Earlier this year, the Indiana Supreme Court found that

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1 ETHICS Prosecutors and Literary or Media Deals: Conflicts of Interest Hiding in Plain Sight BY PETER A. JOY AND KEVIN C. McMUNIGAL Earlier this year, the Indiana Supreme Court found that the head prosecutor for Floyd County, who was the state s representative for the National District Attorneys Association and the chair of the ethics committee for the Indiana Prosecuting Attorneys Council, had violated conflict of interest rules by entering into a book deal about a pending case, and imposed a public reprimand. (In re Henderson, No. 22S DI-135 (Ind. Jan. 13, 2017), Prior to the disciplinary action, the Indiana Court of Appeals reversed a trial court decision denying the appointment of a special prosecutor, and found that the prosecutor s conflict of interest triggered by the literary deal required his removal from the case. (Camm v. State, 957 N.E.2d 205 (Ind. Ct. App. 2011).) David Camm, a former state trooper, was facing his second retrial for allegedly killing his spouse and two minor children. Hours before the jury returned guilty verdicts on all three murder charges, a literary agent contacted the prosecutor, through an to the prosecutor s spouse, about a book the prosecutor planned to write about the Camm case. A week after the guilty verdicts, and approximately two weeks before the trial court sentenced Camm to life without parole, the prosecutor signed the literary agent s representation agreement. (Id. at 207.) While the case was on appeal, the prosecutor continued to represent the state, coauthored a proposal about the book, and received a publishing agreement with an advance payment for the book. After the convictions were reversed, the prosecutor sought an extension of the book deadline, stating that if the book came out before the third trial [i]t PETER A. JOY is the Henry Hitchcock Professor of Law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri; he can be reached at joy@wustl.edu. KEVIN C. McMUNIGAL is a professor of law at Case Western Reserve University School of Law in Cleveland, Ohio; he can be reached at kcm4@case.edu. Both authors are regular columnists for Criminal Justice magazine and are coauthors of Do No Wrong: Ethics for Prosecutors and Defenders (2009), as well as the chapter Basic Ethics: Criminal Practice and the Media in Media Coverage in Criminal Justice Cases (Andrew E. Taslitz ed., 2013). would jeopardize the case, potentially getting me removed from the case due to certain disclosure and opinions we are writing in the book. This cannot happen. In addition, as you and [my coauthor] have discussed, this is now a bigger story. (Id.) The prosecutor also requested that the agent push for something more out of the contract either on the front end or the back. (Id. at 208.) It was later agreed between the prosecutor and the publisher that the advance checks would be returned and the contract canceled, and it was suggested that they could always start over again after the completion of the legal process. (Id.) In issuing the public reprimand, the Indiana Supreme Court affirmed the findings of the hearing officer and the Indiana Supreme Court Disciplinary Commission that, based on the prosecutor s conflict between his duties to the State and his own personal interests and the impact that conflict had upon the criminal proceedings against Camm, the prosecutor had violated Indiana Rules of Professional Conduct 1.7(a)(2), 1.8(d), and 8.4(d). (In re Henderson, slip op. at 2.) This recent Indiana case is the not the first time disciplinary authorities and courts have found that a prosecutor had a conflict of interest for entering into a literary or media deal related to a pending case. Prosecutors in other states, especially in California, have prompted defense motions to disqualify or for recusal when they have entered into literary or media agreements (see, e.g., Adam Liptak, When Literary and Prosecutorial License Collide, N.Y. Times, May 13, 2008, though public discipline of prosecutors is much rarer. Why do some prosecutors fail to recognize the conflict of interest entering into a literary or media deal on pending matters poses? In this column, we analyze the applicable ethics rules and the reasons for the rules, and we explore why a prosecutor, even a prosecutor serving on a prosecutor association s ethics committee like the Indiana prosecutor, may not recognize such a conflict of interest. We also discuss how courts and ethics authorities address allegations of a prosecutor s conflict of interest for entering into a literary or media deal on a pending matter. We conclude with some recommendations aimed at providing more guidance on the issue of entering into literary or media deals while representing a client. THE APPLICABLE ETHICS RULES There are three primary ethics rules that any lawyer, including a prosecutor, must consider in contemplating a literary or media deal while representing a client. Two of these rules, ABA Model Rules of Professional Conduct 1.8(d) and 1.7(a)(2), are conflict of interest rules, and the third, Model Rule 8.4(d), is an ethics rule that prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. Model Rule 1.8(d) most directly addresses the issue of a lawyer entering into a literary or media deal while a client matter is pending. It states: Prior to the conclusion of representation of a client, a lawyer shall not make or 42 CRIMINAL JUSTICE n Fall 2017

