3 New Rules Every Criminal Law Attorney Needs to Know

new rules of professional conductThe 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 [3]: “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 [8] 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 [3] 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 [4] 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.

For more on the new rules, check out CEB’s webinar The New Rules of Professional Conduct: Discrimination and Competence on September 25th at noon, in which Rules Revision Commission member Carol Langford will break down the new rules and tell you what you need to know to meet your ethical duties. And 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 23rd at noon.

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Choosing the Appropriate Elder Abuse Civil Protective Order

GettyImages-940320528 (1)Unfortunately, elder abuse is a much more rampant problem than we’d like to admit. In fact, studies show that approximately 10 percent of Americans aged 60 or over have experienced some form of elder abuse.

For attorneys with older or at-risk clients, it’s important to keep in mind the different protective orders available and to select the most appropriate order to ensure your client’s ongoing safety and welfare.

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Silence: the Valuable Right that Protects Your Client

right to remain silentDefense counsel should remember one basic rule when consulted by a client during a criminal investigation: Tell the client not to speak about the case with anyone. This means no talking to the police, probation department, girlfriend, boyfriend, mother, father, sheriff’s deputy, cellmate, news media, bail agent, or best friend.

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Begin and End with Your Strongest Questions

use strong question to open and close your cross-examination of a trial witnessWhen cross-examining a witness, almost always begin and end with your strongest questions. Except in a couple of situations. Continue reading

Get a Crash Course from Your Expert

Learn fast from your expert about the area of expertiseSome lawyers decide at the beginning of a case that they’ll never be able to understand what the expert is talking about, and they make no effort to do so. Bad plan! Regardless of the expert’s skill, it’s the lawyer’s responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To do that, the lawyer needs to understand the expert’s testimony and field of expertise. Here are four ways to educate yourself fast. Continue reading

Should You Object to Compound Questions?

A question to a witness is objectionable on the ground that it’s compound if it joins two or more questions with the disjunctive “or” or the conjunctive “and.” But it may not always make sense to object. Here’s a look at the dangers of compound questions and how to handle them. Continue reading

3 Times Not to Ask Leading Questions on Cross

attorney questioning witness during cross-examinationLeading questions are the main tool of the cross-examiner—they tell a witness how to answer by suggesting an answer. See Evid C §764. But you should also know when using leading questions on cross-examination isn’t the best technique. Continue reading

3 Things to Know about the Crime-Fraud Exception

lawyer meeting with clients and getting confidential informationExceptions to the attorney-client privilege in California are set out in Evid C §§956–962. Of particular interest since the FBI’s raid on the office of President Trump’s personal attorney Michael Cohen has been the crime-fraud exception to the privilege. Under this exception, there’s no attorney-client privilege “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” Evid C §956. Let’s break that down into three keys points to know. Continue reading

3 Things to Consider When Preparing a Young Witness

girl covering her mouth before testifying in courtWhen it comes to preparing a child to testify at trial, there are at least three things that differ from preparing an adult witness. Continue reading

Do You Need an Expert Witness, and If So, What Type?

Retaining an expert witness is expensive and may not be necessary in every case. Don’t try to keep up with the Jones & Jones firm: Just because the other side has an expert or because experts have traditionally been used in similar cases doesn’t mean you need one. And if you decide you do need an expert, make sure it’s the best type for your case. Continue reading