drafted a mortgage that would be senior to any other Demman would

obtain on the premises of sale, are contentions

p. 90

p. 91

that Gordon is liable for damages caused by his negligent disregard of

Olfe’s instructions. The legal theory on which these allegations are
premised is well established:
It has generally been recognized that an attorney may be liable for all losses caused by
his failure to follow with reasonable promptness and care the explicit instructions of his
client. Moreover, an attorney’s honest belief that the instructions were not in the best
interests of his client provides no defense to a suit for malpractice. Note, Attorney
Malpractice, 63 Colum. L. Rev. 1292 (1963).

[The court held that Olfe did not need an expert witness to prove a
violation of the duty to follow her instructions. REVERSED.]

The Scope of the Client’s Autonomy

Here’s a riddle: Gordon did not follow Olfe’s instructions. Melinger
refused to follow Barnes’s instructions. Barnes lost. Olfe won. Why?
Was it simply because one action depended on the Sixth Amendment,
but state law governed the other? Or is the explanation the nature of
the decision? Both, actually.
Olfe’s employment of Gordon did not authorize him to make the
decision he did in the face of her contrary instruction. In the language
of Rule 1.2(a), the decision concerned “the objectives of
representation” — that is, how much she would receive for the house
and in what form — and belonged to her. Agency law would say the
same. But in Barnes, the objective was reversing the conviction. Under
the Sixth Amendment, the Court held, how to argue the appeal in order
to achieve that objective was a means decision that belonged to
Melinger.

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 If Olfe said only that she was willing to “take back a mortgage,”
could Gordon have accepted a second mortgage without informing
Olfe? No. Because the decision was Olfe’s, Gordon had a duty to explain
to her that she was getting a second mortgage and the risks it carried.
Rule 1.4(b).

D. TERMINATING THE RELATIONSHIP

The Rules describe the circumstances under which lawyers may

withdraw from a representation. Case law describes the client’s
authority to discharge a lawyer.

1. Termination by the Client

Clients, it is said, may fire their lawyers for any reason or no reason.
Harrill & Sutter, PLLC v. Kosin, 378 S.W.3d 135 (Ark. 2011) (“Attorney-
client contracts contain an implied provision that the client may
discharge the attorney

p. 91

p. 92

at any time, either with or without cause.”). On the other hand, laws that
protect employees against discrimination or retaliatory discharge also
protect employed lawyers.
Indigent criminal defendants cannot fire the lawyers appointed to
represent them, although for a good reason the court might assign a
new lawyer. Even a litigant with a retained lawyer may not be able to
change counsel if it will delay the trial. By then, the interests of others
— the courts, witnesses, the opponent — will be given substantial, even
decisive, weight. Courts also suspect that efforts to fire counsel may
be intended to delay the trial.

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 When a professional relationship ends, whether terminated by the
lawyer or the client or simply when the work is done, the client is
“presumptive[ly]” entitled to the lawyer’s “entire file on the represented
matter.” However, “narrow exceptions” will entitle the lawyer to keep
“firm documents intended for internal law office review and use.” Sage
Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP, 689 N.E.2d
879 (N.Y. 1997) (presenting this as the majority view, collecting cases,
and acknowledging that a valid lien may supersede the client’s right to
the file). Iowa Supreme Court Attorney Disciplinary Board v. Gottschalk,
729 N.W.2d 812 (Iowa 2007), also holds that the client is presumptively
entitled to the entire file, which it calls the majority view. It describes
the minority view as entitling the client only to the “end product,” which
includes final documents publicly available.

2. Termination by the Lawyer

The lawyer’s ability to terminate a professional relationship is

circumscribed by Rule 1.16, which tells us when a lawyer may or must
withdraw. Leaving a client without a good reason can be characterized
as abandonment, which is disloyal and has consequences. Consider
Augustson v. Linea Aerea Nacional-Chile, 76 F.3d 658 (5th Cir. 1996).
Plaintiff’s law firm requested and received permission to withdraw after
plaintiff rejected a settlement offer against the firm’s advice. The case
arose out of an air crash, and other clients of the law firm had accepted
the offer. With new counsel, the plaintiff got a substantially higher
settlement. The firm then sought a fee for its work. In Texas, whose law
applied, and elsewhere, a lawyer who abandons a client loses the right
to compensation. The firm cited the court’s permission to withdraw as
proof that it had not abandoned the client, but the Fifth Circuit rejected
this argument. The decision whether to settle belonged to the client,
not the law firm. Permission to withdraw merely reflected the court’s
evaluation of what was in the “best interests of the client” at the time,
not a determination that the firm acted correctly. In agreement is

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Lofton v. Fairmont Specialty Insurance Managers, 367 S.W.3d 593 (Ky.
2012).
Courts will allow lawyers to withdraw if a client is seriously
delinquent in paying fees. King v. NAIAD Inflatables of Newport, 11 A.3d
64 (R.I. 2010) (civil case).
p. 92

p. 93

3. Termination by Drift

Some representations end for reasons other than lawyers or clients

explicitly ending them. Many end because the work ends. But does the
end of the work always mean the end of the relationship? No. This can
be important. If the relationship is not truly over, the lawyer may have a
duty to continue to advise the client and protect its legal interests on
the subject of the work. Lama Holding Co. v. Shearman & Sterling, 758
F. Supp. 159 (S.D.N.Y. 1991) (denying motion to dismiss malpractice
claim where following completion of work, firm allegedly failed to
advise client of relevant tax law changes after promising to do so);
Barnes v. Turner, 606 S.E.2d 849 (Ga. 2004) (lawyer had duty to renew
client’s security interest five years after representation ended where
lawyer had not warned client of the need to do so in order to protect
client’s interest). Also, if a client is a current, not a former, client, the
stricter conflict-of-interest rules will govern the lawyer, as we see in
chapters 5 and 6.
Going rather far (perhaps too far) in finding a current client
relationship is Jones v. Rabanco, Ltd., 2006 WL 2237708 (W.D. Wash.
2006). A firm that had not done work for, or even communicated with, a
client for more than three years was deemed still to be its current
counsel because (a) it stored many files from the matter; (b) it had not
marked the matter closed in its own records; and (c) it was listed on
settlement documents to receive a copy of any notice to the client.

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Consequently, it was disqualified when it then appeared against the
client’s parent.

4. Episodic Clients

Lawyers might believe that a client is no longer a client if they are

doing no work for it at the moment and haven’t for a while. This is not
necessarily true. Courts recognize what we might call an episodic
client. A firm may have done a particular kind of work for a client —
trademark registration, for example — two or three times a year for the
past three years, a month each time. That can create a reasonable
client expectation that the professional relationship continues during
intervals when the firm is doing no work and an expectation (but not a
promise) of the firm’s availability the next time the client needs a
trademark registered. If I ask you, “Who’s your dentist?,” you might
answer, “Dr. Goodsmile,” even if you haven’t seen her in eight months,
because she’s the dentist you’ve seen the last three years when your
teeth needed care. She’s your dentist even when you’re not in the chair.
Clients can feel the same way about lawyers and courts will respect
that.
Obviously, this is a question of fact that looks at the frequency with
which the client has called on the firm and over what period of time.
RAK had served as patent counsel to Adobe intermittently between
2006 and February 2012. In July 2012, when RAK was doing no work
for Adobe, it

p. 93

p. 94

sued Adobe, which moved to disqualify RAK on the ground that RAK
was suing a current client. (That’s forbidden without informed consent.
See chapter 5B3.) Was Adobe a current client? The court said yes.

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 It is true that RAK would have been free to reject any Adobe request for further opinion
letters. RAK, however, had never refused work from Adobe in the past, which
strengthens the reasonableness of Adobe’s belief that RAK would take further work and
the relationship was ongoing. Moreover, RAK’s freedom to reject additional work from
Adobe is not dispositive. . . . The fact that [RAK] may freely choose to end the
relationship and refuse further business does not mean it is free to sue its client prior to
making it clear that the relationship is over. It is the law firm’s responsibility to ensure
there are no questions regarding the status of its current client relationships. It would
have been a simple enough task for RAK to notify Adobe that it would no longer be
available as opinion counsel.

Parallel Iron, LLC v. Adobe Sys., 2013 WL 789207 (D. Del. 2013).
Given the consequences, it makes good sense to clarify any
ambiguity. A firm could send a “Dear Former Client” letter saying that
“our representation of you on the X matter is now concluded and you
are now our former client.” (This assumes that the firm is not then
handling any other matter for the client.) When I suggest this liberating
option to lawyers, they don’t like it. They have a reason: “We want the
client to think of itself as our current client and us as its law firm. We
don’t want to antagonize it by appearing to fire it.” OK, but then you
have to choose. Another option is to include at the outset, in the
retainer agreement, a designated time that the relationship will end,
such as when the firm sends a bill marked “Final Statement.”

Self-Assessment Questions*

1. Lem Clarick represents Sheelah Boyd in a personal injury action. The

complaint seeks $3.5 million. Lem’s experience tells him that a jury
will award at least $2.8 million, probably more, but of course no one
can know for sure. Lem is working on a one-third contingency. Six
months before trial, the defendant offers $450,000. He tells Sheelah
and recommends that she reject the offer “because we’ll likely get
more than seven times that at trial. Maybe five times.” Sheelah says
she wants to accept the offer, which would net Lem a fee of

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 p. 97

III

Protecting the Attorney-Client

Relationship Against Outside
Interference

The theme of this chapter is the legal ethics equivalent of

espionage.
Ethics rules and case law protect the client-lawyer relationship
against spies, at least when the spies are other lawyers. That should
not surprise you given the many ways that the Rules protect clients
from their own lawyers. If we’re going to hammer home the sanctity of
the lawyer-client relationship, we should expect rules that prevent
adversaries from interfering with it. Exhibit One is Rule 4.2. It forbids a
lawyer to communicate with another lawyer’s client under certain
circumstances. This “no-contact” (or “anti-contact”) rule, examined in
part A, applies to lawyers in civil matters (both litigation and
transactional; see part A1) and criminal matters, including to
prosecutors, where an exception may swallow the rule (see part A2).
Prohibited contact with another lawyer’s client is not, however, the only
way in which an outsider may intercept confidential communications
or otherwise undermine a client-lawyer relationship. See part B.

A. COMMUNICATING WITH ANOTHER LAWYER’S CLIENTS

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Rule 4.2 says that “[i]n representing a client, a lawyer shall not
communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is authorized to do so
by law or a court order.”* The rule applies even if the “represented”
person is not the
p. 97

p. 98

opponent of the lawyer’s client, but, for example, a co-defendant or

another party to a transaction who shares most or even all of a client’s
objectives. The rule has quite a few conditions:

The communication must occur while a lawyer is herself

“representing a client” on the matter in which the contacted
person is represented. If she is not representing a client in the
matter, she may talk to the other lawyer’s client about it. This
allows a client to get a second opinion. Iowa Sup. Ct. Bd. of Prof’l
Ethics & Conduct v. Herrera, 626 N.W.2d 107 (Iowa 2001); Rule
4.2 cmt. [4].
Does Rule 4.2 restrain a party who happens to be a lawyer,
whether acting pro se or with counsel? Authorities are divided. In
re Lucas, 789 N.W.2d 73 (N.D. 2010), reviews the cases and
concludes that the rule should apply to a pro se lawyer, and by
implication a lawyer who is a represented party, “to prevent
lawyers from taking advantage of laypersons.” In re Steele, 181
N.E.3d 976 (Ind. 2022), and ABA Opinion 22-502 also say the rule
applies to pro se lawyers. But Restatement §99, comment e,
disagrees.
The communicating lawyer must know that the person with
whom she is communicating is represented on the subject of the
communication. Comment [8] to Rule 4.2 warns that knowledge

200
“may be inferred from the circumstances” and that a “lawyer
cannot evade the requirement . . . by closing eyes to the obvious.”
If a lawyer does not know that the contacted person is
represented, the rule does not impose a duty to find out.
Nevertheless, it makes sense to inquire because a tribunal might
later say that the lawyer did know or consciously avoided
knowledge, which can be the same as knowing.
Members of an uncertified class are not “represented” by counsel
for the named class members, so the lawyers on either side of
the matter may contact them consistent with rules on advertising
and solicitation unless the court orders otherwise. ABA Opinion
07-445.
The communicating lawyer is only forbidden to communicate
with a represented person on the “subject” of the representation.
So far as the rule goes, she may communicate about anything
else, like politics or sports. Rule 4.2 cmt. [4].
The prohibition does not apply if the other lawyer consents to the
communication or if it is “authorized . . . by law or a court order.”
A represented person may not waive the protection of this rule
without counsel’s consent. Iowa Supreme Court Attorney
Disciplinary Board v. Box, 715 N.W.2d 758 (Iowa 2006), collects
cases. And if a person claims

p. 98

p. 99

that his lawyer does consent, it’s best to get confirmation from
the lawyer directly. Highly paternalistic, don’t you think? Or is
there a good reason to require that a client get the advice of his
counsel before he can choose to forgo the rule’s protection?*

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 Forbidden is “communication.” Videotaping employees of a
represented company “going about their activities in what those
employees believe is the normal course” is allowed. Hill v. Shell Oil
Co., 209 F. Supp. 2d 876 (N.D. Ill. 2002) (not a violation to
videotape behavior of gas station attendants to gather evidence
of racial discrimination in their treatment of customers).
A violation can occur if a lawyer engages in forbidden
communication through a third party, like an investigator or
sometimes even the lawyer’s own client (but see the next two
paragraphs). Rule 8.4(a).

