Legal Ethics AAMVA 2018: Workshop and Law Institute

Legal Ethics AAMVA 2018: Workshop and Law Institute By Jay Tiftickjian, Esq. Tiftickjian Law Firm 600 S. Cherry St. #1105 Denver, CO 80246 (303) 991-5896 jay@tiftickjian.com www.criminallawdenver.com Introduction This presentation will review some of the common ethical rules for judges, administrative law judges, and attorneys in the legal profession. The law and codes provided center around Colorado as that is where the seminar is located, but the implications of these codes and rules are essentially universal for all those involved in the legal field. I. Ethics in the Judiciary The Colorado Code of Judicial Conduct Preamble [1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. [2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence. [3] The Colorado Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of 1

judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies. Terminology Impartial, impartiality, and impartially mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge. Independence means a judge s freedom from influence or controls other than those established by law. Integrity means probity, fairness, honesty, uprightness, and soundness of character. Application (A) The provisions of the Code apply to all full-time judges. B) A judge, within the meaning of this Code, is anyone who is authorized to perform judicial functions, including an officer such as a magistrate, referee, or member of the administrative law judiciary. Canon 1 A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. Rule 1.1: Compliance with the Law A) A judge shall comply with the law,* including the Code of Judicial Conduct. (B) Conduct by a judge that violates a criminal law may, unless the violation is minor, constitute a violation of the requirement that a judge must comply with the law. (C) Every judge subject to the Code of Judicial Conduct, upon being convicted of a crime, except misdemeanor traffic offenses or traffic ordinance violations not including the use of alcohol or drugs, shall notify the appropriate authority* in writing of such conviction within ten days after the date of the conviction. In addition, the clerk of any court in this state in which the conviction was entered shall transmit to the appropriate authority within ten days after the date of the conviction a certificate thereof. This obligation to self-report convictions is a parallel but independent obligation of judges admitted to the Colorado bar to report the same conduct to the Office of Attorney Regulation pursuant to C.R.C.P. 251.20. 2

Rule 1.2: Promoting Confidence in the Judiciary A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety. [1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge. [2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code. [3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms. One meaning of impartiality in the judicial context is lack of bias for or against any party to a proceeding. Impartiality may also involve open-mindedness, not in the sense that judges should have no preconceptions on legal issues, but rather that judges should be willing to consider views that oppose those preconceptions and remain open to persuasion when those issues arise in a pending case. Republican Party of Minn. v. White, 536 U.S. 765, 775, 779 (2002). The role of the judiciary, if its integrity is to be maintained, is one of impartiality. People v. Martinez, 185 Colo. 187, 523 P.2d 120, aff d, 186 Colo. 225, 526 P.2d 1325 (1974). Courts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments. Wood Bros. Homes v. City of Fort Collins, 670 P.2d 9 (Colo. App. 1983). 3

The duty to be impartial cannot be fulfilled where, by his active role in the presentation of the prosecution s case, a trial judge calls witnesses, presents evidence, and crossexamines defense witnesses, because these are the acts of an advocate and not a judge. People v. Martinez, 185 Colo. 187, 523 P.2d 120, aff d, 186 Colo. 225, 526 P.2d 1325 (1974). Judge s use or vulgar and profane language in court, disparagement of other members of the judiciary, and repeated inappropriate behavior and statements in the courtroom undermined confidence in the judiciary and constituted conduct prejudicial to the proper administration of justice, warranting discipline. In re Lamdin, 948 A.2d 54, 66 (Md. Ct. App. 2008). Canon 2 A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. Rule 2.4: External Influences on Judicial Conduct (A) A judge shall not be swayed by public clamor or fear of criticism. (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge s judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge. [1] An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge s friends or family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences. Rule 2.9: Ex Parte Communications (A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter,* except as follows: (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is 4

permitted, provided: (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond. (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received. (3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge s adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter. (4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge. (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* or by consent of the parties to do so. (B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond. (C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed. (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge s direction and control. II. DMV Employee Ethics / Administrative Law Judges 1) All Colorado Department of Revenue Division of Motor Vehicle employees are members of the executive branch of the Colorado State government. 5