2 negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. Comment 9 explains that such a literary agreement creates a conflict between the interests of the client and the personal interests of the lawyer because [m]easures suitable in the representation of a client may detract from the publication value of an account of the representation. The conflicts of interest specified in Model Rule 1.8, including the prohibition on entering into a literary or media deal for a pending case, pose great risks of overreaching by the lawyer and interfering in the normal client-lawyer relationship by undermining the lawyer s duty of client loyalty and the lawyer s exercise of independent judgment to promote the client s interests. These Model Rule 1.8 conflicts are often hard to monitor, and ethics authorities use bright-line rules both to define these specific conflicts and either to limit or strictly prohibit client consent to these conflicts of interest. Respect for client autonomy usually means that a client may consent to a conflict of interest, but only a few of the specified conflicts in Model Rule 1.8, such as entering into a business transaction with client, may be cured under some circumstances with the client s informed written consent. The other Model Rule 1.8 conflicts, including entering into a literary or media deal while representing a client, are nonconsentable. In these instances, bar authorities have determined that the risk of the conflict interfering with the lawyer s representation of the client is so great that it cannot be waived or consented to by the client. Such is the case when a prosecutor enters into a literary or media deal about a pending case. In addition to Model Rule 1.8(d), Model Rule 1.7(a)(2) states that a concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by... a personal interest of the lawyer. Under Model Rule 1.7(b)(1), a client may give informed consent, confirmed in writing, to a Model Rule 1.7(a)(2) conflict of interest in some circumstances if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. In this way, Model Rule 1.7 sets a standard both for defining a conflict of interest and for determining when and under what circumstances a client may waive the conflict of interest. Here again, it is the prosecutor s personal financial interest in the literary or media deal while the client matter is pending that triggers the conflict of interest under Model Rule 1.7(a)(2). We believe that it would not be reasonable for a prosecutor to conclude that informed client consent to a literary or media deal would be possible due to the difficulty in predicting and monitoring the impact of the prosecutor s financial interests in the literary or media deal on the prosecutor s representation of the government in an ongoing case. Moreover, as we will discuss later, there is some question whether the government is even capable of consenting to such a conflict of interest even under a Model Rule 1.7 analysis. In addition to these two conflict of interest rules, Model Rule 8.4(d) is also violated when a prosecutor enters into a literary or media deal in a pending matter. Model Rule 8.4(d) states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Because there is a significant risk that the prosecutor s exercise of independent judgment will be influenced by the prosecutor s financial interests in the literary or media deal, entering into such a deal would be prejudicial to the administration of justice. The mere existence of a literary or media deal raises questions about the fairness of the prosecutor s decisions and actions and whether the prosecutor is pursuing the government s interests or the prosecutor s interests in the way a case is prosecuted. It is important that the criminal justice system appear to operate fairly, and the motives of the prosecutor should be above reproach or public confidence in the system may be undermined. The ABA Criminal Justice Standards for the Prosecution Function, Standard , entitled Literary or Media Rights Agreements Prohibited, also directly addresses this issue. Standard (a) states: Before the conclusion of all aspects of a matter in which a prosecutor participates, the prosecutor should not enter into any agreement or informal understanding by which the prosecutor acquires an interest in a literary or media portrayal or account based on or arising out of the prosecutor s involvement in the matter. Standard (b) goes further than the current ethics rules by contemplating the possibility of a future media deal. It states: The prosecutor should not allow prosecutorial judgment to be influenced by the possibility of future personal literary or other media rights. Thus, Standard (b) addresses the potential risk that a possible