Q&A Lawyer Liability and Ethics: Prosecutors Do Not Have Higher Ethical Standards for Personal Conduct

by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association 

Last month this column discussed a disciplinary proceeding before the Supreme Court of Kansas arising out of a parking lot accident between a golf cart driven by Lawyer and an unoccupied pickup truck.  Lawyer failed to report the accident, then lied to the police when they investigated the hit and run.  Ultimately, Lawyer paid for the damage outside of the criminal or civil legal system.  But the matter found its way to the Kansas State Bar’s Office of Disciplinary Administrator (ODA).

As was explained in more detail in last month’s column, the Kansas Supreme Court at oral argument did not seem pleased that such a minor, non-legal incident made it before the highest court in the state.  If you have nothing better to do, you can look the oral argument up on YouTube by searching “Kansas Supreme Court 125,500.”

After last month’s column, on February 10, 2023, the court issued its opinion.  The court took the unusual step of rejecting the parties’ joint recommendation of a 90-day suspension of Lawyer’s license with the suspension being stayed while Lawyer was placed on probation for one year.  Instead, the Supreme Court of Kansas imposed a lesser sanction of censure.  The court declined to impose the agreed-to suspension because the court rejected the justification for the suspension advanced by both parties—the fact that Lawyer was an assistant county prosecutor at the time of his misconduct and prosecutors are held to a higher ethical standard than other lawyers.  While prosecutors have heightened duties in some circumstances, those duties are not always present.

ER 3.8 imposes “special” responsibilities on prosecutors since certain tasks are unique to the prosecutor’s office.  Prosecutors are not merely advocates but are also viewed as “a minister of justice,” obligated to see that a criminal defendant receives procedural justice and that guilt is decided on the basis of sufficient evidence.  Or as it is sometimes stated, prosecutors are obligated to seek justice, not merely convictions.

In its opinion, the Kansas court found all the “heightened prosecutorial duty” cases cited by the parties to be factually distinguishable because the prosecutors in those cases engaged in misconduct while acting in the scope of their official prosecutorial duties.  The court rejected the ODA’s argument that ER 3.8 applied to Lawyer because his misconduct involved misrepresentations made to law enforcement during the investigation of the parking lot hit and run.  The court found that regardless of who Lawyer made the misrepresentations to, there was no dispute that his misconduct occurred in his private life, outside the scope of his official prosecutorial duties.

The court’s opinion was unsurprising given the multiple questions from the bench at oral argument expressing concern about setting a bad precedent in the interpretation of ER 3.8.  Of particular concern was the lack of notice to prosecutors in either the text or comments to ER 3.8 that the heightened standards of conduct set by the rule would apply to conduct outside of a prosecutor’s official duties.

So congratulations to all the prosecutors in the Sunflower State, who have just learned that if they lie to the police when they are off the clock, they will face no greater punishment than any other lawyer.  Just watch where you are going when parking those golf carts.

About Joseph. A. Brophy

Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jhkmlaw.com.

The original article appeared in the March 2023 issue of Maricopa Lawyer and can be viewed here: