Proposed changes to the Ethics Rules applicable to all lawyers licensed to practice in the State of Texas have been made by the Texas Supreme Court. You can read them in their entirety at the Texas Supreme Court’s website.  

Earlier this month, the Court forwarded its proposed changes to the State Bar of Texas for its consideration; by year’s end, the final version of the Amendments should be in effect.  Here’s a couple of things to ponder in all this:

1.  It’s not the Court of Criminal Appeals Deciding the Ethical Rules for Prosecutors. 

The ethical parameters of prosecutors are defined not by the highest criminal court in the state, the Court of Criminal Appeals, but instead by the Texas Supreme Court, as part of its rule-making authority. For some, this may be good news, given the recent hand slap that CCA’s Chief Justice Sharon Keller received from the Judicial Commission. 

2.  Comments to Rules aren’t the Same as a Disciplinary Rule Itself.  First, There’s Little Change to the Rule for Prosecutors. 

The main rule pertaining to prosecutors under the Texas Disciplinary Rules of Professional Conduct is Rule 3.09, “Special Responsibilities of a Prosecutor.” 

Here, things like it’s wrong to pursue a prosecution without probable cause and it’s wrong to fail in promptly and timely disclosing evidence to the defense that tends to show innocence or to mitigate guilty.  Sounds like this stuff should be so clear that a district attorney wouldn’t need this to be in writing (and subject to his/her loss of license for their violation) but we’ve seen how wrong that assumption has proven to be here in Texas.

Consider these examples: 

• in June 2010, DA Stephanie McFarland caught withholding evidence a second time (she’d already been caught once);
• in January 2010, Dallas DA was discovered to have told a police officer who to point out as the culprit when he took the stand; and
• in December 2009, a federal judge freed  Yolanda Madden after she had spent four years behind bars after it was shown that the district attorney had failed to disclose exculpatory evidence in her case. 
• There’s more of course — just click over on the “DA Watch” section of this blog as well as my Blogger blog. 

3.  While Comments Do Give Guidance, They are Specifically Not the Basis for Complaint

Elsewhere in the 2010 Amendments, the Texas Supreme Court also addresses prosecutors in Comment 16 to Rule 3.03, giving an example in an attorney’s duty to protect the integrity of the judicial system, “… a prosecutor’s obligation in a criminal case extends for the life of a wrongfully convicted criminal defendant, in that remedial measures could remove a wrongful conviction from the defendant’s record.”

Now, Houston Chronicle’s Rick Casey recently suggested that the new Rule changes mean prosecutors will be required to apply this Comment’s example to an expert witness who learned that his testimony was wrong — that the district attorney would be ethically required to move forward this new revelation. 

In a perfect world, maybe, but for a crafty district attorney?  Probably NOT. 

You’d think that they would do that just because it’s the right thing to do.  Right?  However, not only do we KNOW that prosecutors don’t want to re-open cases and help defendants they’ve put behind bars (just read this blog) but there’s also the legality that a comment doesn’t carry the same legal weight as a rule. 

As you can read in the Preamble of the Texas Disciplinary Rules, which is left unchanged by the Amendments (see a redline version here), comments “… do not, however, add obligations to the rules and no disciplinary action may be taken for failure to conform to the Comments.”

So, while Mr. Casey makes a great point, and it may seem like form over substance, the comment cannot form the basis of an ethical violation under the New Rules, and there’s just not that much difference in the revised Big Rule, 3.09, to make any D.A. lose any sleep tonight.