future literary or media deal poses, and reinforces the prosecutor s duty of client loyalty and the obligation to exercise independent professional judgment on behalf of the government in the face of the possibility of such a deal. THE RISKS In exercising prosecutorial judgment and discretion, a prosecutor faces some powerful incentives to put selfinterest above the government s interest. These incentives include making decisions based on how a decision may affect the prosecutor s advancement within the prosecutor s office or a future political career. In addition, a prosecutor may be driven to make decisions to enhance the prosecutor s reputation in the legal community and among the public. Finally, there are some instances, such as entering into a literary or media deal, in which the prosecutor s personal financial interests may interfere with the exercise of independent prosecutorial judgment on behalf of the government. Once a prosecutor enters into a literary or media deal, the prosecutor has a financial incentive to increase the value of those literary or media rights to advance his or her own economic self-interest. The financial incentive puts at risk a number of the prosecutor s decisions and actions that may CRIMINAL JUSTICE n Fall

3 affect the value of the prosecutor s literary rights. Initially, the prosecutor s exercise of prosecutorial discretion whether to prosecute the case is threatened because a decision not to prosecute would likely reduce the value of the prosecutor s literary or media rights. When charges are brought, the prosecutor s decision whether and on what terms to enter into plea negotiations with defense counsel is at risk of being influenced by the concern for media value. A prosecutor might reject a plea offer that would otherwise be acceptable to have the drama of a trial. Or, a prosecutor may be tempted to withhold exculpatory evidence that would undercut the chance of a conviction. At each and every decision point in the case, there will be the temptation to make decisions to enhance the publicity and dramatic value of both the case and the prosecutor s role in it rather than pursuing the government s interests in a just and fair adjudication of the case. Each of the prosecutor s decisions and actions presents the prosecutor with the opportunity to yield to the incentive to promote his or her financial self-interest. A prosecutor s personal interests in advancing his or her professional or political career and reputation pose similar risks, but these risks are not as explicit as the financial interests in a literary or media deal. In the absence of something as tangible and transparent as a prosecutor s financial interests in a literary or media deal, the legal profession and the criminal justice system rely on each prosecutor to self-monitor how these intangible and less visible personal interests may affect his or her exercise of independent prosecutorial judgment. WHY A PROSECUTOR MAY NOT RECOGNIZE THE CONFLICT There are several reasons why a prosecutor may not recognize the conflict of interest posed by a literary or media deal about a pending case. Some of the impediments to recognizing and appreciating the conflict are unconscious biases that everyone faces. But some unconscious biases may be amplified due to the role of a prosecutor in the criminal justice system. Other impediments to a prosecutor recognizing the conflict of interest may be related to the text of the primary ethics rule involved, Model Rule 1.8(d). Unconscious biases. In an article delving into the psychology of conflicts of interest in criminal cases, Tigran Eldred identifies three chief unconscious biases that interfere with ethical judgments, including recognizing and appreciating conflicts of interest, which everyone faces. (See Tigran W. Eldred, The Psychology of Conflicts of Interest in Criminal Cases, 58 U. Kan. L. Rev. 43, 66 (2009).) First is the self as moral or illusion of objectivity bias, which is the tendency to believe oneself as more honest, trustworthy, ethical, and fair than others. (Id.) Eldred explains that this bias leads to overconfidence that one is more objective and better than others, to which a prosecutor may be especially susceptible being charged with the responsibility of prosecuting violations of the law. Second is the self as competent bias, which describes the false perception people have of themselves as being better than others in possessing a series of desirable attributes, which include decision making, rationality, and intelligence. (Id. at 67.) Third is the self as deserving bias, which means that people allocate more responsibility to themselves for contributions to an outcome than they actually deserve. (Id.) Eldred explains that [e]ach of these biases is stubborn in that the decision-maker, not aware of its existence, will tend to believe that he or she acted ethically, even in the face of evidence to the contrary. (Id.) Eldred cites several psychological studies demonstrating that these unconscious biases frequently cause lawyers to act out of self-interest when conflicts of interest are present. He explains