2) As employees of the executive, DMV employees are subject to Art. XXIX of the Colorado State Constitution, which covers ethical conduct of government officials. 3) The most pertinent areas of Art. XXIX are Sections 3 (Gifts), 5 (Establishment of the Independent Ethics Commission), and 6 (Penalties). Section 3: Gifts (1) No public officer, member of the general assembly, local government official, or government employee shall accept or receive any money, forbearance, or forgiveness of indebtedness from any person, without such person receiving lawful consideration of equal or greater value in return from the public officer, member of the general assembly, local government official, or government employee who accepted or received the money, forbearance or forgiveness of indebtedness. (2) No public officer, member of the general assembly, local government official, or government employee, either directly or indirectly as the beneficiary of a gift or thing of value given to such person's spouse or dependent child, shall solicit, accept or receive any gift or other thing of value having either a fair market value or aggregate actual cost greater than fifty dollars ($50) in any calendar year, including but not limited to, gifts, loans, rewards, promises or negotiations of future employment, favors or services, honoraria, travel, entertainment, or special discounts, from a person, without the person receiving lawful consideration of equal or greater value in return from the public officer, member of the general assembly, local government official, or government employee who solicited, accepted or received the gift or other thing of value. (3) The prohibitions in subsections (1) and (2) of this section do not apply if the gift or thing of value is: (a) A campaign contribution as defined by law; (b) An unsolicited item of trivial value less than fifty dollars ($50), such as a pen, calendar, plant, book, note pad or other similar item; (c) An unsolicited token or award of appreciation in the form of a plaque, trophy, desk item, wall memento, or similar item; (d) Unsolicited informational material, publications, or subscriptions related to the recipient's performance of official duties; (e) Admission to, and the cost of food or beverages consumed at, a reception, meal or meeting by an organization before whom the recipient appears to speak or to answer questions as part of a scheduled program; 6

(f) Reasonable expenses paid by a nonprofit organization or other state or local government for attendance at a convention, fact-finding mission or trip, or other meeting if the person is scheduled to deliver a speech, make a presentation, participate on a panel, or represent the state or local government, provided that the non-profit organization receives less than five percent (5%) of its funding from for-profit organizations or entities; (g) Given by an individual who is a relative or personal friend of the recipient on a special occasion. (h) A component of the compensation paid or other incentive given to the recipient in the normal course of employment. Section 5: Independent Ethics Commission 1) Five-person panel: 1 appointed by the Senate, 1 appointed by the House, 1 appointed by the Governor, 1 appointed by the Supreme Court, and 1 appointed by a majority vote of the previous 4 appointees. 2) How to trigger an action with IEC, and their powers: (3) (a) Any person may file a written complaint with the independent ethics commission asking whether a public officer, member of the general assembly, local government official, or government employee has failed to comply with this article or any other standards of conduct or reporting requirements as provided by law within the preceding twelve months. (b) The commission may dismiss frivolous complaints without conducting a public hearing. Complaints dismissed as frivolous shall be maintained confidential by the commission. (c) The commission shall conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint pursuant to written rules adopted by the commission. (d) The commission may assess penalties for violations as prescribed by this article and provided by law. (e) There is hereby established a presumption that the findings shall be based on a preponderance of evidence unless the commission determines that the circumstances warrant a heightened standard. 7

(4) Members of the independent ethics commission shall have the power to subpoena documents and to subpoena witnesses to make statements and produce documents. (5) Any public officer, member of the general assembly, local government official, or government employee may submit a written request to the independent ethics commission for an advisory opinion on whether any conduct by that person would constitute a violation of this article, or any other standards of conduct or reporting requirements as provided by law. The commission shall render an advisory opinion pursuant to written rules adopted by the commission. Section 6. Penalty. Any public officer, member of the general assembly, local government official or government employee who breaches the public trust for private gain and any person or entity inducing such breach shall be liable to the state or local jurisdiction for double the amount of the financial equivalent of any benefits obtained by such actions. The manner of recovery and additional penalties may be provided by law. III. Attorney Ethics RELEVANT PROVISIONS FROM THE CODE OF PROFESSIONAL RESPONSIBILITY Lawyers are governed, among other things, by a code of conduct for professional behavior that defines the nature and scope of their obligations to their clients, the tribunals in which they practice, and society in general. In 1983, the American Bar Association (ABA) produced a model code, which has now been substantially adapted in all states except California (which has its own similar code.) As part of their licensure, all attorneys agree to follow the Code of Professional Responsibility, and violations can be grounds for discipline, up to and including suspension and even disbarment. In Colorado, these rules are most commonly cited as Colo. RPC which is short for Colorado Rules of Professional Conduct. A few of the more pertinent rules are discussed below. The preamble to the Colo. RPC is expansive. It recognizes that lawyers act as representatives of clients, as officers of the court and as public citizens having a special responsibility for the quality of justice. As a representative of clients, the lawyer performs various functions, including those of advisor, advocate and evaluator. As an officer of the court, in a profession that is largely self-governing, the lawyer should use the law s procedures only for legitimate affairs and not to harass or intimidate others. The lawyer should demonstrate respect for the legal system and those who serve in it, including judges, other lawyers and public officials. At 8

the same time, a lawyer has a duty, when necessary, to fearlessly challenge the rectitude of official action and to uphold the legal process. As public citizens, lawyers should seek improvement of the law, access to the legal system, and the quality of service rendered by the profession. A lawyer should further the public s understanding and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend upon popular participation and support to maintain their authority. The preamble recognizes that while most of these objectives are usually harmonious, the very nature of law practice will sometimes create tension between conflicting responsibilities. In such cases, the framework of the rules offers principles for resolution of such conflicts. I. Confidentiality One of the major policies supported by the rules is to encourage citizens to seek legal advice and thereby heed their legal obligations. People are far more likely to do so, and to be more candid and forthcoming with their lawyers, when they know their communications will be private. This is the basis for the lawyer s obligations under the rules to maintain confidentiality of information, which is codified in Colo. RPC Rule 1.6, which states as follows: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to reveal the client s intention to commit a crime and the information necessary to prevent the crime; (3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer s services; (4) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client s commission of a crime or fraud in furtherance of which the client has used the lawyer s services; (5) to secure legal advice about the lawyer s compliance with these Rules, other law or a court order; (6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or 9

civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer s representation of the client; (7) to detect and resolve conflicts of interest arising from the lawyer s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information is not protected by the attorney-client privilege and its revelation is not reasonably likely to otherwise materially prejudice the client; or (8) to comply with other law or a court order. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. The commentary to this section makes it clear that the professional obligations of a lawyer of client confidentiality extend beyond related bodies of law, such as the attorney-client privilege and the work-product doctrine. Before looking closer at the professional conduct rule, it may help to understand these two related areas of law. a. The attorney-client privilege. The attorney-client privilege is probably the oldest testimonial privilege in our legal system. It can be traced all the way back to the Roman Empire, and its use was firmly established in English law as early as the 16th century. Drawing its rationale from concepts of honor, the privilege originally prohibited any kind of testimony by the attorney against the client. As the law evolved, and as exceptions were made, a more precise policy took form, namely that the privilege should guarantee that one who seeks advice or aid from a lawyer should be completely free of any fear that personal secrets disclosed to the lawyer will be uncovered as a result of that very consultation. As noted above, the underlying principle of the privilege is to provide for sound legal advice and advocacy. The idea is that when protected by the privilege, the client may be more willing to communicate to counsel things that might otherwise be suppressed. In the absence of such a privilege, clients would be more likely to lie to their own lawyers, or to omit details that might actually help their case. With certain exceptions, the attorney may neither be compelled to nor may he or she voluntarily disclose matters relayed in confidence by the client for the purpose of seeking legal counsel. Likewise, the client may not be compelled to testify regarding matters communicated to the lawyer for the purpose of seeking legal counsel. Specifically: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4) made in 10

