The following is a guest blog post by Garrick Byers, known as the Statute Decoder because of his facility in interpreting statutes and rules. He is the chairperson of the California Public Defenders Association’s (CPDA’s) Ethics Committee, and is a former CPDA president. He is a criminal law specialist and a frequent speaker and writer on criminal law topics, including ethics. He was a public defender for 33 years and is currently in private practice, handling criminal law appeals, writs, motions, and case consultations.
The new California Rules of Professional Conduct, effective November 1, 2018, use the format and much of the substance of the ABA Model Rules. Here are three of the most important changes for prosecution and defense counsel.
1. The most urgent change: prosecutorial discovery responsibilities (new Rule 3.8). The California Supreme Court adopted this new rule a year before the others, effective November 1, 2017, originally as an addition to current Rule 5-110. Paragraph (D) was added to require prosecutors to
[Disclose]…all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt…, mitigate the offense, or…the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
Also added was Comment : “The disclosure obligations…are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83…and its progeny.”
2. Communication with a represented party person (new Rule 4.2). Current Rule 2-100 bars communication without that lawyer’s consent only with a represented “party.” The new rule expands this to “person”:
(a) In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.
Comment  says “This rule…is not intended to preclude communications with represented persons [during]…investigative activities engaged in, directly or indirectly, by lawyers representing persons whom the government has accused of or is investigating for crimes, to the extent those investigative activities are authorized by law.”
3. Requirement to cite adverse authority (new Rule 3.3(a)(2)). It has never been a good tactic to fail to cite adverse authority, but it wasn’t against the disciplinary rules until now:
[A lawyer shall not] fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel…
Comment  adds, “Legal authority in the controlling jurisdiction may include legal authority outside the jurisdiction…such as a federal statute or case that is determinative of an issue in a state court proceeding or a Supreme Court decision that is binding on a lower court.”
Comment  says that this duty applies to “all lawyers, including defense counsel in criminal cases.” And that “[t]he obligations of a lawyer under these rules…[is] subordinate to applicable constitutional provisions.”
These and several other reforms and changes require the criminal law bar to become familiar with the new Rules of Professional Conduct and adjust their practices accordingly.
Don’t miss Mr. Byers discussing the rules in CEB’s webinar The New Rules of Professional Conduct: What All Attorneys Need to Know on October 9th at noon.
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