that when a conflict of interest is present, and selfinterest and professional responsibility collide, the decision often results in an automatic preference for self-interest. (Id. at ) Eldred also cites a behavioral economics study by Leonard Gross in which Gross found that ethics rules fail to counteract the unconscious biases that lead lawyers to favor self-interest over clients interests when conflicts of interest are present. (See Leonard E. Gross, Are Differences among the Attorney Conflict of Interest Rules Consistent with Principles of Behavioral Economics?, 19 Geo. J. Legal Ethics 111, (2006).) In addition to these unconscious biases, another reason for a prosecutor to fail to recognize a conflict of interest has to do with the prosecutor s role in the criminal justice system. The prosecutor has the discretion to decide whether and whom to charge with what crime, and the exercise of this prosecutorial discretion is rarely reviewable. In other words, the prosecutor, especially the head prosecutor, typically decides the interests of the client (the government), and in most instances does not have to be accountable for his or her judgment. Because a prosecutor is accustomed to deciding what is in the government s interests, a prosecutor may not appreciate that his or her independent prosecutorial judgment could be compromised by a literary or media deal. This is consistent with studies that show that when individuals have to justify their decisions, the specter of accountability makes individuals more vigilant in the way they exercise their judgments. Textual. Although a state s ethics rules apply to all lawyers in the jurisdiction, some prosecutors may read their state s version of Model Rule 1.8(d) as not applying to them because it refers to obtaining literary or media rights from the client, something only a defense lawyer is likely to do. There is some support for such a reading based on the text of Model Rule 1.8(d), especially when read together with the rest of the Model Rule 1.8 conflicts rules. Many of the other specific conflicts of interest in Model Rule 1.8 focus on such issues as business transactions with a client, soliciting a gift from a client, financial transactions between a client and lawyer, acquiring a proprietary interest in a client s cause of action or the subject matter of the litigation, and having sexual relations with a client. None of these would apply to a prosecutor. In addition, comment 9 to Model Rule 1.8(d) states: An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between 44 CRIMINAL JUSTICE n Fall 2017

4 the interests of the client and the personal interests of the lawyer. A reasonable prosecutor or any other lawyer may read the comment s reference to acquires literary or media rights as implying that Model Rule 1.8(d) s prohibition on negotiating a literary or media deal prior to the conclusion of the representation of a client is referring only to acquiring such rights from the client. In other words, a prosecutor may think that he or she owns the rights to his or her own story about an ongoing case, and entering into a literary or media deal would not require acquiring literary or media rights from anyone that might trigger a conflict of interest. Such a prosecutor may think that the Model Rule 1.8(d) prohibition would only apply to defense lawyers, or other private lawyers, because only a private lawyer would trigger a conflict of interest while representing a client if the lawyer obtained literary or media rights from a client, who may be willing to give the rights in exchange for obtaining private representation. Such a narrow interpretation of Model Rule 1.8(d), concluding that it only prohibits obtaining literary or media rights from a client, would be consistent with the legislative history of the Model Rules. The Kutak Commission s report accompanying the proposed Model Rules of Professional Conduct states that paragraph (d) of Model Rule 1.8 stands [f]or the principle that a lawyer cannot agree to payment in the form of literary rights to a matter arising from the representation, and the report cites to two cases in which such literary deals had been made in lieu of payment of fees. (ABA Comm n on Evaluation of Prof l Standards, Proposed Final Draft Model Rules of Professional Conduct 87 (1981).) We believe that because the ambiguity may lead to misinterpreting the purpose and scope of Model Rule 1.8(d), this rule should be clarified to make explicit that it applies to a lawyer s own story about a case and not just the client giving the client s literary or media rights to the lawyer. We also think that the clarification should be explicit enough that Model Rule 1.8(d) would clearly apply to prosecutors as well as other lawyers. In addition to the ambiguity in Model Rule 1.8(d), that it only prohibits obtaining literary or media rights from a client, the Restatement of the Law Governing Lawyers also does not sufficiently address this type of conflict of interest. The Restatement addresses the prohibition on a lawyer entering into a literary or media deal in a section with the heading Forbidden