Clients are free to talk to each other. Clients may be able to get past
a problem when lawyers cannot. That can be a good thing. But
sometimes it is ill-advised because one client may be a skilled
negotiator or adept at learning the other client’s strategic or
confidential information.
How far can a lawyer go in aiding client-to-client communications?
Rule 4.2 comment [4] says “a lawyer is not prohibited from advising a
client concerning a communication that the client is legally entitled to
make.” “Advising” is not a precise term; nor is “assisting” in
Restatement §99(2) (rule “does not prohibit the lawyer from assisting
the client in otherwise proper communication by the lawyer’s client
with a represented nonclient”). ABA Opinion 11-461 concludes that “a
lawyer may give substantial assistance to a client regarding a
substantive communication with a represented adversary. That advice
could include, for example, the subjects or topics to be addressed,
issues to be raised and strategies to be used. Such advice may be
given regardless of who — the lawyer or the client — conceives of the
idea of having the communication.” The opinion cautions against
“overreaching,” as by “assisting the client in securing from the
represented person an enforceable obligation, disclosure of
confidential information, or admissions . . . without the opportunity to

202
seek the advice of counsel.” But then it allows that very assistance if
the lawyer first
advise[s] her client to encourage the other party to consult with counsel before entering
into obligations, making admissions or disclosing confidential information. If counsel
has drafted a proposed agreement for the client to deliver to her represented adversary
for execution, counsel should include

p. 99

p. 100

in such agreement conspicuous language on the signature page that warns the other
party to consult with his lawyer before signing the agreement.

The Competing Interests. What interests of a represented person

does this rule protect? It prevents a lawyer from

getting a damaging admission from the represented person;

learning a fact or getting a document that may be protected by
the attorney-client privilege or another rule and which she might
not learn or get if counsel were present;
learning the person’s true position in negotiation;
learning his strategy;
weakening the represented person’s resolve by casting doubt on
the strength of his position; and
driving a wedge between the represented person and his lawyer.

Countervailing interests that the rule may impede include the

interests in

informal and inexpensive access to information — interviews

rather than costly, formal discovery. If a deponent is an employee
of an adverse organization, her employer’s lawyer’s presence at
the deposition may be inhibiting;

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 facilitating compliance with rules (like Fed. R. Civ. P. 11) that
obligate lawyers to do factual investigations before filing
complaints or other papers; and
solving, prosecuting, and preventing crimes. Although the rule
does not bind the police or other law enforcement agents, it does
apply to prosecutors who direct their work.

1. Civil Matters

If the represented client is a biological person, there should be no

difficulty identifying her. See Inorganic Coatings v. Falberg, 926 F. Supp.
517 (E.D. Pa. 1995) (plaintiff’s lawyer disqualified after he accepted a
telephone call from a represented defendant prior to filing a complaint).
That’s not so easy if the represented person is a corporation, the
government, a partnership, or another legal entity. Take corporations.
Recall Upjohn (chapter 2B2). The Court wrote that communications of
Upjohn lawyers with Upjohn employees about matters within the scope
of their employment were within the company’s privilege. It assumed
that the government would be free to speak to the same employees.
The underlying information was not privileged, the Court said. Only the
communications with counsel were privileged.
But what about Rule 4.2? Will it prohibit government lawyers from
contacting Upjohn’s employees without consent of the company’s
lawyers on the ground that the employees are, in effect, “represented
persons” even
p. 100

p. 101

if not another lawyer’s actual client? In other words, if some employees

are deemed clients of the company’s lawyers for purposes of the
attorney-client privilege under Upjohn, are they deemed “represented
persons” for purposes of Rule 4.2 as well? Upjohn was a criminal

204
investigation, where other policy considerations may favor law
enforcement (see part A2). So let’s ask this question for civil matters.
If no company constituents (officers and employees) are
represented persons within the meaning of Rule 4.2, the rule does the
company no good. On the other hand, if all constituents are deemed
represented persons with whom contact is forbidden, we expand
corporate secrecy exponentially. Some companies have tens of
thousands of employees. If in addition we forbid contact with former
as well as current employees, we foreclose almost all informal
opportunities to learn information from those most likely to have it.
CASE NOTE: NIESIG v. TEAM I*
Initially, some courts held that if a constituent’s communication
with a company’s lawyer would be privileged under Upjohn, then the
constituent was also a “represented person” under Rule 4.2. Judge
(later Chief Judge) Judith Kaye of the New York Court of Appeals
explained the fallacy in that approach. The case arose under the Code’s
predecessor to Rule 4.2.
Plaintiff in this personal injury litigation, wishing to have his counsel privately interview a
corporate defendant’s employees who witnessed the accident, puts before us a
question that has generated wide interest: are the employees of a corporate party also
considered “parties” under Disciplinary Rule 7-104(A)(1) of the Code of Professional
Responsibility, which prohibits a lawyer from communicating directly with a “party”#
known to have counsel in the matter? . . .
[The intermediate appellate court] concluded, for theoretical as well as practical
reasons, that current employees of a corporate defendant in litigation [DeTrae here] “are
presumptively within the scope of the representation afforded by the attorneys who
appeared [in the litigation] on behalf of that corporation.” Citing [Upjohn] the court held
that DeTrae’s attorneys have an attorney-client relationship with every DeTrae employee
connected with the subject of the litigation, and that the prohibition is necessitated by
the practical difficulties of distinguishing between a corporation’s control group and its
other employees. . . .
Upjohn, however, addresses an entirely different subject, with policy objectives that
have little relation to the question whether a corporate employee should be considered a
“party” for purposes of the disciplinary rule. First, the privilege applies only to

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confidential communications with counsel; it does not immunize the underlying factual
information — which is in issue

p. 101

p. 102

here — from disclosure to an adversary. Second, the attorney-client privilege serves the
societal objective of encouraging open communication between client and counsel, a
benefit not present in denying informal access to factual information. Thus, a corporate
employee who may be a “client” for purposes of the attorney-client privilege is not
necessarily a “party” for purposes of DR 7-104(A)(1). . . .
Nor, in our view, is it necessary to shield all employees from informal interviews in
order to safeguard the corporation’s interest. Informal encounters between a lawyer and
an employee-witness are not — as a blanket ban assumes — invariably calculated to
elicit unwitting admissions; they serve long-recognized values in the litigation process.
Moreover, the corporate party has significant protection at hand. It has possession of its
own information and unique access to its documents and employees; the corporation’s
lawyer thus has the earliest and best opportunity to gather the facts, to elicit
information from employees, and to counsel and prepare them so that they will not
make the feared improvident disclosures that engendered the rule. . . .
The test that best balances the competing interests, and incorporates the most
desirable elements of the other approaches, is one that defines “party” to include
corporate employees whose acts or omissions in the matter under inquiry are binding
on the corporation (in effect, the corporation’s “alter egos”) or imputed to the corporation
for purposes of its liability, or employees implementing the advice of counsel. All other
employees may be interviewed informally. . . .
In practical application, the test we adopt thus would prohibit direct communication
by adversary counsel “with those officials, but only those, who have the legal power to
bind the corporation in the matter or who are responsible for implementing the advice of
the corporation’s lawyer, or any member of the organization whose own interests are
directly at stake in a representation.” This test would permit direct access to all other
employees, and specifically — as in the present case — it would clearly permit direct
access to employees who were merely witnesses to an event for which the corporate
employer is sued. . . .
Defendants’ assertions that ex parte interviews should not be permitted because of
the dangers of overreaching, moreover, impel us to add the cautionary note that, while
we have not been called upon to consider questions relating to the actual conduct of
such interviews, it is of course assumed that attorneys would make their identity and
interest known to interviewees and comport themselves ethically.

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 Take note of the caution in Judge Kaye’s final paragraph.
After Niesig, the ABA amended comment [7] to Rule 4.2 to identify
the Niesig categories in somewhat different language and to say, as
Niesig also did, that former employees were not within the rule.
[7] In the case of a represented organization, this Rule prohibits communications with a
constituent of the organization who supervises, directs or regularly consults with the
organization’s lawyer concerning the matter or has

p. 102

p. 103

authority to obligate the organization with respect to the matter or whose act or
omission in connection with the matter may be imputed to the organization for
purposes of civil or criminal liability. Consent of the organization’s lawyer is not required
for communication with a former constituent. . . .

Now let us revisit the Slip and Fall problem and use it to interpret Rule
4.2.

Slip and Fall (Part II)

Slip and Fall (Part I) in chapter 2B2 asked you to say whether
memoranda of the interviews that Mike Todd, Tracy’s investigator,
conducted were subject to the attorney-client privilege. Assume
instead that Cora Lundquist, the plaintiff’s lawyer, wants to talk
informally to each person Todd interviewed, and Todd himself,
outside the presence of and without permission from Jeanine Parr,
Tracy’s lawyer. She wants to avoid the expense of depositions. She
also fears that Tracy’s current employees; Rivera (the wax
company’s CEO); and Corcoran, Tracy’s former head of maintenance,
will all be more guarded at a deposition, where Parr is present. And
she may need the interviews to decide if her client has a claim and to
frame a complaint. Can she do what she wants?

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 How Large Is the Circle of Secrecy?
Rule 3.4(f) permits a company’s lawyer to request (but not require)
employees and agents to “refrain from voluntarily giving relevant
information to another party” so long as the “lawyer reasonably
believes that [that] person’s interests will not be adversely affected.”
One tactic is not available. “An organization may not assert a
preemptive and exclusive representation by the organization’s lawyer
of all current (or former) employees as a means to invoke rule 4.2 and
insulate them all from ex parte communication with the lawyers of
potential adversary parties. . . . Any analysis must be employee
specific.” Patriarca v. Center for Living & Working, 778 N.E.2d 877
(Mass. 2002). See also ABA Opinion 95-396.
Niesig assumed that lawyers (or their investigators) will reveal their
“identity and interest” when interviewing unrepresented persons. Rule
4.2 does not say the same. Rule 4.3, however, does require a lawyer to
correct an unrepresented person who misunderstands the lawyer’s
role.
Rule 4.2 and much other authority also allow a lawyer to contact
former employees of a represented organization so long as they do not
have their own counsel. But the lawyer must not seek “to elicit
privileged or confidential information from an opponent’s former
employee.” Muriel Siebert & Co. v. Intuit, Inc., 868 N.E.2d 208 (N.Y.
2007) (collecting cases). Clark v. Beverly Health & Rehabilitation
Services, 797 N.E.2d 905 (Mass. 2003),
p. 103

p. 104

citing an “abundance of authority,” held that “counsel must also be

careful to avoid violating applicable privileges or matters subject to
appropriate confidences or protections.”

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 Those seem like sensible limits but consider the challenge. While
interviewers can frame questions with care — so they won’t, for
example, ask a current or a former employee about communications
with the organization’s lawyer — an entirely innocent question can elicit
“confidential information.” The interviewer can warn the interviewee not
to disclose “privileged or confidential information,” but the interviewee
may not understand what that means and clam up.
Some companies require employees to sign agreements that make
everything about the company confidential. If everything is confidential,
Niesig’s categories are irrelevant. The Restatement rejects the view
that information is confidential for purposes of Rule 4.2 simply
because of a confidentiality agreement. Confidentiality must come
from law, not a contract. The Restatement says that a lawyer “may not
seek to obtain information that the lawyer reasonably should know the
nonclient may not reveal without violating a duty of confidentiality to
another imposed by law.” Restatement §102 (emphasis added.)
Sometimes a lawyer, unable to get anywhere with the company’s
outside counsel, will want to speak to someone within its general
counsel’s office. May she bypass outside counsel? On one hand, this is
a direct contact with an employee of the opposing client without
permission from the opposing lawyer. On the other hand, the contact is
with a lawyer, who presumably does not need the rule’s protection. Bar
opinions have allowed the contact unless specifically instructed
otherwise. ABA Opinion 06-443; D.C. Opinion 331 (2005).

What If the Government Is the “Represented Person”?

When in a civil case a government body is the “represented person”
— most often as a party — two values clash. The government has the
same interest as any litigant in preventing communications with
constituents in the Niesig categories. On the other hand, there is a First
Amendment right to petition the government. Which interest prevails?
The comment to Rule 4.2 says that “communications by a lawyer on

209
behalf of a client who is exercising a constitutional or other legal right
to communicate with the government” are allowed. Restatement §101
says the rule only applies to the “negotiation or litigation . . . of a
specific claim of a client against a governmental agency or against a
governmental officer in the officer’s official capacity.” Requiring contact
with the government to go through the government’s lawyer more
broadly, it says, would “compromise the public interest in facilitating
direct communication between representatives of citizens and
government officials.” Comment b.
ABA Opinion 97-408 goes even further. It permits contact with
officials “who have authority to take or to recommend action in the
matter, provided
p. 104

p. 105

that the sole purpose of the lawyer’s communication is to address a

policy issue, including settling the controversy.” The lawyer must,
however, “give government counsel reasonable advance notice of his
intent to communicate with such officials, to afford an opportunity for
consultation between government counsel and the officials on the
advisability of their entertaining the communication.” The no-contact
rule continues to apply where the official lacks the described authority
or the lawyer’s goal is to “develop evidence” or learn information that
would be useful in the matter.
The government is the opposing party in criminal prosecutions.
Who may defense counsel not contact? Who is the prosecutor’s client?
The answer is that the client is the United States, or the State, or the
People, not the prosecutor’s witnesses, not the arresting officers, not
the victim. Defense counsel do not need permission to interview any of
them unless they are known to have personal counsel in the matter.
Prosecutors must not interfere with these defense efforts. See

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Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989) (trial judge
ordered disqualification of appointed counsel who attempted to
interview the state’s witnesses without prosecutor’s permission;
appellate court held that a writ of mandamus will issue unless the
judge withdraws the order).

