of the RPC? A. No, because disclosure under Brady requires that the evidence be disclosed in time for it to be effectively used at trial. B. No, because defense counsel has not yet asked to see the exculpatory evidence. C. No, unless the prosecutor obstructs 5 access to the evidence. D. Likely yes. QUESTION 1-E (1 POINT) At the time Prolific Prosecutor extends the plea offer, he tells defense counsel of the exculpatory evidence but PP also says that he has requested the govt’s witnesses to not speak with defense counsel. Have the RPC been violated? A. No, because the RPC only prohibit “obstructing” a party’s access to evidence and here, PP only requested that they not talk. B. No, unless PP misrepresents a material fact. C. No, unless the witness defense counsel 6 wants to speak with has “material” information. D. Yes. 3
4/17/2018 Q. 1 ANSWERS ● Brady standard: prosecutor has legal (Due Process) obligation to disclose material exculpatory evidence in time for the D to make effective use of it at trial. ● RPC 3.8(d) (Responsibilities of a Prosecutor): Prosecutor must “make timely disclosure” to defense counsel of the existence of evidence that “the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court.” 7 Q. 1 ANSWERS ● LEO 1862 (2012) states that the duty of timely disclosure of exculpatory evidence under R. 3.8(d) requires “earlier disclosure than the Brady standard.” Timely = “occurring at a suitable or opportune time or coming early or at the right time.” • “Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and circumstances of the case.” • Duty of timely disclosure is violated when the prosecutor “intentionally delays making the disclosure without lawful justification or good cause.” 8 4
4/17/2018 Q. 1 ANSWERS - FAIRNESS ● R. 3.4 (Fairness to Opposing Party & Counsel) A lawyer shall not: “obstruct” a party’s access to evidence or “counsel or assist another person to do so. R. 3.4(a). “request a person other than a client to refrain from voluntarily giving relevant information to another party.” R. 3.4(h). 9 Limitation in 3.4 doesn’t apply in civil cases. THROWING CLIENT UNDER THE BUS & CANDOR TO THE TRIBUNAL - QUESTION 2 10 5
4/17/2018 Q. 2-W (1 POINT) Your client is pending a supervised release violation hearing. He has had 2 prior SRV Petitions/hearings and has a track record for failing to appear for the prior hearings which resulted in bench warrants being issued. You called the client once you recd the present (3 rd ) SRV Petition and informed him of the hearing date/time. Since that initial call, you have tried multiple times, w/o success, to reach your client. He has not returned your calls. On the day of the hearing your client does not appear and the judge asks you whether you have been in touch with your client. 11 Q. 2–W (1 PT.) Which of the following responses are permitted under the Rules? A. Yes, I have been in touch with him. B. Yes, I have been in touch with him and I told him of the court date. C. Yes, but I believe he has a good reason for not being here today. D. I have no representations to make at this time. E. All of the above are permitted under the Rules. 12 6
4/17/2018 Q. 2-E (1 POINT) Additional Facts 30 minutes before the hearing, your client calls you and says that he is ill with a severe “upset stomach” and unable to attend the hearing. He instructs you to ask the Court for a continuance. You are concerned because he gave the same reason (illness) for his failures to appear at his prior SRV hearings. You do not have time to investigate your client’s current claim of illness. When you appear before the judge 30 minutes later, the judge asks you whether you have been in touch with your client. 13 Q. 2–E (1 PT.) Which of the following responses are permitted under the Rules? A. Yes, I have been in touch with him and I told him of the court date. B. Yes, and he has told me that he can’t attend today due to illness. C. Yes, but I believe he has a good reason for not being here today. D. I have no representations to make at this time. E. Both B and C. 14 7
4/17/2018 Q.2 -- APPLICABLE RULES ● RPC 1.6 (Confidentiality of Information): counsel must maintain confidences/secrets including info that “would be embarrassing or would be likely to be detrimental to the client unless the client consents.” - Rule also permits disclosures that are “impliedly authorized in order to carry out the representation.” ● RPC 3.3 (Candor Toward the Tribunal): counsel has a duty to “not knowingly . . . make a false statement of fact or law to a tribunal.” ● RPC 1.3 (Diligence): counsel has duty to diligently 15 represent a client and to not “intentionally prejudice or damage” a client except as permitted under Rs. 1.6 and 3.3. 2.W SCENARIO: NO CONTACT WITH CLIENT BAD ANSWERS Violates 1.6 bc reveals to A. Yes, I have been in touch with ct that client has been him. informed of the court B. Yes, I have been in touch with date and/or imply that him and I told him of the court client has no good cause date. for his FTA. C. Yes, but I believe he has a good Violates 3.3 bc atty reason for not being here today. doesn’t have enough info to make this stmt. GOOD ANSWER 16 Doesn’t reveal client D. I have no representations . info, minimizes harm to client & is truthful. 8
4/17/2018 2.E SCENARIO: CLIENT SAYS HE’S ILL BAD ANSWERS A & D violate R. 1.3 A. Yes, I have been in touch with bc not diligently him and I told him of the court representing client. date. C. Yes, but I believe he has a good C violates 3.3 bc it reason for not being here today. may not be factually D. I have no representations. accurate. GOOD ANSWER Truthful, and disclosure is B. Yes, and he has told explicitly or impliedly me that he can’t attend 17 authorized so as to today due to illness. diligently represent client. Role Play (Q. 3) U.S. v. Olivia Outlaw THE DEBRIEF 18 9
4/17/2018 AUDIENCE PARTICIPATION 5 Points Polltogo http://p2.gg/zi4 19 Qs. 3A - C You are STILL representing Olivia Outlaw, who, in the middle of her trial, entered a guilty plea to a charge that she unlawfully sold a firearm (a gold-colored Glock) to a convicted felon. As part of her plea agreement, Outlaw has promised to cooperate and provide information to AUSA Bigge Cahones about the name of the Bad Hombre who provided Outlaw with the Glock. Cahones also wants to know what Outlaw has been doing with the Glock. 20 10
4/17/2018 You have high hopes for a successful debrief. You have prepared Outlaw thoroughly and she has told you that she got the Glock from her cousin, Nate R. Army (aka NRA). She also has given you details on other firearms that she has obtained from NRA and then sold. Outlaw has also told you that she used the Glock to rob a drug dealer of his cash. She says that her Facebook page, which your investigator has seen, has a photo of NRA holding the Glock right before he sold it to her. NRA “I love the 2d Amendment!” Qs. 3A-C I’m Snitching! The Plea Agreement contains the standard language requiring Outlaw’s cooperation to be truthful and complete. It also contains the standard provision granting immunity for any truthful information provided pursuant to the Agreement except for information concerning “a crime of violence or conspiracy to commit a crime of violence.” 22 11
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