Client-Lawyer Financial Arrangements. (See Restatement (Third) of the Law Governing Lawyers 36(3).) The Restatement does not mention a lawyer entering into a literary or media deal in its conflicts of interest section discussing a lawyer s personal interests affecting the representation of the client. (See id. 125.) We believe that the mixed signals the Restatement gives on the conflict of interest a literary or media deal poses should also be remedied by revising the Restatement. The Restatement should address the literary or media deal conflict of interest in its conflicts of interest sections as a separate matter. A comment to the new section should explicitly state that a prosecutor entering into a literary or media deal would trigger such a conflict, and that the conflict is nonconsentable. In our view, it is unfortunate that ethics authorities in the District of Columbia have interpreted DC s version of Model Rule 1.8(d) consistent with the view that the specific prohibition against a lawyer entering into a literary or media deal does not apply when the deal involves the lawyer s own story about a case. District of Columbia Ethics Opinion 334 (2006), focused on the language of DC s version of Model Rule 1.8(d), which tracks the Model Rule. In focusing on the language in DC Rule 1.8, the opinion concluded: We believe the rule prohibits a lawyer from acquiring media rights from the client or otherwise; it does not, however, prohibit the lawyer from making an agreement with media representatives with respect to his own media rights. But the DC ethics opinion found that the general conflict of interest rule for current clients, DC Rule 1.7, would apply to a lawyer entering into a literary or media deal about a pending client case. The ethics opinion states that [s]uch a situation would present a serious conflict of interest, and any agreement made by a lawyer with media representatives presents a conflict of interest if, as a practical matter, its value to the lawyer might fluctuate depending on later events in a related matter in which the lawyer is representing a client. (Id.) The opinion also stated that obtaining valid informed consent of the client would be difficult because it requires the client to anticipate future aspects of the representation to assess their potential impact on the lawyer s ability to represent the client, and either the client should have independent counsel or the lawyer should consult independent counsel to assure that the lawyer will obtain an objective view on whether the representation can proceed with consent. (Id.) As the DC ethics opinion points out, even if a prosecutor were to conclude that the state s version of Model Rule 1.8(d) does not apply to negotiating a literary or media deal for the prosecutor s own story about an ongoing case, the state s general conflict of interest rule, its analog to Model Rule 1.7(a)(2), would apply. Whether informed client consent is possible under such a situation for any lawyer is doubtful, as the DC ethics opinion concludes. Advance waivers of conflicts of interest are particularly difficult and disfavored, and it may be unreasonable to seek such an advance waiver due to the inability to predict the potential impact of a literary or media deal on the lawyer s representation of the client. Obtaining client consent for a prosecutor to enter into a literary or media deal is problematic for two additional reasons. First, the prosecutor cannot act on the government s behalf and consent to a conflict involving the prosecutor s own self-interest, and it is unlikely that another prosecutor in the same office could be disinterested enough to act on behalf of the government in giving such consent. Second, many states have a per se rule that the government cannot CRIMINAL JUSTICE n Fall

5 consent to a conflict of interest. (See, e.g., N.J. Advisory Comm. on Prof l Ethics, Op. 697 (2005) (stating that although the state had adopted the Model Rules, it retained a per se rule against the government consenting to a conflict of interest essentially [as] a protective remnant of the appearance of impropriety rule ); Tenn. Bd. of Prof l Responsibility, Formal Op F-146 (2002) (holding that the government cannot consent to a part-time prosecutor s representation of criminal defendants within the same jurisdiction).) HOW AUTHORITIES HAVE ADDRESSED THE ISSUE The issue of a prosecutor entering into a literary or media deal usually comes to the attention of the courts or ethics authorities through the action of the defendant and defense counsel. At the trial court level and on appeal, the defendant usually seeks a new prosecutor either through a motion to disqualify or a motion for recusal, or by seeking the appointment of an independent prosecutor. In terms of ethics authorities, the defendant or defense counsel usually lodges an ethics complaint making an allegation of conflict of interest. The example we used in the introduction involving the Indiana prosecutor involved both the courts and ethics authorities. Judicial controls. In Camm, the prosecutor canceled the literary contract in an effort to