For the Defense - Vol. 6, Issue 1 - 13

such issues, however. Reversing convictions is not
the disciplinary system's job. Therefore, if the claim is
being litigated on direct appeal or collateral review,
we will dismiss the complaint and await the outcome.
But " [t]he absence of a court finding on the issue of
prosecutorial misconduct has no bearing on whether
our investigation proceeds when there has been
an acquittal, a dismissal of charges, a vacatur of the
conviction or nolle prosequi by the prosecutor's
office (such as by a Conviction Integrity Unit), or
an exoneration. " Further, we recognize that some
disciplinary violations, such as some instances of
misconduct in the grand jury, at a preliminary hearing,
or in a case that is resolved by guilty plea, are not subject
to appellate review. Therefore, we will investigate
allegations of that kind of misconduct despite the lack
of a court ruling.

At its January meeting, the Disciplinary Board
changed our four-year staleness rule, D.Bd. Rules
§ 85.10, to add a two-year window of time after a court
finding of misconduct in which an investigation can
be opened even if more than four years have elapsed
since the conduct. Previously, the staleness rule tolled
the four-year period when litigation was pending that
resulted in a finding of civil fraud, ineffective assistance
of counsel, or prosecutorial misconduct. Among other
problems with the tolling rule, we found that in the
context of criminal cases where ineffectiveness or
prosecutorial misconduct may come to light only after
years of appellate review, the four-year period may
have expired before a ruling even when the claim was
pursued diligently. The change should enable us to
pursue cases where the violation did not come to light
until years after the misconduct.
All requests to dismiss a complaint alleging prosecutorial
misconduct, unless dismissed in our intake process, must
be approved by Chief Disciplinary Counsel. ODC receives
about 4,000 complaints per year and dismisses more than
95 percent of them, often before even informing the
attorney that there has been a complaint. The Counsel
in Charge of the District Office reviews and approves
all requests to dismiss a complaint.18 The Board and
Supreme Court impose discipline in about 150 cases per
year, about half of those private discipline - an informal
admonition or private reprimand - and half public (a
public reprimand, suspension or disbarment). Chief
Disciplinary Counsel - me - must approve all decisions
to seek sanctions,19 but I don't review all those dismissals.
At least for the time being, however, I will review requests
to dismiss an investigation of a criminal prosecutor.20
I am assigning myself as co-counsel on all prosecutorial
misconduct cases in order to emphasize our seriousness
to the public, both complainants and respondents.

We are reviewing court opinions weekly to stay
abreast of court findings of misconduct and, where
appropriate, opening cases on our own initiative.
The Disciplinary Board is in the process of upgrading
its website to provide summaries of private discipline
cases going back to 2016. The private discipline
summaries will sanitize the facts to avoid breaching
confidentiality, but enough description will be provided
to notify practitioners what kinds of misconduct (by
any lawyer but including prosecutors) yield informal
admonitions and private reprimands.
We are engaging in outreach, such as this article.
In addition, I have made presentations to public
defenders throughout the Commonwealth, the
Allegheny County District Attorney's office, and
the Federal Criminal Practice Subcommittee of the
Allegheny County Bar Association (which includes
defense lawyers, prosecutors, and judges). We will
continue to pursue these educational efforts with
affected stakeholders.

What You Can Do
Under our disciplinary system, all attorneys should
report misconduct by other attorneys. This imperative
becomes mandatory when the misconduct " raises
a substantial question as to that lawyer's honesty,
trustworthiness or fitness as a lawyer. " 21 I realize that
there are reasons why both defendants and their
attorneys hesitate to report prosecutorial misconduct.
When a case is ongoing, they may fear retaliation that
will worsen the client's plight.22 Similarly, the attorney
may fear that the prosecutor or her office may treat
future clients harshly.
My hope is that defense lawyers and prosecutor's
offices will view disciplinary complaints and
investigations as an important and necessary part of
our profession's self-regulation and efforts to improve
our legal system. But attorneys should realize that
besides filing a complaint, they or their clients can
report prosecutorial misconduct by bringing to ODC's
attention court rulings, whether published or not,
transcripts of oral rulings, and news articles reporting
misconduct. We then can open an investigation on
our own initiative.23 The downside with this avenue,
however, is that if the attorney or the defendant
is not the complainant, they have no right to learn
of the matter's disposition if it is dismissed or if it
results in private discipline since our proceedings are
confidential. The only exception is if the investigation
results in public discipline - i.e., public reprimands,
suspension or disbarment.24

Vol. 6, Issue 1 l For The Defense

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For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1