confidence (5) by the client, (6) which were not made for the purpose of committing a future crime or tort (7) are at his [or her] instance permanently protected (8) from disclosure by [the client] or by the legal adviser, (9) unless the protection is waived by the client. Each of these prongs has been the subject, at one time or another, of substantial litigation. Just as an example, a person who discusses a legal matter with his or her lawyer in the presence of an independent third party, who is not employed by the lawyer or the lawyer s firm, may be held to have waived the privilege since the third party is not bound by the attorney client relationship, provided that the third party is not fulfilling a role that furthers the lawyer s representation. b. The work-product doctrine. The so-called work-product doctrine is a more recent development in law than the attorneyclient privilege. It was first recognized in the Supreme Court case of Hickman v. Taylor, 329 U.S. 495 (1947), and was later encoded in federal and state rules of procedure. This is due in part to modern discovery rules. Under the work-product doctrine, tangible material or its intangible equivalent that is collected or prepared in anticipation of litigation is generally not discoverable, unless the party seeking to obtain the information is unable to obtain the information without undue hardship. The classic example is where one attorney privately interviews a witness (other than his or her client), who then skips the country or goes into hiding. In these kinds of cases, a court may allow the other party access to information gained in the interview, though even then, the court may redact such portions of the interview that contain the mental impressions of the interviewing lawyer. The work-product doctrine is wider than the attorney client privilege. Unlike the attorney client privilege, which includes only communications between an attorney and the client, workproduct includes materials prepared by persons other than the attorney. The materials may have been prepared by virtually anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case. On the other hand, memoranda, briefs, communications... other writings prepared by a lawyer for his/her own use in representing a client, mental impressions, conclusions, opinions, or legal theories are never discoverable by an opposing party. The Rules of Professional Responsibility do not necessarily bar information from coming into the possession of an opponent or the court, but they do impose upon the attorney an even higher obligation than the privilege or the work-product doctrine. They are not restricted to situations where a lawyer may be compelled to produce evidence concerning a client and they include any sensitive information relating to representation, regardless of the source, gained by the attorney in the course of representation. II. Candor to the Tribunal 11

Colo. RPC Rule 3.3 sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. While a lawyer has an obligation to present a client s interests with persuasive force and to maintain confidences of the client, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false. Specifically, the rule provides: (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) 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; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. The commentary to this section elaborates on various categories of conduct. a. Representations by a lawyer. An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, since litigation documents ordinarily present assertions by the client, or by someone on the client s behalf, and 12

not assertions by the lawyer. However, an assertion purporting to be on the lawyer s own knowledge, such as an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. In addition, there are circumstances where failure to make a disclosure may be viewed as the equivalent of an affirmative misrepresentation. b. Legal argument. Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law. Indeed, there is a duty to act as a persuasive advocate. However, a lawyer must recognize the existence of pertinent legal authorities when aware of them. Lawyers are free, of course, to argue that contrary authority is distinguishable or that favorable authority should be extended to the case at hand or even that the reasoning of a case is unsound and should not be followed. c. Offering evidence. Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client s wishes. This duty is premised on the lawyer s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. As a matter of course, a lawyer does not violate this Rule if the lawyer offers the evidence for the very purpose of establishing its falsity. If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false. The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, based on the fundamental right of an accused to testify, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer s knowledge that evidence is false, however, can be inferred from the circumstances. Thus, although a lawyer, acting as an advocate, should always resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood. 13

Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it does permit the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer s ability to discriminate in the quality of evidence and thus impair the lawyer s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client s decision to testify. d. Remedial measures. Sometimes, having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer s direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate s proper course is to remonstrate with the client confidentially, advise the client of the lawyer s duty of candor to the tribunal and seek the client s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. The disclosure of a client s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperates in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer s advice to reveal the false evidence and insist that the lawyer keep silent. Thus, the client could in effect coerce the lawyer into being a party to fraud on the court. e. Preserving Integrity of Adjudicative Process. Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires 14

a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding. f. Duration of Obligation. A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. Ordinarily, a proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for filing for an appeal has passed without an appeal being taken g. Ex Parte Proceedings. Ex parte proceedings are those in which only require one party to appear before the court. Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. h. Withdrawal. Normally, a lawyer s compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer s disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer s compliance with this Rule s duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. In connection with a request for permission to withdraw that is premised on a client s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6. III. Fairness to Opposing Party and Counsel. In addition to the duties to a tribunal, a lawyer also has obligations of fairness to the opposing party, as set forth in Rule 3.4: A lawyer shall not: 15