Testers: Pretending You’re Someone Else

“We Only Want to Know What Reach Tekkno Is Saying”

“Our client was a highly paid executive at Reach Tekkno. He was
fired a few months after he protested certain business practices that
he claimed, justifiably, were illegal. We’ve sued for retaliatory
discharge but that’s not why I’m talking to you. Our client, I’ll call him
Cooper, has been unable to find new work and he has strong
suspicions that Reach Tekkno is giving him a bad reference. But no
one he applies to will say so. When Cooper left, the HR chief
promised to support his search and of course it’s in Reach’s interest
to do so to mitigate possible damages. But there are officials at
Reach who don’t feel kindly toward Cooper.
“There’s a service, Verify Reference, Ltd., that will pose as our
client’s prospective employer and call for a reference. They use a
person who is knowledgeable about Cooper’s line of work. In this
state, one party to a phone call can record it without telling the other
party, and that’s what Verify will do. If Reach’s reference is good,
there’s no problem. If not, we’ll get the evidence and we may amend
our complaint to allege defamation and business tort theories. Even
if we don’t amend, it will help us in proving actual and punitive
damages.
“One of our young lawyers thinks maybe we can’t do that
because we know Reach has counsel in the matter and because
we’d be asking Verify to misrepresent itself. But we’re not looking for

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 strategic information or secrets. We only want to know what Reach
Tekkno is saying
p. 105

p. 106

to the rest of the world. We know that Cooper can hire Verify himself
and leave us out of it because Rule 4.2 doesn’t bind him, but he
rightly feels that it will go better if we’re there to direct things. And if
we take the lead, it may be easier to protect communications with
Verify from discovery.
“Can we do it? What’s your advice?
Serena Makashay
Abell, Hayes, & Pickney LLP”

You work at a public interest law firm that brings housing

discrimination cases. You’ve settled a dispute with a landlord, but you
get reliable information that it is continuing to discriminate. You want
to send in “testers” to find out. A “tester” is someone who pretends to
be what she is not. Each tester couple will pretend to want an
apartment. One couple will be white and the other will be persons of
color. Their financial and employment status will be the same. You
want to see if they are treated differently. You know that the landlord
has a lawyer on the matter. May you use the testers? Courts say that
you may. In re Curry, 880 N.E.2d 388 (Mass. 2008) (approving the use
of “investigators [who] pose as members of the public interested in
procuring housing or employment, in order to determine whether they
are being treated differently based on their race or sex. Their aim is to
reproduce an existing pattern of illegal conduct”).
Testers are also used in intellectual property cases. Say a lawyer for
a manufacturer believes that Q Co. is “passing off” someone else’s

212
product as her client’s product. The no-contact rule would seem to say
that the lawyer may not use a tester to speak to employees of Q Co., at
least not those employees in the Niesig and comment [7] categories, if
she knows that Q Co. has a lawyer in the matter. On the other hand, the
tester will only pretend to be a member of the public seeking
information that Q Co. offers anyone. So perhaps we should say that
the abuses the no-contact rule is meant to prevent are absent.
That was the conclusion in Gidatex, S.r.L. v. Campaniello Imports,
82 F. Supp. 2d 119 (S.D.N.Y. 1999) (collecting other authority). A law
firm had sent testers to the business establishment of a represented
furniture wholesaler, which the firm believed was guilty of violating its
client’s trademark. Posing as interior decorators, they talked with the
sales clerks and recorded some of the conversations. The court
addressed claims that this tactic violated both the no-contact rule and
the rule forbidding lawyers to engage in misrepresentation, including
through another. The court wrote that
hiring investigators to pose as consumers is an accepted investigative technique, not a
misrepresentation. The policy interests behind forbidding misrepresentations by
attorneys are to protect parties from being tricked into making statements in the
absence of their counsel and to protect clients from

p. 106

p. 107

misrepresentations by their own attorneys. The presence of investigators posing as

interior decorators did not cause the sales clerks to make any statements they
otherwise would not have made. There is no evidence to indicate that the sales clerks
were tricked or duped by the investigators’ simple questions such as “is the quality the
same?” or “so there is no place to get their furniture?”

It is important in Gidatex and like cases that the wrongdoing was

ongoing and that the testers elicited the same responses that the sales
clerks would give any interior decorator. To reach the result it did,
however, the court had to ignore the literal language of the no-contact
rule, whose prohibition, it acknowledged, may “technically” have been

213
violated. In the alternative, the court held that suppression was not
required even if there was a violation.
Another case from the same court (but a different judge) reached a
different conclusion where the testers, a lawyer and his investigator,
attended a promotional event for the opposing company and, while
making secret recordings, “asked [its personnel] specific targeted
questions related to the scope of [the defendant’s] operations in New
York and responsive to proving jurisdiction in this forum. This line of
questioning is reminiscent of that in a deposition.” Dareltech, LLC v.
Xiaomi Inc., 2019 WL 10966202 (S.D.N.Y. 2019) (excluding the
evidence but not disqualifying the lawyers).
The question here goes beyond the no-contact rule because
lawyers are also forbidden to engage in “deceit” or “misrepresentation,”
personally or “through the acts of another.” Rules 4.1(a) and 8.4(a) and
(c). That is true whether or not the target is represented by counsel in
the matter. Using testers is one example of what is sometimes called
“pretexting,” creating a false story to get information. Two deceit cases
that would be beyond belief if they weren’t true — and are hard to
believe anyway — are the disbarment opinions in In re Crossen, 880
N.E.2d 352 (Mass. 2008) and In re Curry, above. Two lawyers (one a
former high-ranking assistant U.S. attorney and partner in a large law
firm) employed an elaborate ruse to get a judge’s former law clerk to
disclose information they hoped to use (unsuccessfully as it turned
out) to challenge the judge’s ruling and force her recusal.
Another pretexting case, also hard to believe, is Leysock v. Forest
Laboratories, 2017 WL 1591833 (D. Mass. 2017), where the district
court dismissed a qui tam case because the relator’s law firm used
pretexting to gather information for its complaint.* The law firm’s
deceptions went beyond simple misidentification.
p. 107

p. 108

214
 The investigation [based on “falsehoods, misrepresentations, and deceptive conduct”]
was designed to appear as if it were a medical research study; its only purpose,
however, was to obtain otherwise-confidential information from busy medical
professionals for use in litigation. To accomplish that end, Dr. Godec [working for the law
firm] falsely stated, and repeatedly implied, that the study had a benign research
purpose. Indeed, the survey invitation explicitly said so.
Dr. Godec also falsely stated that the information obtained from the physicians
would be kept confidential.

For years, the ABA has struggled unsuccessfully to write a rule that
would identify when a lawyer may use deception to gather information.
Oregon has such a rule. Oregon Rule 8.4(b) provides that
it shall not be professional misconduct for a lawyer to advise clients or others about or
to supervise lawful covert activity in the investigation of violations of civil or criminal law
or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with
these Rules of Professional Conduct. “Covert activity,” as used in this rule, means an
effort to obtain information on unlawful activity through the use of misrepresentations
or other subterfuge. “Covert activity” may be commenced by a lawyer or involve a lawyer
as an advisor or supervisor only when the lawyer in good faith believes there is a
reasonable possibility that unlawful activity has taken place, is taking place or will take
place in the foreseeable future.

This rule gives private lawyers some of the same investigative

authority that courts give prosecutors, as described in part A2 below.
Virginia Rule 8.4(c) gives private lawyers a limited license to use
testers. The rule forbids deception when it “reflects adversely on the
lawyer’s fitness to practice law.”

Pop-Up Questions (Answers on Page 115)

“The Adverse Client . . .”

(a) The adverse client, whom you know to be represented in
the matter, calls you to discuss settlement or to negotiate a deal
directly. She tells you it’s okay because she has fired her lawyer
or because her lawyer encouraged her to reach out. What do you
do?

215
 (b) The adverse client, whom you know to have counsel in the
matter, is a personal injury plaintiff who claims that your client’s
negligence left him without full use of his left arm. Can you hire
an investigator to join the plaintiff’s gym, without
misrepresenting himself, and then secretly photograph the
adverse client making full use of his left arm?
(c) The adverse client, whom you know to have counsel in the
matter, is in negotiation to sell a company to your client. Its CFO
is

p. 108

p. 109

prominent on social media sites open to the public. Can you ask
your paralegal to frequent those sites and watch for statements
that will assist your client’s negotiation strategy, but without
misrepresenting himself?
(d) The adverse client is Car Care, which owns a chain of auto
repair shops in the state. Your client hired you to sue it for
negligence in repairing the brakes on her Range Rover, resulting
in personal injury and property damage. Before you sue, you
write to the company’s lawyer in an effort to settle. Negotiations
fail. You have a colleague who knows a mechanic at Car Care
who would be willing to talk to you. He gives you her contact
information. Can you call her?
(e) The adverse client is FidelGard, a financial services firm
that your client is suing for breach of fiduciary duty. You get a call
from a lawyer who tells you that he represents Meredith Maxie, a
broker at the firm. The lawyer says that Maxie, who is not a party,
has some information she would like to share with you and asks
for a meeting among you, Maxie, and the lawyer. You know that
Maxie had some responsibility for your client’s account. You had

216
 scheduled her deposition for the following week, which may
explain the call. What can you do?

2. Criminal Matters

The Case of the Cooperating Target

Nelly Werker, the United States Attorney for the Southern District
of New York, is investigating commercial bribery in the local building
trades. Among the “persons of interest” are Letitia Wall and Mort
Blakely, executives at Newtonian Construction, Inc., which is also
under investigation. Wall is believed to be the ringleader. While the
investigation is in progress, Werker receives a request from Blanche
Menendez, a lawyer for Blakely. She asks Werker to meet with her
and Blakely to discuss a resolution. At the meeting, Blakely offers to
cooperate.
Werker says she is prepared to let Blakely plead to a five-year
felony (he was facing a 20-year count) with a promise to recommend
a sentence of not more than 18 months. In exchange, Blakely must
secretly record conversations with Wall. The conversations are
meant to gather information about past bribes and ongoing
concealment efforts. Werker’s office will conduct mock
conversations with Blakely and identify the topics for him to discuss.
Blakely has two days to accept Werker’s offer.
The next morning, coincidentally, Werker receives a letter from
Barry Hu, who says, “Wall has retained me in connection with the
building trades investigation.” The same day, Marta Russo emails
Werker to

p. 109

p. 110

217
 say, “Newtonian has retained me in the building trades investigation.”
That evening, Blakely accepts the deal. May Werker implement her
plan? If so, what advice would you give her about how to go about it?

Rule 4.2 applies in both civil and criminal matters, as its comments
recognize. The Sixth Amendment right to counsel also applies in
criminal matters and prohibits the government from questioning an
accused person outside the presence of his counsel after “judicial
proceedings have been initiated.” Rothgery v. Gillespie Cnty., 554 U.S.
191 (2008) (“[A] criminal defendant’s initial appearance before a judicial
officer, where he learns the charge against him and his liberty is
subject to restriction, marks the start of adversary judicial proceedings
that trigger attachment of the Sixth Amendment right to counsel.”). But
even where the Sixth Amendment right has not yet attached, what
about the no-contact rule? What if a person under investigation but
uncharged is known to be represented by counsel in the matter? This is
Werker’s dilemma. For more than four decades, this simple question
has prompted a debate, not only about Rule 4.2, but also about
federalism and separation of powers.
Construing the predecessor to Rule 4.2 in the Code, United States v.
Hammad, 858 F.2d 834 (2d Cir. 1988), stunned federal prosecutors by
holding that the rule did apply to them even before judicial proceedings
were initiated. Hammad transformed what had been a below-the-radar,
largely inconsequential issue into a crisis for prosecutors.
The government had sent a cooperating informant to speak to
Hammad at a time when the government knew that he had counsel but
before he was charged. To bolster the informant’s credibility, the
government armed him with a fake grand jury subpoena. Hammad
made incriminating statements on tape, which he moved to suppress.
The court found a violation of the no-contact rule. The sham subpoena

218
made the informant the prosecutors’ alter ego. But the court declined
to suppress the tape because the question was novel.
Although the Hammad ruling did not help Hammad himself, it
loomed as a warning to federal prosecutors, especially in the Second
Circuit. But not for long. Almost from the day it was decided, Hammad
has been on life support. The Second Circuit has not overruled
Hammad, but it has largely eliminated its precedential value, which
amounts to the same thing. United States v. Binday, 804 F.3d 558 (2d
Cir. 2015) (abrogated on another point in Ciminelli v. United States, 598
U.S. 306 (2023)). Other circuit courts have refused to follow it. Cases
are collected in United States v. Balter, 91 F.3d 427 (3d Cir. 1996) and
United States v. Carona, excerpted below.
Hammad alarmed the Justice Department, not least of all because
its boundaries were vague. Two successive attorneys general —
Richard Thornburgh and Janet Reno — adopted internal rules to limit
its reach. They argued that so long as a federal prosecutor followed the
Justice Department’s
p. 110

p. 111

own rules, the conduct would be “authorized by law,” an exception to

the no-contact rule. That effort imploded when United States ex rel.
O’Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998), held
that the department did not have “valid statutory authority” to adopt its
rules.
Then, also in 1998, Congress passed what has come to be known
as the “McDade Amendment.” The lesson here is be careful who you
mess with or, as in this story, who you indict. Joseph McDade, a
powerful congressman, was acquitted in 1996 of federal conspiracy
and racketeering charges. Enlightened perhaps by the unhappy
experience of being a federal defendant, and distressed by the

219
prosecutors’ conduct, McDade returned to Congress and sponsored a
bill that added Section 530B to Title 28 of the United States Code. Its
aim was to leave no doubt that court ethics rules that governed other
lawyers also governed federal government lawyers.
The McDade Amendment, as it became known, says that lawyers
for the federal government “shall be subject to State laws and rules,
and local Federal court rules, governing attorneys in each State where
such attorney engages in that attorney’s duties, to the same extent and
in the same manner as other attorneys in that State.” The attorney
general was directed to “make and amend rules . . . to assure
compliance with this section.” Those rules can be found at 28 C.F.R.
Part 77. The key provision (§77.3) states:
In all criminal investigations and prosecutions, in all civil investigations and litigation
(affirmative and defensive), and in all civil law enforcement investigations and
proceedings, attorneys for the government shall conform their conduct and activities to
the state rules and laws, and federal local court rules, governing attorneys in each State
where such attorney engages in that attorney’s duties, to the same extent and in the
same manner as other attorneys in that State, as these terms are defined in §77.2 of
this part.

