Establishes guidelines of professional conduct for activities by district attorneys

Section 708(1) prohibits a district attorney from making certain types of extrajudicial statements which are likely to prejudice materially a criminal proceeding and enumerates which extrajudicial statements are permitted;

Section 708(2) provides that district attorneys shall make timely disclosure of all BRADY material and shall exercise reasonable care to prevent their subordinates from making a prohibited extrajudicial statement;

Section 708(3) establishes a duty of prosecutorial care and provides that a district attorney shall not intentionally avoid pursuit of certain evidence, fabricate evidence or intentionally mislead a defendant or potential witness;

Section 708(4) empowers the Temporary State Commission of Investigation to conduct investigations in connection with any alleged violation of the code of conduct;

Section 708(5) provides that a district attorney who violates any provision of the code is guilty of misconduct and in addition to any prescribed punishment, he or she is liable for treble damages in a civil action;

Section 708 (6) provides that a district attorney or other public prosecutor shall resign his or her office when he or she becomes a candidate for another office;

Section 708(7) provides that this section shall apply to all district attorneys and public prosecutors, including those in counties wholly contained within a city.

Effects of present law which this bill would alter

Present rules for district attorneys are codified in the Lawyers' Code of Professional Responsibility. Attorneys who violate these ethical rules are subject to disciplinary action by the Appellate Division pursuant to section 90 of the Judiciary Law.

According to Disciplinary Rule 7-103(B) public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he or she knows or it is obvious that the charges are not supported by probable cause.

A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant who has no counsel, of the existence of evidence, known to-the prosecutor or other government lawyer, that tends to negate the

guilt of the accused, mitigate the degree of the offense or reduce the punishment.

According to DR 7-107A lawyer participating in or associated with a criminal or civil matter, or associated in a law firm or government agency with a lawyer participating in or associated with a criminal or civil matter, shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter.

According to the Disciplinary Rules an attorney may state the following in a criminal matter:

7. In a criminal case: a. The identity, age, residence, occupation and family status of the accused. b. If the accused has not been apprehended, information necessary to aid in apprehension of that person. c. The fact, time and place of arrest, resistance, pursuit, use of weapons, and a description of physical evidence seized, other than as contained only in a confession, admission, or statement. d. The identity of investigating and arresting officers or agencies and the length of the investigation.

Justification

The conduct of New York state's sixty-two district attorneys and their assistants are governed by the Lawyers' Code of Professional Responsibility, case law precedents, constitutional and statutory requirements. When a district attorney is accused of violating these standards of professional conduct, he or she is considered no . differently than any of the thousands of private attorneys practicing law in New York State.

The consequence of this uniform treatment is that the same grievance committees that are ostensibly charged, for example, with investigating the alleged withholding of Brady material by a public prosecutor are also charged with investigating complaints lodged by citizens against private attorneys regarding a wide variety of alleged misconduct. Given the immense prosecutorial powers which district attorneys possess and their status as constitutional officers, their conduct should be regulated under New York State law rather than by the New York State Bar Association.

The New York State Commission on Judicial Conduct, an independent disciplinary body established over twenty years ago, oversees the ethical conduct and behavior of New York State's 3,300 judges. There is, however, no equivalent body which is singularly charged with supervising the conduct of New York State's district attorneys and their assistant prosecutors. This bill, accordingly, eliminates this incongruity by establishing a parallel oversight mechanism to guide the professional conduct of public prosecutors and to provide for appropriate disciplinary action.

This bill does not impose any additional obligations on district attorneys. It simply codifies several existing obligations under one section of law and grants the Temporary State Commission of Investigation (TSCI) the authority to pursue alleged violations. The

TSCI, as the public body already charged with investigating allegations of criminal activity or misconduct committed by public officials, is the perfect agency to oversee the conduct of the state's district attorneys and public prosecutors.

Prior legislative history

S.2500 of 2007

02/06/07 Referred to Local Government

Fiscal implications for state and local governments

Unknown at the present time.

Effective date

This act shall take effect on the 1st of January next succeeding the date on which it shall have become law.