(a) unlawfully obstruct another party s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client and the lawyer is not prohibited by other law from making such a request; and (2) the lawyer reasonably believes that the person s interests will not be adversely affected by refraining from giving such information. The commentary to this section recognizes that our adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. But fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. IV. Special Obligations of the Prosecution. Prosecutors have special ethical obligations that go beyond mere advocacy. As ministers of justice they have an ethical responsibility to see that defendants are accorded procedural justice, that guilt is decided on the basis of sufficient evidence and that special precautions are taken to prevent and address the conviction of innocent persons. A prosecutor s duty is to seek justice, not merely to convict. People v. Walker, 504 P.2d 1098 (Colo. 1972); People v. Drake, 16

841 P.2d 364 (Colo. App. 1992). Rule 3.8 addresses special ethical responsibilities of a prosecutor: The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused unless such comments are permitted under Rule 3.6(b) or 3.6(c), and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. (g) When a prosecutor knows of new, credible and material evidence creating a reasonable probability that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time: 17

(1) disclose that evidence to an appropriate court or prosecutorial authority, and (2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority (A) disclose the evidence to the defendant, and (B) if the defendant is not represented, move the court in which the defendant was convicted to appoint counsel to assist the defendant concerning the evidence. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted in a court in which the prosecutor exercises prosecutorial authority, of an offense that the defendant did not commit, the prosecutor shall take steps in the appropriate court, consistent with applicable law, to set aside the conviction. As both an ethical and constitutional matter, it is the duty of both the prosecution and the courts to see that no known evidence in the possession of the state which might tend to prove a defendant s innocence or to reduce the potential punishment is withheld from a defendant. People v. Walker, Id. Because of the weight and deference afforded to their office, prosecutors must be especially careful when engaging in any conduct or argument that would influence a jury to decide a case on anything other than the facts presented to it. People v. Elliston, 508 P.2d 379 (Colo. 1973). B. DISCOVERY OBLIGATIONS In criminal proceedings, the United States Supreme Court has recognized what might loosely be called the area of constitutionally guaranteed access to evidence. United States v. Valenzuela-Bernal, 458 U.S. 858, 867-68 (1982). This encompasses not merely the right of the accused to disclosures from the prosecution as required by the Due Process Clause as provided in Brady v. Maryland, 378 U.S. 83 (1963), but likewise the right of the accused to compel the testimony of witnesses on his behalf under the Compulsory Process Clause. Valenzuela-Bernal, 458 U.S. at 72. Instead of setting two constitutional courses, the Supreme Court has chosen to address the rights to due process and compulsory process under the same paradigm. Id. Generally, as discussed below, the right of the accused to access information held by others turns, for purposes of the Constitution, depends on whether the information is "favorable and material" to the accused. Id. In Colorado, Rule 16 of the Colorado Rules of Criminal Procedure creates an even broader right of the accused to access evidence pertaining to criminal charges. People v. Alberico, 817 P.2d 573 (Colo. App. 1991). Among other things, Crim. P. 16 operates to systematize the disclosure 18