As befits C.F.R. provisions drafted by lawyers, key phrases and nouns in

this sentence are each then separately defined.
Even though the McDade Amendment now binds Justice
Department lawyers, the question remains: Is contact with a
represented person whose Sixth Amendment right to counsel has not
yet attached “authorized by law” and exempt from Rule 4.2? The
attorney general has no authority to answer this question, but a court
can because, after all, Rule 4.2 is a court’s own rule. The Ninth Circuit,
which had favorably cited but distinguished Hammad in United States
v. Talao, 222 F.3d 1133 (9th Cir. 2000), addressed that question in the
next case.

UNITED STATES v. CARONA

220
 660 F.3d 360 (9th Cir. 2011)

CLIFTON, CIRCUIT JUDGE: . . .

Carona served as Sheriff of Orange County, an elected position,
from January 1999 until early 2008, when he resigned following his
indictment. During his initial campaign for sheriff in 1998, Carona
received financial

p. 111

p. 112

support from Donald Haidl. Haidl testified at trial that Carona “offered
[him] the complete power of the sheriff’s department for raising money
and supporting him.”
After Carona took office, Haidl testified that he continued to make
payments to Carona. He became concerned that Carona was
jeopardizing his position and Haidl’s arrangement by accepting small
amounts from other people. Haidl testified that he offered Carona and
Assistant Sheriff George Jamarillo each a “bribe not to take bribes” in
the amount of $1000 per month, which they accepted. Haidl also
testified that he gave Carona a speedboat in 2001, which they
concealed through a sham transaction.
In 2004, the federal government began an investigation. In early
2007, Haidl admitted his own criminal misconduct and signed a
cooperation plea agreement with the government. Following this plea
agreement, government attorneys instructed Haidl to meet with Carona
and to make surreptitious recordings of their meetings. At this time,
Carona was represented by attorney Dean Stewart, who had notified
the government that he was representing Carona.
Haidl met with Carona on July 7, 2007, and July 15, 2007, but these
meetings did not provide enough evidence to satisfy the prosecutors.
In preparation for a subsequent meeting, the government equipped
Haidl with two fake “subpoena attachments” that identified certain

221
records that Haidl was to tell Carona he had been subpoenaed to
produce. These documents referred to cash payments Haidl provided
to Carona and to the sham transaction they used to conceal the gift of
the speedboat. Haidl and Carona met again on August 13, 2007, and in
their conversation, Carona made statements that suggested both that
he had received payments and gifts from Haidl and that he wanted
Haidl to lie to the grand jury about these transactions. . . .
[Carona was convicted of witness tampering. On appeal he argued
that the prosecution had violated California Rule 2-100, the then-
counterpart to Model Rule 4.2. Rule 2-100 had an exception for contact
“authorized by law.” The district court ruled that the prosecution had
violated Rule 2-100 but it declined to suppress, leaving any sanction to
disciplinary authorities.]
We disagree with the conclusion that the prosecutors violated Rule
2-100. To determine whether “pre-indictment, non-custodial
communications by federal prosecutors and investigators with
represented parties” violated Rule 2-100, we have adopted a “case-by-
case adjudication” approach rather than a bright line rule. [Talao.] We
have recognized the possibility that such conversations could violate
the rule and “declined to announce a categorical rule excusing all such
communications from ethical inquiry.” Nonetheless, our cases have
more often than not held that specific instances of contact between
undercover agents or cooperating witnesses and represented suspects
did not violate Rule 2-100.
The only relevant factual difference between [precedent] and the
current case is that here the prosecutors provided the informant with
fake
p. 112

p. 113

222
subpoena attachments to use in getting Carona to incriminate himself.
In Hammad, the Second Circuit held that issuing a false subpoena to
an informant to “create a pretense that might help the informant elicit
admissions . . . contributed to the informant’s becoming that alter ego
of the prosecutor.” Relying on Hammad, the district court held that the
use of the fake subpoena attachments made Haidl the alter ego of the
prosecutor, causing Haidl’s communication with Carona to violate Rule
2-100. . . .
We have not previously needed to consider the question of whether
providing fake court papers to an informant to use during a
conversation with a represented party is conduct that violates Rule 2-
100. Under the facts presented here, we conclude that it does not.
The use of a false subpoena attachment did not cause the
cooperating witness, Haidl, to be any more an alter ego of the
prosecutor than he already was by agreeing to work with the
prosecutor. Haidl was acting at the direction of the prosecutor in his
interactions with Carona, yet no precedent from our court or from any
other circuit, with the exception of Hammad, has held such indirect
contacts to violate Rule 2-100 or similar rules.
The false documents were props used by government to bolster the
ability of the cooperating witness to elicit incriminating statements
from a suspect. The district court appears to have been concerned that
by allowing such conduct a suspect could be “ ‘tricked’ into giving his
case away by opposing counsel’s artful questions,” but it has long been
established that the government may use deception in its
investigations in order to induce suspects into making incriminating
statements. See, e.g., Sorrells v. United States, 287 U.S. 435 (1932)
(“Artifice and stratagem may be employed to catch those engaged in
criminal enterprises.”). The use of fake documents here was just such a
stratagem. The reasoning of the Third Circuit in United States v.
Martino, 825 F.2d 754 (3d Cir. 1987), rejecting a claim of a prosecutorial

223
ethical violation based on a fake subpoena, seems to us particularly
persuasive:
If government officials may pose as non-existent sheiks in an elaborately concocted
scheme, supply a necessary ingredient for a drug operation, and utilize landing strips,
docking facilities, and other accoutrements of an organized smuggling operation, all in
order to catch criminals, then their use of a subpoena in the name of an undercover
agent to enable him to retain his credibility with suspected criminals seems innocuous
by comparison.

Additionally, the concern that a suspect might be tricked by

counsel’s artful examination is inapplicable here, since Carona was not
subject to any interrogation, let alone one by the prosecutor. Rather he
was engaging in a conversation with an individual he believed to be his
ally against the prosecution.
It would be antithetical to the administration of justice to allow a
wrongdoer to immunize himself against such undercover operations
simply by letting it be known that he has retained counsel. Particularly
here, where the undercover investigation revealed Carona encouraging
Haidl to lie, to hold
p. 113

p. 114

otherwise would be contrary to our observation in Talao that “it would

be a perversion of the rule against ex parte contacts to extend it to
protect [individuals] who would suborn perjury by [others].”
There were no direct communications here between the
prosecutors and Carona. The indirect communications did not
resemble an interrogation. Nor did the use of fake subpoena
attachments make the informant the alter ego of the prosecutor. On
the facts presented in this case, we conclude that there was no
violation of Rule 2-100. For this reason, we affirm the district court’s
decision not to suppress evidence obtained through the use of the fake
subpoena attachments. . . .

224
 AFFIRMED.

Carona not only permits prosecutors to use an intermediary, armed

with a fake subpoena, to contact a represented defendant, it explicitly
allows prosecutors to supervise deception by persons in law
enforcement, citing Sorrells v. United States.
If supervising deception is allowed, may a prosecutor choose to just
skip the intermediary and do the same thing herself? Logic might tell
us she could, but case law tells us maybe not. In Disciplinary Counsel v.
Brockler, 48 N.E.3d 557 (Ohio 2016), the prosecutor believed two of the
defendant’s alibi witnesses would lie at trial. One was the defendant’s
girlfriend. In an effort to cause her to recant, he created an elaborate
scheme involving a fake Facebook page. It implied that the defendant
was unfaithful. This conduct violated Rule 8.4(c) and (d). The sanction
was a stayed 12-month suspension. And in In re Pautler, 47 P.3d 1175
(Colo. 2002), a case that has been much debated, defended, and
criticized, the court sanctioned a prosecutor who pretended to be a
public defender after a dangerous murder suspect, holed up in an
apartment, demanded to talk to a lawyer before surrendering. The
suspect’s previous lawyer could not be found and no attempt was
made to contact the public defender’s office. The court imposed a
stayed three-month suspension and ordered Pautler to retake a legal
ethics class and exam. It cited Rule 8.4(c) among other rules.
To create a level playing field, should criminal defense lawyers be,
like prosecutors, “authorized by law” to use investigators who will
misrepresent themselves? The lawyer in In re McCormick, 819 N.W.2d
442 (Minn. 2012), argued that his conduct in sending an investigator to
talk to a represented co-defendant was authorized by law within the
meaning of Rule 4.2. The court disagreed and suspended him for 60
days. The authorized by law exception applied to “law enforcement
agencies, not defense attorneys.” McCormick could have asked

225
permission from the co-defendant’s lawyer. He could also “have sought
authorization from the court.”
In The Case of the Cooperating Target, how should U.S. Attorney
Werker proceed? Remember, she’s in the Second Circuit. How should
Barry Hu and Marta Russo instruct their clients?
p. 114

p. 115

Answers to Pop-Up Questions (Page 108)

(a) If what the adverse client says is true, you can talk to her. But
the safe course would be to check with the opposing lawyer
first.
(b) You can do this consistent with Rule 4.2 because observation
in a place in which you have a right to be is not a
communication.
(c) You can do this for the same reason. Your paralegal is not
communicating.
(d) You know that Car Care has a lawyer in the matter because
you wrote to her about it. Whether you can communicate
with the mechanic depends on whether she is within the
categories in comment [7]. If she is not the mechanic who
worked on your client’s car and not implementing the advice
of counsel, each of which you should confirm at the start of
the interview, she would not be a “represented person.” She is
not in management.
(e) Comment [7] allows you to communicate with Maxie with her
lawyer’s permission. “If a constituent of the organization is
represented in the matter by his or her own counsel, the

226
 consent by that counsel to a communication will be
sufficient for purposes of this Rule.”

B. IMPROPER OR ACCIDENTAL ACQUISITION OF CONFIDENTIAL

INFORMATION

“It’s the Discovery Wellmost Suppressed”

“I got a surprise visit at my office yesterday from a woman who
didn’t reveal her name. She told the receptionist it was about
Wellmost, a big pharma company I am suing on behalf of a class of
patients who claim that a Wellmost drug had undisclosed side
effects. So I met with her and she told me she was formerly a
paralegal at the law firm defending Wellmost. I remembered enough
from my legal ethics class to say ‘You have to leave. Right away.
Please don’t say anything about the case.’ ‘I won’t,’ she said. Then
she put a large envelope a half-inch thick on my desk and turned to
leave. ‘What are you giving me?’ I asked, then said, ‘No, don’t tell me. I
don’t want it, whatever it is. Please take it with you.’
“ ‘It’s the discovery Wellmost suppressed,’ she said, and walked
out.
“So now I have this envelope and I don’t know what to do with it.
Read the contents? Shred it unopened? Mail it to the opposing law
firm anonymously? What if it is suppressed discovery? There were
gaps in Wellmost’s document production or so it seemed to me.
“Maybe I shouldn’t have met with her, but for all I knew she had
information beneficial to my client and which I’d be free to use.
p. 115

p. 116

227
 Anyway, even if I had refused to meet, she could have left the
envelope with the receptionist or put it in the mail and I’d be in a
worse position because I would not know what the envelope
contained until I opened it. Or would that have put me in a better
position?
“What should I do? On one hand, the envelope’s contents may
help my client’s case. I have a duty to the client. On the other hand, I
don’t want to violate any rules that could get me booted from the
case or sanctioned. Rule 4.4(a) forbids the ‘use [of] methods of
obtaining evidence that violate the legal rights of [a third] person.’
Does that apply? I didn’t use a ‘method,’ did I? Rule 8.4(d) forbids
conduct prejudicial to the administration of justice.’ Would opening
the package do that?”

Courts have dismissed claims where a client or lawyer (or both)

have invaded an opponent’s confidential relationship other than
through a Rule 4.2 violation. Mayorga v. Ronaldo, 2023 WL
8047781(9th Cir. 2023)(case dismissed where plaintiff’s lawyer relied
on privileged documents revealed in hack by others). Joan Lipin
brought a sexual harassment claim against her former employer and
supervisor. During a pretrial proceeding in court, she surreptitiously
read a confidential memorandum of the opposing party’s law firm.
Mayorga v. Ronaldo, “At a break, [she] slipped the documents into a
Redweld file ‘for [her] own protection.’ ” When she told her lawyer what
she had done, he first declined to look at the papers but then, after
concluding “that any claim of privilege as to the documents had been
lost as a result of [his opponent’s] careless handling of them . . . he read
through them.” After the trial judge granted protective orders, with
which the plaintiff only partly complied, the case was dismissed. The
New York Court of Appeals affirmed the dismissal. Lipin v. Bender, 644
N.E.2d 1300 (N.Y. 1994):

228
 The trial court, and the Appellate Division, could hardly have been clearer in their
conclusions, characterizing plaintiff’s conduct — as well as that of her attorney — as
“heinous” and “egregious,” a threat to the attorney-client privilege, to the concept of
civilized, orderly conduct among attorneys, and even to the rule of law. . . .
While the Appellate Division made plain that it would reach the same result whether
or not the documents were actually privileged, in fact both courts agreed as to the
protected nature of the documents. . . . Similarly lacking any basis in the record . . . is
plaintiff’s claim that defendants waived the privilege by leaving the documents on the
hearing room table during argument.

Lipin’s lawyer was later suspended from practice for two years for
this and other conduct. In re Wisehart, 721 N.Y.S.2d 356 (App. Div.
2001).
In a divorce case, “Husband improperly accessed Wife’s personal
email account and obtained the list of direct examination questions
[Wife’s lawyer planned to ask and Wife’s] payroll information.” He gave
these items to Eisenstein, his lawyer, who knew the source but used
them anyway. Eisenstein was suspended indefinitely. In re Eisenstein,
485 S.W.3d 759 (Mo. 2016).
p. 116

p. 117

I have a file called “What Were They Thinking?,” a question that

makes a factual assumption — thinking. One case in my file is In re
Winkler, 834 N.E.2d 85 (Ind. 2005). Two prosecutors, Goode and
Winkler, attended a deposition in connection with a criminal case.
Apparently, depositions are allowed in criminal cases in Indiana. The
court describes what happened after the defendant and his lawyer left
the room:
Goode seized notes the defendant had written and shared with his attorney. Goode tore
the notes from a legal pad that had been turned face down on a table before the
defendant and his counsel left the room to confer. Goode gave the notes to Winkler who
concealed them by placing the notes among a stack of files she had before her on the
table. Respondents wanted to use the notes as a handwriting exemplar to compare with
other evidence in the case. When defendant and his counsel returned to the room
neither respondent advised them that they had seized the notes. When counsel and the

229
 defendant began looking for the notes, Winkler went so far as to shuffle through her files
as if looking for the notes. Only when defendant saw the edge of a yellow piece of paper
protruding from Winkler’s files, did she acknowledge having the notes and return them
to defendant.

