Proposed ethics rule for prosecutors gets nod from State Bar Board of Governors

March 2, 2009 - A prosecutor is already ethically obligated not to prosecute a charge known to lack probable cause. But a proposed amendment would expand this duty to those times a prosecutor learns that a convicted defendant likely did not commit the charged offense.

The State Bar Board of Governors voted during its Feb. 27 meeting to endorse the spirit of Petition 08-24, which would require a prosecutor to promptly disclose “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.” The petition would amend  Supreme Court Rule 20:3.8 containing the special responsibilities of prosecutors.

However, governors called for adoption of language in the American Bar Association’s Model Rule that would direct prosecutors to “undertake further investigation, or make reasonable efforts to cause an investigation” when they receive exonerating evidence. The petition pending before the Wisconsin Supreme Court only recommends prosecutors “request further investigation.” 

The lesser duty was to accommodate those prosecutors who lack investigative resources, according to the Wisconsin District Attorneys Association, sponsor of Petition 08-24. But Gwen Connolly, the board liaison to the Professional Ethics Committee, relayed the ethics committee’s belief that prosecutors enjoy a special relationship with law enforcement that may make an investigation more likely. And if police are not responsive, the prosecutor is equipped to get a court order, she said.   

A public hearing on this rule is scheduled for Monday, March 9, 2009, 9:45 a.m., Supreme Court Hearing Room, State Capitol, Madison.

The Board of Governors took action on other issues.

• Opposed efforts to reduce administrative hearings for state agency complaints. The governors opposed elimination of administrative hearings on probable cause for many types of complaints made to state agencies, including allegations of discrimination in employment, housing, and public accommodations. The governors learned that the reduction is intended to save Wisconsin government money, but that it would put at risk due process rights to a hearing and an opportunity to be heard. As of the time the governors voted, a measure to reduce hearings before administrative law judges was contained in the state budget bill AB 75.
  
• Encouraged the Attorney General to appeal the Seifert decision. A federal district judge held in Siefert v. Alexander on Feb. 17 that Wisconsin Supreme Court Rules   60.06(2)(b)1, 60.06(4) and 60.06(2)(b)4  regulating election activities of judges violate the First Amendment. The governors voted to send a letter to the state Attorney General urging him to appeal this decision, although several members stressed that they supported such a move in the interest of achieving finality and clarity in this matter and that the letter should not be construed as an endorsement of the state's position in the case.
  
• Authorized the Alternative Dispute Resolution Section to file an amicus curiae brief in West Central Education Ass’n v. Baldwin-Woodville Area School Dist. This case, pending before the Wisconsin Supreme Court, presents the question of whether a court may vacate an arbitration award because it disagrees with the arbitrator’s determination of a filed grievance’s timeliness. The ADR Section fears that permitting courts to vacate arbitration awards will encourage parties to keep seeking judicial review of arbitration decisions, destroying the goal of alternative dispute resolution.  
  
• Adopted policy recommendations regarding State Bar section lobbying. Michael Rosenberg, chair of the Legislative Oversight Committee, explained that some member sections do not typically lobby. Supreme Court Rule 10.05(4)(e) outlines what criteria a section must meet before they can lobby through the State Bar. The proposed policies would establish a timeframe and fee schedule within which a non-lobbying section can convert to lobbying and satisfy the Supreme Court requirements.
  
• Approved Keller dues reduction for fiscal year 2010. The U.S. Supreme Court held in Keller v. State Bar of California that a state bar may not use compulsory dues of any member who objects to political or ideological activities which are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services. Based on an analysis of State Bar business determining the extent of “political” or “ideological” activity for Fiscal Year 2008, the governors voted for a $7.75 reduction per dues statement. The Keller reduction is an option on the State Bar’s yearly dues and assessments statements mailed in the spring and due on July 1.
  
• Adopted a State Bar whistleblower policy developed by the Finance Committee. Under this new policy, the State Bar aims to encourage and enable employees, officers, board members, consultants, and volunteers to report suspected fraudulent or dishonest use of the organization’s resources or property. The policy directs individuals to the proper authority to report their beliefs of impropriety and pledges to protect whistleblowers from retaliation.
  
• Honored a century of the Office of Family Court Commissioner. The governors voted for a resolution honoring the 100th anniversary of the Office of Family Court Commissioner.

By Alex De Grand, Legal Writer, State Bar of Wisconsin