process and eliminate the need for discovery requests, thereby preventing the possible loss of discovery rights by the accused. Alberico, 817 P.2d at 574-75. The right of the accused to access evidence is broader still, and it includes such elements as the right to notice of the true nature of the charges; see Henderson v. Morgan, 426 U.S. 637 (1976); the opportunity in some cases for a preliminary hearing and a transcript for trial preparation; see Crim. P. 5(a)(4); Crim. P. 7(h); Harris v. District Court, 843 P.2d 1316 (Colo. 1993); the right to demand governmental records through the Colorado Open Records Act; see C.R.S. section 24-72-201, et seq.; and, in cases involving the charge of intoxicated driving, procedural guarantees stemming from license revocation proceedings, including the right to a hearing and transcript of such proceedings; see C.R.S. section 42-4-126. This section deals primarily with disclosure obligations of the prosecution as provided by due process and Crim. P. 16(I), as well as with the limited requirement of disclosures from the accused as provided by Crim. P. 16(II). I. The prosecution s duty to disclose evidence. The Due Process Clause prohibits the prosecution from concealing evidence under its possession or control that would be favorable to the accused. Brady v. Maryland, 378 U.S. 83 (1963). Suppression by the prosecution of evidence favorable to an accused violates due process if "the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Exculpatory evidence for purposes of Brady includes not only substantive evidence, but also evidence that may impeach the credibility of the government's witnesses. United States v. Bagley, 476 U.S. 667 (1985); In re Attorney C., 47 P.3d 1167 (Colo. 2002). After all, there are many cases in which the credibility of witnesses is the decisive factor. Technically, Brady did not create a constitutional right to discovery. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). For instance, Brady did not require the prosecution to disclose favorable evidence without a request, nor did Brady require the prosecution to disclose information that might be damning to the accused. Id. Yet, Brady and its progeny have led to state rules of criminal procedure that incorporate the Brady rule and which broaden the rights of the accused to create a system in which the accused is, indeed, entitled to discovery as of right. In Colorado, the Brady rule is incorporated into Crim. P. 16(I)(a)(2). Moreover, other parts of Crim. P. 16 oblige the prosecution to make available to the defense numerous types of evidence under the government's possession and control, regardless whether the evidence would be favorable to the defense. As provided in Crim. P. 16(I)(a)(1) the government must make available for inspection or duplication all of the following: (I) Police, arrest and crime or offense reports, including statements of all witnesses; 19

(II) With consent of the judge supervising the grand jury, all transcripts of grand jury testimony and all tangible evidence presented to the grand jury in connection with the case; (III) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons; (IV) Any books, papers, documents, photographs or tangible objects held as evidence in connection with the case; (V) Any record of prior criminal convictions of the accused, any codefendant or any person the prosecuting attorney intends to call as a witness in the case; (VI) All tapes and transcripts of any electronic surveillance (including wiretaps) of conversations involving the accused, any codefendant or witness in the case; (VII) A written list of the names and addresses of the witnesses then known to the district attorney whom he or she intends to call at trial; (VIII) Any written or recorded statements of the accused or of a codefendant, and the substance of any oral statements made to the police or prosecution by the accused or by a codefendant, if the trial is to be a joint one. Colorado's Crim. P. 16 is designed to reduce the chance of discovery failures by requiring automatic disclosure, without need of motions to the court. People v. Alberico, 817 P.2d 573 (Colo. App. 1991). Rule 16(I)(a)(1) and (2) require the prosecution to make available those discoverable materials within its "possession or control." Section 16(I)(b)(4) provides that the prosecution shall ensure that the flow of information shall be maintained between the prosecution's "various investigative personnel," and that information held by such investigators shall be deemed within the prosecution's possession or control. As such, the prosecution may be liable for failure to disclose discoverable material even if lawyers for the prosecution were not actually aware of information held by police officers. Kyles v. Whitely, 514 U.S. 419 (1995); Ortega v. People, 426 P.2d 180 (1967); People v. Corson, 2013 COA 4, 25. In rejecting an alternative rule, the Supreme Court observed that "any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials." Kyles, 514 U.S. at 438. In addition, upon a request by the defense, Crim. P. 16(I)(c)(1) directs the prosecution to "use diligent good faith efforts" to obtain discoverable information held by government offices other than police or investigative agencies. If such efforts by the prosecution are unsuccessful, the court shall issue suitable subpoenas or orders to cause such disclosures, if the other governmental personnel are subject to the jurisdiction of the court. Crim. P. 16(I)(c)(1). Parties 20