Both prosecutors were suspended.

After a deposition at their offices, plaintiffs’ counsel “somehow”
found themselves in possession of the defense lawyers’ notes. It is
unclear how that happened. For a time, plaintiffs’ lawyers were alone in
a conference room with defense counsel’s case file, which had
contained the notes. The benign explanation is that defense counsel
mistakenly left the notes behind when the deposition ended. A less
charitable explanation is also available. Either way, without alerting
their opponents, plaintiffs’ counsel made strategic use of the notes,
including by sharing them with their experts. When defense counsel
realized what had happened, they moved for return of the notes and to
disqualify plaintiffs’ counsel and their experts. The court agreed:
When a lawyer who receives materials that obviously appear to be subject to an
attorney-client privilege or otherwise clearly appear to be confidential and privileged and
where it is reasonably apparent that the materials were provided or made available
through inadvertence, the lawyer receiving such materials should refrain from
examining the materials any more than is essential to ascertain if the materials are
privileged, and shall immediately notify the sender that he or she possesses material
that appears to be privileged. The parties may then proceed to resolve the situation by
agreement or may resort to the court for guidance with the benefit of protective orders
and other judicial intervention as may be justified.

Rico v. Mitsubishi Motors Corp., 171 P.3d 1092 (Cal. 2007).

Inadvertent Disclosure and Metadata

It has become increasingly possible that even careful lawyers will
slip up and disclose privileged or other protected information. Click
“Reply All”
p. 117

p. 118

230
on a screen. Include a privileged document among thousands delivered
(or electronically transmitted) in discovery. It can happen to anyone.
And because it can, we have a rule to avoid inadvertent waiver.
Rule 4.4(b) requires a lawyer to give prompt notice to an opponent
when the lawyer “knows or reasonably should know that [a] document
or electronically stored information was inadvertently sent.” The rule
then leaves to substantive law whether the lawyer must comply with
the opponent’s instructions to return it. The Arizona Supreme Court has
held that delivering the inadvertently disclosed documents to the court
is appropriate. The lawyers can then work out whether the documents
must be returned. If they can’t agree, the judge can decide. Lund v.
Myers, 305 P.3d 374 (Ariz. 2013).
A 2008 amendment to the Federal Rules of Evidence adds Rule
502, which provides in part: “When made in a federal proceeding or to a
federal office or agency, the disclosure does not operate as a waiver in
a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the
holder of the privilege or [work-product] protection took reasonable
steps to prevent disclosure; and (3) the holder promptly took
reasonable steps to rectify the error, including (if applicable) following
[Fed. R. Civ. P.] 26(b)(5)(B).” Rule 26(b)(5)(B) provides:
If information produced in discovery is subject to a claim of privilege or of protection as
trial-preparation material, the party making the claim may notify any party that received
the information of the claim and the basis for it. After being notified, a party must
promptly return, sequester, or destroy the specified information and any copies it has;
must not use or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it before being
notified; and may promptly present the information to the court under seal for a
determination of the claim. The producing party must preserve the information until the
claim is resolved.

“Inadvertent” is the critical adjective here. The rule is not available to

a lawyer who intentionally produces a document erroneously believing
that he was required to do so. The production wasn’t inadvertent. It
was a result of legal error.

231
 Metadata. Metadata is information in an electronic document that
is not visible on the screen, but can be restored, often with a few
keystrokes. A lawyer may unintentionally include metadata in
documents she produces. Bar ethics opinions diverge in describing a
recipient lawyer’s responsibility when a document that was
intentionally produced contains metadata of which the sender may be
unaware. ABA Opinion 06-442 concluded that the recipient lawyer
“generally” may review and use the metadata. It took no position on
whether the sending lawyer must be notified. However, a 2012
amendment to comment [2] to Rule 4.4 identifies metadata as within
the scope of Rule 4.4(b)’s notice requirements. A lawyer who knows or
reasonably should know that metadata was inadvertently sent must
“promptly notify the sender.”
p. 118

p. 119

New York Opinion 749 (2001) begs to differ. It says that even
searching for a document’s metadata is dishonest and prejudicial to
the administration of justice. D.C. Opinion 341 (2007) splits the
difference. It says that reviewing metadata in a document is unethical
only if the lawyer “knows” that the metadata was inadvertently sent.
The D.C. opinion makes the important point that different rules apply
when the metadata is contained in documents produced in discovery
or via subpoena as part of the history of the case. Then, the receiving
lawyer may have a right to it, and obstruction of justice statutes may
forbid the sending lawyer from stripping documents of metadata.
When a document becomes the subject of discovery or relevant to a
foreseeable litigation, it cannot be altered.

Self-Assessment Questions

232
1. Prosecutors believe that an investment advisory company with an
international presence is assisting some of the company’s wealthy
clients to launder money. The company gets wind of the
investigation as a result of a story in the financial press. It hires a
lawyer who notifies the prosecutors that he has been retained to
represent the company. The prosecutors want to proceed with
planned undercover work, in which two current clients of the
company will ask about money laundering (although in a subtle
way). In a jurisdiction that has adopted the Model Rules and its
comments, how should the prosecutors proceed with the
investigation of the company?
2. You work for a criminal law reform public interest law firm. It has
concluded after study that the quality of indigent legal services in
state X is too low to ensure compliance with Gideon v. Wainwright.
The state provides legal services through a statewide office of
defender services that oversees the work of five regional offices.
Your office sues state X, which will be defended by the attorney
general of the state. Some officials in the statewide office and some
lawyers who are not officials of that office or of the regional offices,
but who defend clients in court, call your office and offer to provide it
with more leads to prove its case. How do you respond?
3. This is a variation on a self-assessment question in chapter 2. Edie
Santos is planning to sue her former employer, Morkett Sales, for
discrimination based on ethnic identity and sex. Clyde Snoot is her
lawyer. Snoot has not yet filed a complaint but he has sent the
general counsel of Morkett a draft complaint as a way to prompt
settlement talks. And Snoot has discussed the claim with Morkett’s
outside counsel, Luis Caspone. Santos has given Snoot the names of
eight current and former co-workers who can substantiate her
claims. Can Snoot attempt to interview them?

* State v. Miller, 600 N.W.2d 457 (Minn. 1999):

233
 history. ‘What about that framed poster from my office of the little girl trying to get
to school?’ he asks. Johnnie means Norman Rockwell’s famous 1963 painting, The
Problem We All Live With, in which a black grade school girl walks to school
surrounded by federal marshals.” And so Cochran’s framed picture was hung at the
top of the stairs, where the jury couldn’t miss it as they trooped up to Simpson’s
bedroom. “Everyone,” Schiller reports, “is pleased.”

The prosecutors were outmaneuvered here. In her own book,

Marcia Clark, the lead prosecutor, wrote that the state had argued
against a visit to Simpson’s house, which was not the crime scene.
But the defense insisted on it, citing the jury’s visit to the home of
Nicole Brown Simpson. Plus, bloody socks had been discovered in
Simpson’s home. Before the jury entered the home, the lawyers did a
walk-through, and Clark saw the changes for the first time. “I’d gotten
no farther than the foyer when I realized something was very wrong
here. . . . [T]he most dramatic transformation was that collection of
photographs. The Wall of Fat Cats had been cleansed of Caucasians.
Gone were the golfing buddies and shots of Nicole in Aspen. Every
single shot contained a black face. Simpson’s mother, his sister, their
husbands, their kids. Upstairs there was even a Norman Rockwell
reproduction. . . . But the piece de resistance was the master
bedroom. On the mantel above the fireplace sat books on philosophy
and religion. On the nightstand, next to a Holy Bible, stood a photo of
defendant’s mother, Eunice.” Marcia Clark, Without a Doubt (1997).
Did the defense lawyers act ethically? Did they tamper with
evidence? Rosen is a law professor, so we might expect a greater
understanding of the issues from him than from a nonlawyer book
reviewer. Is his criticism correct? Many lawyers would call Cochran’s
conduct inspired.

Copycats. The Simpson defense lawyers’ strategy was later

attempted in the prosecution of NFL star Aaron Hernandez, who was
charged with killing semi-pro Odin Lloyd. The defense lawyers added

646
“religious items” and NFL memorabilia to Hernandez’s home, the scene
of the crime, in advance of a jury visit. The prosecutor objected and the
defense agreed to remove the items. Michelle Smith, “Hernandez
Prosecutor Cites OJ
p. 394

p. 395

Simpson Case in Judge Request,” Associated Press, Feb. 5, 2015.

Hernandez was convicted and sentenced to life without parole. Before
the murder, he had a $40 million contract with the New England
Patriots.*

The Rules Today (So Far as Can Be Known)

It’s not possible to speak for every jurisdiction, but my review
suggests that, subject to local variations, these are the rules for
criminal cases:

A lawyer can hold an item of real evidence to examine it but then

must either return it to the source or the original location or give it
to the authorities. This is true whoever may be the source or
whatever the location.
Some courts, however, forbid return of the item to the source or
location, even if it’s the client, and require the lawyer to give it to
authorities, which encourages lawyers to say, “Don’t give me that”
or “Don’t leave it here.”
If a lawyer receives real evidence from the client personally or
perhaps the client’s agent, the state cannot require her to reveal
the client or agent as the source.
If a lawyer gets real evidence, or information about location, from
a third person who is not the client’s agent, the state can require
the lawyer to identify the third person or the location.

647
 The privilege, if it otherwise applies, protects the client’s
communications, including about the location of real evidence,
and the lawyer’s confirmation of it in that location, but there is no
privilege for the item itself.
But if the lawyer “destroys” evidence of the location, as happened
in Ryder and Meredith, the lawyer can be required to disclose the
location despite a claim of privilege.

B. SOME ISSUES CONCERNING PROSECUTORS

[A prosecutor] is the representative not of an ordinary party to a controversy, but

of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be done.
— Berger v. United States, 295 U.S. 78 (1935)

A prosecutor has the responsibility of a minister of justice and not simply that of
an advocate. This responsibility carries

p. 395

p. 396

with it specific obligations to see that the defendant is accorded procedural justice,
that guilt is decided upon the basis of sufficient evidence, and that special
precautions are taken to prevent and to rectify the conviction of innocent persons.
— Model Rule 3.8 cmt. [1]

The primary duty of the prosecutor is to seek justice within the bounds of the
law, not merely to convict. The prosecutor serves the public interest and should act
with integrity and balanced judgment to increase public safety both by pursuing
appropriate criminal charges of appropriate severity, and by exercising discretion to
not pursue criminal charges in appropriate circumstances. The prosecutor should
seek to protect the innocent and convict the guilty, consider the interests of victims
and witnesses, and respect the constitutional and legal rights of all persons,
including suspects and defendants.
— Standard 3-1.2(b), ABA Criminal Justice Standards for the Prosecution Function

648
 Prosecutors have wide discretion. Many of their most
consequential decisions are unreviewable. They decide whom to
investigate, which crimes to charge, and whether to offer a plea deal
and its terms. Prosecutors are absolutely immune from liability for
conduct “intimately associated with the judicial phase of the criminal
process,” which includes “initiating and pursuing a criminal
prosecution.” Imbler v. Pachtman, 424 U.S. 409 (1976). But that
immunity does not include their “administrative duties and those
investigatory functions that do not relate to an advocate’s preparation
for the initiation of a prosecution or for judicial proceedings.” Buckley v.
Fitzsimmons, 509 U.S. 259 (1993). The Fifth Circuit denied absolute
immunity where a complaint alleged that the Orleans Parish District
Attorney’s Office and named prosecutors “used fake ‘subpoenas’ to
pressure crime victims and witnesses to meet with them,” in violation
of the Constitution and state law. Singleton v. Cannizzaro, 956 F.3d 773
(5th Cir. 2020).
There is the trial, of course. A trial is where a prosecutor’s work and
charging decisions will be tested. Judges and juries will examine her
proof under rules of evidence and procedure and the Constitution. The
evidence must prove all elements of the offense charged beyond a
reasonable doubt and satisfy other constitutional safeguards. But
many critical prosecutorial decisions are made long before trial. And
the vast majority of cases are resolved without trial. At trial,
furthermore, a prosecutor has resources far greater than nearly all
defendants.

1. Constitutional and Ethical Disclosure Obligations

[T]he investigation and prosecution of Senator [Ted] Stevens [by the Justice
Department] were “permeated by the systematic concealment of significant
exculpatory evidence which would

p. 396

p. 397

649
 have independently corroborated his defense and his testimony, and seriously
damaged the testimony and credibility of the government’s key witness.”
— In re Special Proceedings, 825 F. Supp. 2d 203 (D.D.C. 2011)

A New York State judge, Robert M. Mandelbaum, found that prosecutors with the
Manhattan district attorney’s office had failed to turn over evidence to the
[defendant’s] lawyers on three occasions, a major ethical violation, and dismissed
the charges.
Jonah Bromwich & Maria Cramer, “Botched Prosecution Lets Notorious Ex-Detective
Walk Free,” N.Y. Times, Feb. 1, 2023

“We Can Make No Promises But . . .”