avoid the conflict of interest having such a contract posed, though, as mentioned at the outset of this column, he still intended to write the book and had left open the possibility of reentering the contract with the same publisher. (957 N.E.2d at 207.) After the literary contract was canceled, the prosecutor refiled the murder charges against Camm. That same day, Camm sought the appointment of a special prosecutor. The trial court denied the petition for a special prosecutor, finding that although the prosecutor might pursue such a deal in the future, he would not be laboring under a literary deal during the third trial. In reviewing a denial of a motion to disqualify or recuse a prosecutor or a motion for the appointment of a special prosecutor due to a prosecutor s alleged conflict of interest, appellate courts use an abuse of discretion standard. The Indiana Court of Appeals employed such a standard in the Camm case. After giving deference to the trial court, the appellate court stated that for the purposes of appointing a special prosecutor, an actual conflict of interest arises where a prosecutor places himself in a situation inherently conducive to dividing his loyalties between his duties to the State and his personal interests. (Id. at 210.) The appellate court reasoned that, under Indiana Rule 1.8(d), due to the prosecutor s interest in literary rights, a prosecutor may conduct the prosecution in such a way that does not serve the ends of justice or weakens the public confidence in the fairness of the trial. (Id.) The court also noted that the state conceded at oral argument on appeal that if the literary contract had still been in place the prosecutor would have had an actual conflict of interest. (Id.) While the trial court placed great weight on the cancellation of the literary contract, the appellate court did not. The appellate court concluded that the contract is a bell that cannot be unrung, and that by entering into the contract before the retrial, the prosecutor permanently compromised his ability to advocate on behalf of the people of the State of Indiana in this trial. (Id.) The appellate court explained that its decision did not rest solely on whether there was a contract, but also on the prosecutor s personal agenda to both write this book and ensure that Camm is prosecuted. (Id. at ) The court stated that the prosecutor should not have a personal interest in [the] case separate from his professional role as prosecutor, and cannot be both committed to writing a book about the Camm case and serve as prosecutor. Such a personal interest creates an actual conflict of interest with his duties as prosecutor. (Id. at 211.) The appellate court reversed and remanded the case for the appointment of a special prosecutor. At the third trial, new DNA evidence indicated that another person was responsible for the murders, and a jury acquitted Camm of all charges. Ethics authorities oversight. As mentioned at the start of this column, the prosecutor s literary deal in the Camm case triggered an ethics complaint, which was filed by Camm s defense counsel. The hearing officer found that once the prosecutor entered into the original literary deal, he violated Indiana Rules of Professional Conduct 1.7(a)(2), 1.8(d), and 8.4(d) due to the conflict between the prosecutor s personal interests and his duties to the client (the State of Indiana). (In re Henderson, No. 22S DI-135.) The hearing officer explained that the prosecutor compromised his independent judgment by securing his personal interests, [and] he irreversibly and materially limited his own ability to represent the State in the prosecution of Camm. (Id.) As punishment for the violations of these ethics rules, the hearing officer recommended a public reprimand, but the Indiana Supreme Court Disciplinary Commission recommended suspension. In affirming the findings of the violation of these three ethics rules, the Indiana Supreme Court imposed a public reprimand, noting that this was a single instance of misconduct by the prosecutor, and it occurred in an unusual case. CONCLUSION Most prosecutors likely recognize that entering into a literary or media deal while a case is pending is a conflict of interest, but, as the Camm case indicates, some do not. However, as the Camm case concluded, entering into a literary or media deal on a pending matter violates both the specific bright-line conflict of interest rule expressed in a state s version of Model Rule 1.8(d) and the conflict of interest standard expressed in a state s version of Model Rule 1.7(a)(2). In order to clarify the ambiguities we identify in both Model Rule 1.8(d) and the Restatement of the Law Governing Lawyers, we recommend changes to both of these sources of ethical guidance. Our recommended changes would make it explicit that the conflict of interest triggered by entering into a literary or media deal on a pending client matter applies to a lawyer s own story and not just to a client giving up his or her rights, and that the prohibition applies equally to prosecutors as it does to other lawyers.n 46 CRIMINAL JUSTICE n Fall 2017