Prosecutor’s Duty is Substantial Justice

On May 9, 2019, the ABA released Formal Opinion 486 clarifying a prosecutor’s duties under Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) when entering into plea bargains with persons accused of misdemeanors.  According to the Opinion, prosecutors are duty bound to each charge incident to a plea has an adequate foundation.  They must make sure the accused is informed of his/her right to counsel and the procedure for obtaining counsel.  Prosecutors are not permitted in plea negotiations to jeopardize the accused’s ability to obtain counsel.  Nor can they offer pleas on terms that knowingly misrepresent the consequences of acceptance of a plea. And they are not permitted to pressure or improperly induce an accused to accept a plea.

The Opinion notes that a prosecutor’s integrity is essential to the administration of criminal justice.  A prosecutor has the responsibility of a minister of justice and not just as an advocate.  The primary duty is to see that justice is done and not merely to convict.  This is because the prosecutor represents the sovereign. Therefore, he/she should use restraint in the discretionary exercise of governmental power.  During trial, a prosecutor makes decisions normally made by an individual client.  Accordingly, those affecting the public interest should be fair to all.  Moreover, in the system of criminal justice, the accused is to be given the benefit of all reasonable doubts.

Misdemeanors make up about 80% of all criminal prosecutions. Estimates are that prosecutions have doubled since 1972.  “A misdemeanor conviction can lead to denial of employment, expulsion from school, deportation, denial of a professional license, and loss of eligibility for a wide range of public services including food assistance, public housing, health care, and federal student loans.” Plea bargaining has become an essential component of the administration of justice.  It is, therefore, imperative that there “be fairness in the securing of an agreement between the accused and the prosecutor.” Because of the vast increase in misdemeanor prosecutions, there is a tendency toward speedy dispositions at the expense of fairness of the result.

Conduct that would violate the Rules includes:

  1. Entering into plea negotiation before explaining the right to counsel;
  2. Using delay or threatening a harsher sentence to dissuade the accused from invoking the right to counsel;
  3. A requirement that accused persons, gathering en masse into the courtroom, must tell the clerk how they intend to plead;
  4. Using forms to obtain waivers of the right to counsel and other rights as a condition of negotiating a plea or entering into plea negotiations without ensuring that the accused understands his/her rights being waived;
  5. Permitting investigators to act as prosecutors and negotiate pleas;
  6. Advising the accused of the right to counsel but failing to provide a process for the accused to exercise the right to retain counsel or waive counsel prior to plea negotiation;
  7. Failing to inform indigent clients of their right to request a waiver of court fees associated with court-appointed counsel.

Rule 3.8(a) prohibits a prosecutor from filing a charge that is not supported by probable cause. A prosecutor’s workload that is too heavy to permit independent assessment of each charge and supervise other state actors responsible for the case may not be providing competent representation as Rule 1.1 requires or diligent representation as Rule 1.3 requires. A supervising prosecutor is duty bound to establishing policies, procedures and practices and methods of monitoring prosecutors and other state actors such that there is reasonable assurance of compliance with the prosecutor’s ethical obligations.


Pill Mill Defense Attorney’s Conflict Is Not Waivable

On March 1, 2018, attorney Wesley Page of Flaherty, Sensabaugh Bonasso, PLLC (“Flaherty”) agreed to defend William Earley, D.O. on indictments of violations of the Controlled Substances Act as employees and/or operators of the HOPE Clinic in West Virginia.  Dr. Early and 12 other physicians were indicted for seeing patients on a cash-only basis and prescribing oxycodone and other prescription pain medications while refusing to accept insurance.

On May 31, 2018, attorney Salem Smith of Flaherty, Sensabaugh Bonasso, PLLC was retained to represent Dr. Chad Turner in a potential medical malpractice suit contemplated to be filed against him by the estate of a former Hope Clinic patient.  As a former Hope Clinic physician, Dr. Turner was scheduled to testify against Dr. Early in the criminal proceeding.  According to the U.S. Attorney, Dr. Turner’s testimony was expected to directly inculpate Dr. Early.

When the U.S. Attorney brought this conflict to both Messrs. Page’s and Smith’s attention, they both said they performed the requisite conflicts checks and did not believe that a conflict existed.  They indicated that Dr. Turner signed a conflict waiver and Mr. Early waived the conflict orally.

Believing there was a conflict that could affect the integrity of the prosecution, the U.S. Attorney filed a Notice with the U.S. District Court for the Southern District of West Virginia, Beckley Division.  At hearings on the issue, the U.S. Attorney said the Flaherty firm’s dual representation created an impermissible conflict under Rule 1.7 of the West Virginia Rules of Professional Conduct.  Comment [6] prohibits an attorney from cross-examining a current client who appears as a witness in a lawsuit where the testimony is damaging to another current client.  Counsel for Flaherty countered that Flaherty’s representation of Dr. Turner ended by June 28, with no lawsuit being filed against him.  The criminal trial against Dr. Early was scheduled for August.

Because Dr. Turner is a former client, Flaherty’s counsel analyzed the conflict under Rule 1.9, which permits the cross-examination of a former client.  The U.S. Attorney countered that the conflict is analyzed at the time the conflict arises, not at the time a motion to disqualify is filed.  The U.S. Attorney indicated that Flaherty has the burden to show that the physicians waived the conflict with informed consent so as to defeat a motion to disqualify.  Flaherty countered that, as the filer of the motion, the U.S. Attorney has the burden to prove disqualification should occur.  Moreover, civil cases on disqualification cannot stand in a criminal case where a defendant has a 6th Amendment right to counsel of his choice.

The Court ruled that when the Flaherty firm began representing Dr. Turner on May 31, 2018, the firm had a conflict with its current client.  Flaherty knew as early as March 2018 that Dr. Turner was to be a witness on behalf of the United States and would give adverse testimony against Dr. Early.  The Court ruled that Rule 1.9 was inapplicable.  Rule 1.7 required not only that Dr. Turner give informed consent in writing, but that Dr. Early, who was a Flaherty client first, also give informed consent in writing.  There was no evidence that this had occurred.

There was a significant risk, the Court ruled, that Dr. Early’s representation would be materially limited by the lawyer’s responsibility to another current client. Because Mr. Page would have to cross-examine Dr. Turner, which would require Mr. Page to attempt to impeach Dr. Turner’s credibility at trial to protect Dr. Early’s position, the conflict was not waivable.

The Court ruled that the presumption of prejudice to the client had not been overcome.  It noted the Court had the duty to ensure that criminal trials are conducted within the ethical standards of the profession.  And the United States had the duty to ensure the integrity of the prosecution.  Since neither of those could occur if Flaherty remained as counsel, it disqualified the firm from further representing Dr. Early.