Ilana Mallow is in an Omaha jail awaiting trial for killing her
former boyfriend, Ashton Boyle. The police interview Millie Koppel,
who does not know Mallow or Boyle but was an eyewitness. She
gives the police a description of the killer that matches Mallow and
picks her in a lineup. There is other evidence against Mallow,
including threatening text messages to Boyle and a partial
confession, which Mallow recanted. A second eyewitness was
unable to identify Mallow and a third identified someone else.
Koppel says she won’t testify, even if a judge orders her to do so,
“unless there’s something in it for me.” She is currently under
indictment for forgery. “Can you reduce that,” she asks Corky
Munson, the detective questioning her, “or just make it go away?”
Munson responds that “we can make no promises, but the D.A.’s
office here will always take cooperation into consideration depending
how helpful it is, and the judges here give that a lot of weight. What
they’ll do exactly is up to them.”
There is no further discussion along these lines. Koppel testifies
at trial, Mallow is convicted, and the conviction is affirmed. Two
years later, Mallow’s lawyer first learns about Munson’s conversation
with Koppel, which is not in dispute. Was there a Brady violation? A
violation of Rule 3.8(d)? Are the two identical or can conduct violate
one but not the other? What more do you want to know?

650
 One set of constitutional rules regulating prosecutors derives from
Brady v. Maryland, 373 U.S. 83 (1963), and requires prosecutors to give
the defense exculpatory information in the state’s possession. Even a
casual reader of the press will notice the many stories about convicted
individuals freed or given a new trial, sometimes years or decades later,
because a court has found a Brady violation. (We should not assume
that defendants
p. 397

p. 398

discover all such failures.) A casual reader of the press may also notice
that the victims of Brady violations are mostly people of color or people
of moderate means, which may explain the institutional failures to
address the structural issues that give rise to Brady violations.* On
occasion, judges do take notice of the scope of the problem. See, e.g.,
United States v. Olsen, 737 F.3d 625 (9th Cir. 2013). Five judges
dissenting from a refusal to rehear an appeal en banc wrote: “There is
an epidemic of Brady violations abroad in the land. Only judges can put
a stop to it.” The dissenters cited 29 federal and state cases finding
Brady violations since 1998.
In Strickler v. Greene, 527 U.S. 263 (1999), the Court described the
Brady obligation this way:
In Brady, this Court held “that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
We have since held that the duty to disclose such evidence is applicable even though
there has been no request by the accused, and that the duty encompasses
impeachment evidence as well as exculpatory evidence. Such evidence is material “if
there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Moreover, the rule encompasses
evidence “known only to police investigators and not to the prosecutor.” In order to
comply with Brady, therefore, “the individual prosecutor has a duty to learn of any

651
 favorable evidence known to the others acting on the government’s behalf in this case,
including the police.” . . .
[T]he term “Brady violation” is sometimes used to refer to any breach of the broad
obligation to disclose exculpatory evidence — that is, to any suppression of so-called
“Brady material” — although, strictly speaking, there is never a real “Brady violation”
unless the nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a

p. 398

p. 399

different verdict. There are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.

Evaluation of a Brady claim occurs after conviction. This is because

the defense may not know what the prosecutor withheld until then and
because the prejudice component — a “reasonable probability” of a
different outcome — is retrospective.* “A reasonable probability does
not mean that the defendant ‘would more likely than not have received
a different verdict with the evidence,’ only that the likelihood of a
different result is great enough to ‘undermine[] confidence in the
outcome of the trial.’ ” Smith v. Cain, 565 U.S. 73 (2012). You need to
know all the evidence in order to say if there was prejudice. The Second
Circuit explained this in United States v. Certified Environmental
Services, 753 F.3d 72 (2d Cir. 2014) (internal quotation marks omitted):
Although the government’s obligations under Brady may be thought of as a
constitutional duty arising before or during the trial of a defendant, the scope of the
government’s constitutional duty . . . is ultimately defined retrospectively, by reference to
the likely effect that the suppression of particular evidence had on the outcome of the
trial. . . . This aspect of Brady affects not only what the Government is obligated to
disclose, but when it is required to do so. Temporally, the timing of a disclosure required
by Brady is . . . dependent upon the anticipated remedy for a violation of the obligation
to disclose: the prosecutor must disclose . . . exculpatory and impeachment information
no later than the point at which a reasonable probability will exist that the outcome
would have been different if an earlier disclosure had been made.

652
 The fact that the Brady inquiry is retrospective may tempt a
prosecutor who is thinking like an advocate, not like the “minister of
justice” she is supposed to be, to withhold disclosure. “After all,” she
might think, “if I get a conviction, the defendant may never learn about
the information, in which case no court will ever review my decision. If
the information is discovered, the court may find a lack of prejudice. If
the court does find prejudice, it will order a retrial. I don’t have to worry
about discipline because prosecutors are rarely disciplined. † If I
disclose the exculpatory or impeaching
p. 399

p. 400

evidence, however, this clever defense lawyer will use it to create a

reasonable doubt and get the acquittal of an obviously guilty
defendant. How is that justice? Why take the chance?”
A Brady violation may be found and a conviction overturned after
many years of incarceration. If the accused is innocent, he will have
lost years of his life. If guilty, the state may find it hard or impossible to
retry him. A person whose conviction is overturned because a
prosecutor has violated Brady or another constitutional right might
seek monetary compensation for his incarceration. He can sue the
prosecutor, of course, but must expect an immunity defense. Further,
it’s the city or county that will be able to pay significant damages.
These entities are not vicariously liable for the misconduct of
prosecutors in the same way that a company is vicariously liable for
the conduct of its employees within the scope of their employment.
Instead, the plaintiff will have to prove that the prosecutor’s conduct
was the “policy” of the city or county. A policy may be proved by
showing that a policymaker in the office (like the elected D.A. or other
high officials) authorized or approved the particular conduct.

653
 An office will never have an explicit policy to violate Brady, of
course, but policy may also be proved by showing conscious disregard
of a risk of misconduct through failure to train prosecutors in their
professional obligations or to punish prosecutors who have committed
Brady violations. A “municipality’s failure to train its employees in a
relevant respect must amount to ‘deliberate indifference to the rights of
persons with whom the [untrained employees] come into contact’ ” in
order to be an office policy. Connick v. Thompson, 563 U.S. 51 (2011),
quoting City of Canton v. Harris, 489 U.S. 378 (1989).
Connick’s facts reflect badly on the profession and, as some see it,
on the Court. The case reversed a $14 million verdict in favor of a man
who spent 18 years in prison, 14 of them on death row. He was
released following discovery of Brady violations and sued the office of
the Orleans Parish District Attorney, which had prosecuted him. In a 5-4
decision for the Court, Justice Thomas held that the failure to train
prosecutors on their Brady obligations did not reveal deliberate
indifference because D.A. Connick could assume that his prosecutors
knew their obligations, or at least knew enough to know to research
close questions. The fact that in the decade before Thompson’s trial,
state courts had overturned four convictions from Connick’s office for
Brady violations did not count, Justice Thomas wrote, because those
cases involved different kinds of Brady violations.
A year later, the Court had reason to question its confidence in the
same Orleans Parish District Attorney’s office. In an 8-1 opinion,
Thomas dissenting, the Court overturned a 1995 conviction from that
office, citing Brady. Smith v. Cain, 565 U.S. 73 (2012). The undisclosed
evidence consisted of
p. 400

p. 401

654
the inconsistent statements of prosecution witness Boatner, the only
eyewitness to the crime. At oral argument, the state’s lawyer seemed to
maintain that although it would have been “prudent” to do so, Brady did
not require disclosure. Justice Sotomayor was surprised: “[I]t is
somewhat disconcerting that your office is still answering equivocally
on [as] basic [an] obligation as one that requires you to have turned
these materials over.” In his opinion for the Court, the Chief Justice
wrote:
Boatner’s undisclosed statements directly contradict his testimony: Boatner told the jury
that he had “[n]o doubt” that Smith was the gunman he stood “face to face” with on the
night of the crime, but [a detective’s] notes show Boatner saying that he “could not ID
anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.”
Boatner’s undisclosed statements were plainly material.

Connick sparked a good bit of discussion in the profession, mostly

critical. One reaction was a 2014 opinion from the ABA Standing
Committee on Ethics and Professional Responsibility, addressing the
ethical, as opposed to the constitutional, duties of supervisors and
managers in prosecutorial offices. ABA Opinion 467 (2014) recognizes
that no single set of rules can apply to all prosecutorial agencies
regardless of size and structure. The opinion offers detailed guidance
on how managers and supervisors can fulfill their duties under Rules
5.1 and 5.3.

Is the Rule 3.8(d) Turnover Duty Broader Than Brady?

You would think so after reading Rule 3.8(d), wouldn’t you?
As we’ve seen, the Brady inquiry almost always occurs after
conviction. The defendant must prove a “reasonable probability” of a
different trial outcome. Rule 3.8(d), by contrast, requires a prosecutor
to “timely” disclose certain information, which means at a time that the
defense can still make use of it at trial. Unlike Brady the rule has no
prejudice requirement, only a turnover duty. Because prosecutors do
not know the defense case, they are not in a position to say how the

655
information the rule describes (i.e., information that “tends to negate
the guilt of the accused or mitigates the offense”) may help the
defense or, conversely, whether a failure to provide it will cause
prejudice. Evaluating prejudice after conviction substitutes judges for
defense lawyers, who would otherwise have assessed the usefulness
of the information, and for jurors, who would otherwise have decided
what weight to give it. When followed, Rule 3.8(d) should avoid the
need for a judge to decide years or decades later whether suppressed
exculpatory information would have helped. No need to guess. The
evidence would have been disclosed before trial and the defense would
have decided its value.*
p. 401

p. 402

Even though the text of the rule is explicitly broader than Brady in
these ways, courts are divided on whether or not to read it that way.
The question arises in discipline or judicial review of a bar ethics
opinion (where allowed), not in an appeal from a conviction. In re Riek,
834 N.W.2d 384 (Wis. 2013), failed to see how the two rules worked
independently, holding that Rule 3.8(d) was not broader than Brady.
Under conflicting standards, prosecutors would face uncertainty as to how to proceed
and could face professional discipline for failing to disclose evidence even when
applicable constitutional law does not require disclosure of the same evidence. The
practical effect — disclosing evidence to avoid disciplinary sanctions — could effectively
expand the scope of discovery currently required of prosecutors in criminal cases. A
broader interpretation also invites the use of the ethics rule as a tactical weapon in
litigation, contrary to our stated intent in [the Preamble to the state’s rules]. What better
way to interfere with law enforcement efforts than to threaten a prosecutor with a bar
complaint? Prosecutors should not be subjected to disciplinary proceedings for
complying with legal disclosure obligations. We thus construe the ethical mandate of
[the state equivalent to Rule 3.8(d)] in a manner consistent with the scope of disclosure
required by the United States Constitution, federal or Wisconsin statutes, and court
rules of procedure.

State ex rel. Oklahoma Bar Ass’n v. Ward, 353 P.3d 509 (Okla. 2015)
(collecting cases), In re Petition to Stay the Effectiveness of Ethics

656
Opinion 2017-F-163, 582 S.W.3d 200 (Tenn. 2019), and other cases
agree with Riek.
The District of Columbia Court of Appeals disagrees. In In re Kline,
113 A.3d 202 (D.C. 2015), the court rejected the claim that a broad
reading of Rule 3.8(d) “will give rise to any confusion among local
prosecutors as to what they are obligated to disclose.” It cited and
rebutted Riek and explained what it saw as the need to read the rule as
distinct from Brady:
Retrospective analysis [of a turnover failure], while it necessarily comports with
appellate review, is wholly inapplicable in pretrial prospective determinations.
Specifically, in [precedent], this court recognized that Brady and its progeny were
retrospective evaluations that were difficult to apply in a pretrial context. “While it is
therefore true that the constitutional question commonly comes up retrospectively, the
due process underpinning of [Brady] is a command for disclosure [b]efore an accused
has to defend himself.” . . .
In short, although significant overlaps exist in a pretrial versus post-trial ethical
analysis, it makes little common sense to premise a violation of an ethical rule on the
effect compliance with that rule may have on the outcome of the underlying trial,
because there can be “no objective, ad hoc way” for a prosecutor “to evaluate before trial
whether [evidence or information] will be material to the outcome.” For that reason, it is
important not to use Brady as a “canon of prosecutorial ethics.” . . .
Further, adopting an ethical rule that errs in favor of disclosure will better ensure that
criminal defendants in the District of Columbia receive a fair trial. All too often we are
asked to decide whether information withheld by the government was exculpatory and
whether that information undermined

p. 402

p. 403

the fairness of the criminal trial in that case. Often, the call is a close one, with the court
making the best judgments it can about the impact the exculpatory evidence would
have had on a jury’s verdict or whether the information would have led to other
potentially exculpatory information that might have impacted the jury’s verdict. These
are judgment calls that can undermine the public’s trust and confidence in the courts
because they are not being made by a jury of one’s peers but by a court that is sitting
and reviewing a cold record.

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 In agreement are United States v. Sutton, 2022 WL 2383974 (D.D.C.
2022) (“[G]overnment counsel’s ethical obligations impose disclosure
requirements broader than what is constitutionally mandated.”) (citing
Kline) and In re Feland, 820 N.W.2d 672 (N.D. 2012). The ABA has also
construed the rule, which the ABA itself promulgated, as broader than
Brady. ABA Opinion 09-454. And, remarkably, so has the Supreme
Court! Kyles v. Whitley, 514 U.S. 419 (1995), observed that Brady
“requires less of the prosecution than the ABA Standards for Criminal
Justice,” citing both the Standards and Rule 3.8(d). But state courts are
not bound by the Supreme Court’s reading of Rule 3.8(d) when they
construe their own version of that rule, even if their version is identical
to the rule the Supreme Court cited. State high courts are the final
arbiters of the meaning of state ethics rules.*

Pop-Up Question (Answer on Page 407)

True or False: A prosecutor’s violation of Rule 3.8(d) can
support overturning a conviction even if there has not been a
Brady violation.

2. Ethical Issues in Making the Charging Decision

Prosecutors have no client in the ordinary sense. Yes, their client is

the State, or the People, or the United States. But practically speaking,
the prosecutor is both the representative of the client and its lawyer.
She (or her supervisors) make the decisions that ordinarily belong to
the client.
Rule 3.8(a) requires a prosecutor to “refrain from prosecuting a
charge that the prosecutor knows is not supported by probable cause.”
That’s not much of a rule. First, who could possibly argue with it?
Prosecutors can’t prosecute a person who is legally innocent even if

658
they think the person is factually guilty. Second, why would a
prosecutor waste resources prosecuting
p. 403

p. 404

someone likely to be acquitted or whose conviction is likely to be

overturned for lack of evidence? Perhaps because the charge itself will
win cooperation in the investigation of others. Or it might lead to a plea
bargain because the defendant will not know what evidence the
prosecutor has (or does not have) and may not want to risk trial. Rule
3.8(a) implicitly rejects the legitimacy of those motives. Third, the rule
applies only when the prosecutor “knows” the charges are not
supported by probable cause. It would seem practically impossible to
prove a violation of the rule. Sure, charges may turn out to lack
probable cause, but that doesn’t mean the prosecutor knew it. You
would need a smoking-gun confession, which is most unlikely.
The interesting ethical issue here is not whether, before proceeding,
the prosecutor must have probable cause to charge or, as some
describe it, whether she must or should have evidence sufficient to
support a finding of proof beyond a reasonable doubt, a higher burden
that some support. Let’s say she has that proof. Then, she may charge
or not, and if she charges, she can often select from a menu of crimes.
Because no rule constrains her decision when she has the proof, her
choices truly are ethical in the everyday meaning of the word. What is
the right thing to do? What is the right thing for Sue Kochin to do in the
case against Anita Winslow and Abel Mertz?

The People of the State of Montana v. Anita Winslow & Abel Mertz
The major industries in Skyler, Montana, population 27,300, are
ranching and farming. It gets a bit of tourism, mostly people on their
way to Yellowstone or Grand Teton National Parks. It’s a typical rural

659
Western city in just about every way, including one way its citizens
regret. In the last five years, opioids have come to Skyler.
At first, Sheriff Baxter Lovell and D.A. Sue Kochin had to deal with
small sellers in rural parts of the county. They thought they had put
an end to it. But lately they learned that large quantities were coming
through Montana from Denver and Chicago for sale locally and in the
west. Skyler was becoming a distribution hub. Lovell and Kochin
have witnessed the drugs’ effects. Victims include infants and
children whose parents neglect them, whole families when a user
withdraws savings or pawns valuables, targets of violent crimes, and
burglarized pharmacies. Lovell and Kochin are part of a group of
regional law enforcement officials addressing the problem.
Anita Winslow is the daughter of a single mother. Her father
disappeared when she was five. Her mother works two jobs to
support the family, which includes Winslow’s brother Andy, 16.
Winslow, 21, is a student at Skyler Community College.
Lovell has been trying to arrange a controlled buy for nearly a
year. Over Thanksgiving weekend, he got lucky. One of his deputies
arranged to make a $10,000 buy in the parking lot of a big box
p. 404

p. 405

store. At dusk, a car pulled up and Anita Winslow exited the

passenger side and walked to the undercover car with a paper bag.
She passed it through the window and received $10,000 in marked
money. The bag contained fentanyl, a synthetic opioid 30 to 50 times
more powerful than heroin. The driver of Winslow’s car appeared to
be a male in his 30s, whose face was obscured by a wide-brimmed
hat and oversized sunglasses. He apparently suspected a setup and
sped away leaving Winslow, who was arrested. The car, found
abandoned in Bend, Oregon a day later, had been stolen in Duluth,

660
Minnesota. Fingerprints and eyewitnesses enabled the police to
connect Abel Mertz to the car and they arrested him.
The case against Winslow is strong. The entire event was
videotaped, and Winslow made recorded statements showing that
she knew the contents of the bag. In a valid search of her home,
police found a quantity of opioids with a street value of $40,000 and
nearly $14,000 in cash hidden in a hollowed-out copy of The Girl with
the Dragon Tattoo.
Winslow was released to the custody of her mother but required
to wear an ankle bracelet. A lawyer, Beth Wooten, was appointed to
represent her. Kochin told Wooten that she was prepared to charge
Winslow with the lowest-grade drug felony. In light of Winslow’s age,
this will permit a diversionary sentence of treatment and eventual
expungement of the conviction. But as part of the deal, Winslow had
to plead guilty, tell Kochin everything she knows, accept five years of
supervised probation, and testify against Mertz and others if asked.
Winslow repeatedly refused to talk to either Kochin or even
Wooten. Wooten told Winslow that absent a deal, the quantity
Winslow sold and possessed would permit Kochin to prosecute
under the top felony drug charge, which carries a mandatory
sentence of 25 years to life. The judge won’t have a choice. While
Winslow would likely get out in 25 years, at age 46, there would be no
guarantee. Wooten explained in great and unpleasant detail the
conditions of confinement at the women’s prison in Billings, which is
a six-hour drive from Winslow’s home. But Winslow remained
adamant.
Kochin, Lewis Tan, her senior deputy, Cody Miller, Montana’s
criminal justice coordinator, and Taya Whitehorse, Montana’s first
assistant attorney general, meet to discuss Winslow and Mertz. All
have been working on the opioid problem, which has grown worse
since the arrests two months ago. It was apparent that the

661
distribution ring had found replacements for Mertz and Winslow. A
week earlier the police discovered three children under five, one an
infant, dehydrated and hungry. Their parents were passed out in the
bedroom.
Whitehorse wants Kochin to charge Winslow with the top drug
felony. “Conviction is certain,” she says. “She’ll come around pretty
fast after a few months at Billings. We then ask the court to vacate
the conviction and let her plead down. Courts have never refused
when we can show cooperation.”
p. 405

p. 406

“And if she doesn’t come around,” Miller says, “her life is ruined.”
Whitehorse says, “How about the children who are suffering in
this epidemic? Winslow has expressed no remorse or even a sliver of
moral responsibility for the effect of her crimes on them. I include
the teenage users, as well as the children of parents who are too
strung out to take care of them. They’re Winslow’s victims. We owe
all of them, and future victims, an effort to turn her. We don’t owe
Anita Winslow anything if she refuses to help us help them.”
“Maybe whatever she knows won’t help us anyway,” Tan says.
“We’re only asking her to tell us what she does know,” Kochin
says. “We do know that in the last half year she disappeared several
times and then lied to her mother about where she was. A
Greyhound driver remembers her going to Yakima about two months
before the arrest. We got video confirmation from the bus depot. She
stayed three days. The feds say Yakima is a distribution point for
Portland, Eugene, Seattle, and Spokane. She was more than just a
local dealer in Skyler. Why else would a 21-year-old spend three days
in Yakima, of all places?

662
 “What would we charge without regard to whether she helped
us?” Miller asks.
“There is no ‘without regard,’ ” Whitehorse says. “It’s all part of the
moral equation. Helping us is a factor in deciding the appropriate
charge. Judges do that all the time at sentencing, just as they
consider whether the defendant has taken responsibility and pled
guilty. You’re not saying that cooperation can never be a factor.”
Miller says, “Well, that’s really the question, Taya, isn’t it? Some
defendants have no information to trade.”
“Flip it,” Kochin says. “Let’s say hypothetically, charging a five-year
felony would be appropriate given that she’s dealing, not using, and
because we believe she has no information. We offer five but then
her lawyer tells us that she does have information to trade and tries
to plea bargain down. Would we reject that?”
“Of course not,” Miller says. “But Taya wants us to charge higher,
then offer to plead down for cooperation. That’s different. Isn’t it?”
“Not here, Cody,” Whitehorse says. “Because contrary to the
assumption in Sue’s question, we know that Winslow has
information that could help us, at least about Mertz and the Yakima
people and probably more. Besides I hope you’re not saying that
cooperation can get a reduction from some ‘appropriate’ benchmark,
if there even is such a thing, but a refusal to help can’t justify a higher
charge. A one-way street?”
The conversation turned to Mertz. “Mertz was convicted of opioid
sales five years ago and served 39 months in Ohio,” Tan reported.
“Informants tell us he was second in charge of distribution in the
Northwest. He’ll know others that Winslow doesn’t. He’s 36. We think
Mertz and Winslow have been intimate. Mertz is married, which
p. 406

663
 p. 407

Winslow may not know. If she did, she might not be willing to protect
him. It looks like he groomed her for the work. Showed her a lot of
attention. Made her feel special.”
“We should charge him with a 25 to life felony, too,” Whitehorse
says, “and offer 10 to 20 if he pleads and cooperates. If Winslow
agrees to testify and helps us, our case against him will be stronger.”
Miller says, “What kind of case do we have against Mertz without
Winslow? Ironic, isn’t it? He’s more culpable, but our case against her
is stronger. We have the video of the buy, the fentanyl she sold, the
marked money, the undercover’s testimony, her statements, and the
money and opioids from her room search. For him, the video of the
buy won’t help much. There’s a man generally matching his
description, but his face is hidden. We can tie him to the car and the
car to the buy. But putting him in the car at the buy? I don’t know. He
ditched the hat and sunglasses. We have enough to get to the jury,
but just barely.”
They all turn to Kochin. Miller says, “Sue, it’s your call. You’re the
elected D.A. We will support whatever you decide.” Kochin says she
wants to do “the right thing.” She’s worried about her community and
future fentanyl victims. She also wants to be fair. No rule tells her
what to do. What should she do?

Answer to Pop-Up Question (Page 403)

False. A violation of the rule can lead to discipline but it will not
by itself establish a Brady violation, which is necessary in order to
overturn a conviction.

664
 Can a Prosecutor Refuse to Enforce a Law?
MIAMI — Gov. Ron DeSantis of Florida suspended the top prosecutor in Tampa on
Thursday, accusing him of incompetence and neglect of duty for vowing not to
prosecute those who seek or provide abortions.
In a startling announcement, Mr. DeSantis, a Republican, suspended from office
Andrew H. Warren, the elected state attorney of Hillsborough County. In June, Mr.
Warren, a Democrat, was among 90 elected prosecutors across the country who
vowed not to prosecute those who seek or provide abortions after the Supreme
Court overturned Roe v. Wade. Florida imposed a 15-week abortion ban in April.

Patricia Mazzei, N.Y. Times, August 4, 2022.

Assume DeSantis had the power under state law to suspend or
remove Warren. Our different focus is Warren’s obligations as a
lawyer. Was Warren’s vow — if that’s what it was — a violation of his
duty to follow his client’s instructions?
p. 407

p. 408

YES: Warren was a state official and his client was Florida acting
through its legislature. While he can of course exercise prosecutorial
discretion not to prosecute in individual cases because of facts
particular to those cases, he cannot refuse to prosecute an entire
category of crimes because he personally disagrees with law. Could
a prosecutor who opposed any gun control refuse to prosecute a
constitutional state law banning private ownership of certain
firearms?
NO: The voters of Hillsborough County elected Warren. His
constituents favored his position. In exercising his prosecutorial
discretion, Warren could properly take their views into consideration.
He could also weigh the unlikelihood of being able to get an abortion
law conviction in the county, making the cost in time and money
imprudent.
Who’s right?*

665
 3. The Victim’s Interest in How a Prosecutor Decides

Although a crime victim is not the prosecutor’s client and cannot

make decisions that a client is entitled to make, victims do have an
interest in whether a case is brought, in any plea offer, and at
sentencing, where victims are allowed to speak. Prosecutors may and
often do discuss these questions with victims. Yet the prosecutor
alone has the power and responsibility to answer them. So then, what
can victims reasonably expect? What does society owe them?
Consultation? Information? Anything else? And to what extent should a
prosecutor be influenced by how the public is likely to view a particular
decision?

Whose Reasonable Doubt?

At 11 P.M. on a Sunday in June, Patsy Prasad, a young actress,
was robbed while on her way home from a theater party. The
incident left a small scar on her chin. She stayed calm enough to
study the face of her assailant, who said, “Give it up. Your cell phone,
too. Quick now.” A passerby saw the face of the assailant as he ran
off. The police discovered a footprint in the mud, with an unusual
pattern, a half block away in the direction the assailant fled.
Following days of looking at mug shot photos, Prasad and the
passerby, Anthony Munoz, independently picked the same photo and
then each separately identified the same man in a lineup. The man is
Morris Charles, 31. A search of his home produced a pair of sneakers
with caked mud and a footprint that is “consistent with” the one
found near the scene of the robbery, according to the police lab.
Prasad is “totally sure he’s the guy who hurt me,” and Munoz is “very
sure.”
Charles, 28, has two misdemeanor convictions for street
robberies when he was 23 and 25. One was a plea bargain from a

666
felony charge.
p. 408

p. 409

Asher McEvoy, his appointed lawyer, has asserted an alibi defense.

Charles will testify that he was miles away drinking with three friends
at the time of the robbery. The two misdemeanors cannot be used to
impeach his credibility.
The case was assigned to Viveka Montrose, an assistant D.A.
who heads the street crimes unit. She indicted Charles on a class C
felony, carrying a potential sentence of seven to 15 years. Montrose
believes she has a strong case. She believes she will successfully
cross-examine Charles (if he testifies) and his three alibi witnesses.
Two of them were vague when questioned by the police and in fact
contradicted each other on some details. One of the witnesses is
distantly related to Charles. And Charles said nothing about an alibi
when first questioned at his home before his arrest. Also, Prasad has
been highly cooperative, which has not always been Montrose’s
experience with victims, especially as cases drag on.
Prasad is prominent. She played “Honey” in the Broadway revival
of Edward Albee’s Who’s Afraid of Virginia Woolf? and was
nominated for an Academy Award for best supporting actress for her
portrayal of Ariella Sue Fishbein in Woody Allen’s film The Hungarian
Herring Heist. The news media will cover the trial.
In an effort to resolve the case before trial, Montrose offered to
let Charles plead to an E felony with a sentence recommendation of
three years. Charles rejected it.
At trial, Montrose’s case begins to weaken. Munoz is now only
“pretty sure” when he identifies Charles in court. On cross, McEvoy
gets him to say that he “isn’t certain it wasn’t someone else, but I’m
pretty sure it was him,” pointing to Charles. “I mean it was dark.”

667
Prasad gets confused on cross-examination and has to correct
herself on minor details. McEvoy spends 20 minutes reviewing the
precise number, times, and types of drinks Prasad had at her party
and whether she is an experienced drinker (“not very”). Charles and
his three alibi witnesses testify more credibly than expected despite
some inconsistencies. A manager of the company that made
Charles’s sneakers testifies that more than 150 pairs were sold in the
city before the line was discontinued.
As the evidence draws to a close after six days of trial, Montrose
realizes that she now has a reasonable doubt about Charles’s guilt. If
she were on the jury, she would vote to acquit. At the same time,
Montrose knows that the evidence amply supports a finding of guilt
beyond a reasonable doubt if the jury credits it. She is also confident
that she can make an effective argument on summation.
Prasad has no doubts at all. She is more certain than ever. “I
remember him like it was yesterday,” she tells Montrose after Charles
testifies. “This is the guy that cut me. No question. I recognized his
face and I recognized his voice when he testified. You did a great
cross. The jury didn’t believe him either. I watched their faces. I’m an
actress. I know
p. 409

p. 410

how to read an audience. They were with you. Charles will do it again
if he’s not locked up.”
Montrose takes her concerns to her boss, Burton Morgenstern,
the elected D.A. Summations are scheduled for the following
Monday, after Montrose calls one rebuttal witness on the footprint
evidence. She asks Morgenstern what she should do given her own
doubt. “What if anything at this stage do I or the office owe to

668
Prasad? To Charles? To the public? To the jurors who sat through the
trial? This trial has been in the news every day because of Prasad.”
Morgenstern says, “Viveka, forget burden of proof for a second.
Okay? That’s for the jury. Do you believe he did it?”
“Yes.”
“So if he’s convicted, you wouldn’t be convicting an innocent
man.”
“No.”
“And you agree that the evidence supports a conviction. The jury
might not have a reasonable doubt.”
“Yes.”
“Viveka, look, you’ve been here, what, a dozen years? You’ve tried
32, 33, felony cases, three this year. I picked you to head the street
crimes unit because you’re a good lawyer, but also because I trust
your sense of fairness. You know the case. I know only its outline. If
you want me to choose, I’ll read the trial transcript and do it, but I
trust you to make the right decision. By which I mean, whatever you
decide will be right. As far as the office is concerned, it’s okay to go
to verdict despite your doubt, and it’s okay to dismiss it.”
You are an office colleague and friend of Montrose, someone
whose judgment she trusts. “I know I can let it go to the jury,” she
says when you meet the next morning. “But my personal standard
has been not to indict where I have a reasonable doubt, even if the
proof could support conviction. Maybe that’s the wrong standard or
is wrong at this stage of the case. It substitutes me for an actual
jury. By now, maybe Prasad has a right to the verdict. Maybe the
jurors have a right to deliberate. If I dismiss, isn’t it like saying I don’t
trust them to do the right thing? This is no longer about starting a
prosecution.”

669
 During this conversation, McEvoy, the defense lawyer, calls.
“Charles,” he says, “will plead to an E felony with a recommendation
of three years. Is the offer still open?”
Advise Montrose.

Contributions to Justice
“My name is Florence Anselm. I’ve been the elected D.A. in
Clarendon County for 14 years. Last two times I ran, I had no
opposition. I run a nonpolitical office. I hire on merit and that’s also
how I make my decisions. The county seat is Ralston, where I have
my office. It’s a city of about 122,000, half of the county’s population.
A lot of what I do is

p. 410

p. 411

management, not law. I have 33 assistant prosecutors. We’re

stretched. Our budget, which we get from the state, is inadequate for
the job I’d like to do. I don’t think there’s a D.A. in my state (or maybe
any other) who doesn’t say the same. But we do our best.
“One of the biggest employers in the county is Extant
Technologies, which makes computer chips and other components.
Extant came into the county a dozen years ago, starting small, but it
grew as the demand for computers grew. It has a specialty niche I
don’t understand but it’s special enough to insulate it from Silicon
Valley competition. It pays good salaries and augments the tax base,
so all in all it’s been a real blessing.
“Two months ago, Sally Hendricks, who’s a partner at a leading
firm in the state and a lawyer for Extant, made an appointment to
see me because, she said, Extant believed that certain former
employees had stolen secret technology. Our penal law was

670
amended five years ago to cover such things. Sally gave me a four-
inch-thick file, the product of her firm’s investigation. Tell you the
truth, this is not what we’re used to dealing with. It’s not fingerprints,
ballistics, and lineups. We’ve only just gotten comfortable with DNA.
“I tried to read the file but I didn’t understand the half of it. A
couple of my assistants, the younger ones, understand more than I
do. But not enough more. The bottom line is we lack the resources to
prosecute this case. We don’t have the money to hire the experts
who can help us understand what happened and guide our
investigation or experts to testify if it goes to trial. Extant’s former
employees, the potential defendants, do have the money and
expertise and they’d run rings around us.
“I had another meeting with Sally and told her just that. She said
Extant realized this might be so and was prepared to do one of two
things, whichever we choose. It would make its personnel available
to walk us through the technology and testify at trial. Or it would give
us a budget to hire any qualified experts we picked to do the same.
Extant was quite concerned that failure to prosecute would only
invite additional thefts. Of course, I understand that. I said, ‘Let’s call
the Feds.’ Sally said she went to them first, which I could also
understand. The Feds said they would look at it when they could get
to it. We know what that means.
“ ‘Aren’t you in effect looking to privatize my office?’ I asked Sally.
I’ve known her a long time. She used to work for me.
“ ‘No, Florence, not at all,’ she said. You’ll make all the decisions —
no matter the help we give you. You’ll decide whether to charge at all,
what to charge, whether to offer a plea. We’ll just provide the
technical expertise. We don’t want you to reject this case because
you don’t understand the technology or can’t afford the experts.
Those would be the wrong reasons.’ I said I’d get back to her.

671
 “That brings me to my question. Can I accept either of Sally’s
offers?”

p. 411

p. 412

Self-Assessment Questions

1. Brickstone is a large private equity firm. It buys and sells companies.

Tony, the president of Brickstone, has learned that private plaintiffs
may sue Brickstone and other private equity companies, including
K.S.R., alleging that they had agreed not to bid against each other for
target companies. That would violate antitrust laws. Tony consults
you. He brings copies of two emails. In one, he wrote to others at
Brickstone to say that George, a principal of K.S.R., “just called to say
congratulations and that they were standing down [i.e., choosing not
to bid for a company Brickstone wanted] because he had told me
before they would not jump a signed deal of ours.” In an email to
George, Tony wrote that “[w]e would much rather work with you guys
than against you. Together we can be unstoppable but in opposition
we can cost each other a lot of money.” George replied, “Agreed.”
What advice do you give Tony about the emails? What else do you
do?*
2. In the prosecution of Kiplinger for selling opioids, the government
calls a scientist who testifies that a substance found in the
defendant’s home was an opioid. Unfortunately, the substance was
destroyed in testing so it was not possible for the defense to conduct
its own test. The scientist worked in a state crime laboratory. A year
earlier, he had been dismissed from a job in a different state’s crime
laboratory because in three cases his testimony about the

672
 composition of a controlled substance was shown to be inaccurate.
The defense lawyer knows this. An investigation in that other state
later concluded that the scientist was not merely sloppy, but may
have lied, and this further conclusion is contained in a written report.
However, the report was not yet public when the case was on trial
and Kiplinger’s defense lawyer was unaware of it. Kiplinger is
convicted. He moves to overturn his conviction citing the Brady line
of cases. Meanwhile, the state disciplinary committee opens an
investigation into whether the prosecutor violated Rule 3.8(d).
Analyze the issues in Kiplinger’s motion and the issues before the
disciplinary committee.

* This problem and the introductory note are drawn from Stephen Gillers, Guns, Fruits,
Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan.
L. Rev. 813 (2011).
# Real evidence offered at the criminal trials of Donald Trump may challenge that title or
come close. At this writing, we don’t know.
* The issues in the following pages are summarized at the end of part A.
* 192 N.E.3d 1034 (Mass. 2022).
* Even if it is not illegal to lie to the public, it may lead to discipline. See chapter 13D.
5. In each of the cases discussed in text, a crucial element in the court’s analysis is that the
attorney’s observations were the direct product of information communicated to him by his
client. Two decisions, People v. Lee, 83 Cal. Rptr. 715 (Cal. Ct. App. 1970), and Morrell v. State,
575 P.2d 1200 (Alaska 1978), held that an attorney must not only turn over evidence given him
by third parties, but also testify as to the source of that evidence. Both decisions emphasized
that the attorney-client privilege was inapplicable because the third party was not acting as an
agent of the attorney or the client.
7. We agree with the parties’ suggestion that an attorney in Schenk’s position often may
best fulfill conflicting obligations to preserve the confidentiality of client confidences,
investigate his case, and act as an officer of the court if he does not remove evidence located
as the result of a privileged communication. We must recognize, however, that in some cases
an examination of evidence may reveal information critical to the defense of a client accused
of crime. If the usefulness of the evidence cannot be gauged without taking possession of it,
as, for example, when a ballistics or fingerprint test is required, the attorney may properly take
it for a reasonable time before turning it over to the prosecution. Similarly, in the present case
the defense counsel could not be certain the burnt wallet belonged in fact to the victim: in

673
taking the wallet to examine it for identification, he violated no ethical duty to his client or to the
prosecution.
* Could he have returned the wallet to the burn barrel? He didn’t so the court did not have to
address that question. The argument that he could not return it would rely on the fact that time
had passed since the wallet was removed. In that time, the state would have been, and may
actually have been, unable to find the wallet in a search of the barrel. It would be different if the
wallet were examined at the scene and then left in the barrel.
# Most cases I read for the article cited on the second page of this chapter required a
lawyer either to return the evidence to the source or give it to authorities. A few cases did not
even allow return to the source.
* Should you encounter this issue in your work on a journal or in practice, you should know
that Nash is easily misread. The lead opinion of Justice Brickley looks like an opinion for the
court on all issues and it rejects Olwell. But on that issue, Brickley’s opinion is in the minority.
Four of seven justices wrote or joined concurring opinions that said the prosecutor could not
prove that the lawyer was the source of the evidence to support an inference that the client
was the lawyer’s source.
* Hernandez died by suicide in prison, age 27. His conviction was automatically vacated
because he died before his appeal was heard. An autopsy revealed a degenerative brain
disease ordinarily found in the elderly.
* Betty Tyson recognized the dynamic. In 1998 the New York Times reported:
Twenty five years to the day after her arrest in the strangulation death of a
businessman, Betty Tyson left the Bedford Hills [New York] Correctional Facility this
afternoon and headed home to Rochester a free woman, after the Monroe County
District Attorney announced that he would not seek a new trial.
Ms. Tyson’s murder conviction was overturned last week because a police report
was found to have been wrongfully suppressed at the time of her trial. The report
quoted a witness recanting information he had provided earlier implicating Ms.
Tyson.
When Tyson died in August 2023, her Times obituary by Sam Roberts contained her
understanding of what had happened to her:
“I feel that because I was Black, uneducated, naïve and a woman, I was very
vulnerable,” Ms. Tyson said in a 2004 interview with LaVerne McQuiller Williams of
the Rochester Institute of Technology that was published in the journal Women’s
Studies Quarterly in 2004. “I was uneducated, so why not take this bitch off the
street, and that’s what the police did. I was on the streets using drugs and selling my
body and I had a criminal record.”
* A Brady issue can arise during or before trial if the prosecutor’s turnover is too late to
enable the defendant to make adequate use of the information. United States v. Lee, 573 F.3d
155 (3d Cir. 2009).

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 † It is commonplace to say that prosecutors are rarely disciplined, at least not publicly, even
after a court finds a culpable failure to comply with Brady. Small cracks in that de facto near-
total immunity have surfaced in at least two states. In re Kurtzrock, 138 N.Y.S.3d 649 (App. Div.
2020), suspended a prosecutor for two years for Brady violations; and the Massachusetts
Supreme Judicial Court disbarred one prosecutor, suspended a second, and publicly censured
a third, all for Brady violations in the same case. In re Foster, 215 N.E.3d 344 (Mass. 2023).
Whether this is aberrational or a trend (and whether other states will respond similarly) cannot
yet be known. See also Emily Bazelon, “She Was Convicted of Killing Her Mother. Prosecutors
Withheld the Evidence That Would Have Freed Her,” N.Y. Times Magazine, Aug. 1, 2017, one
among the occasional media stories that describes a miscarriage of justice due to Brady
violations and the consequences (or lack of them) for the prosecutors.
* For an example of the demanding record review required to adequately evaluate a claim of
prejudice, see Juniper v. Zook, 876 F.3d 551 (4th Cir. 2017) (Wynn, J.) (reversing a trial court’s
finding of no prejudice in a capital case after an extensive review of the trial transcript).
* In one significant way, the Brady obligation is broader than Rule 3.8(d). Brady is violated
even when a prosecutor is ignorant of exculpatory information known to law enforcement. Rule
3.8(d), because it is a legal ethics rule that binds only lawyers, requires that the prosecutor
personally know the information.
* In January 2024, the Eleventh Circuit, reversing the district court, instructed it to decide if
Warren’s removal violated his First Amendment rights. Warren v. DeSantis, ___ F.4th ___ (11th
Cir. 2024).
* Although the consultation described in this problem is hypothetical, the lawsuit and the
quotes are real. William Alden, “K.K.R., Blackstone and TPG Private Equity Firms Agree to Settle
Lawsuit on Collusion,” N.Y. Times, Aug. 7, 2014.

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