April 3, 1974
Ethics Opinon 1974-8
SUBJECT: PUBLIC CRITICISM OF SENTENCE
A local deputy prosecuting attorney is quoted in a local newspaper of general circulation subsequent to sentencing of a defendant following a guilty plea as being critical of a recommendation by the State Department of Corrections and of the sentence imposed. Is such criticism unethical?
The prosecutor's public criticism, as reported, was not unethical.
It is the lawyer's obligation to maintain the highest standards of ethical conduct. But within the framework of ethical principles he must be able and ready to shape the body of the law to the ever changing relationships of society. A.B.A. Code, Preamble.
The code is replete with proscriptions on activity and comment while a matter is still pending:
a. There should be no extrajudicial communication with veniremen "prior to trial" or with jurors "during trial".
b. News or comments may prevent "prospective" jurors from being impartial at the "outset of the trial." EC 7-33.
c. Release of out of court statements regarding "anticipated" or "pending" trial may improperly affect the impartiality of the tribunal. EC 7-33.
d. Should generally not communicate with a judge regarding a matter "pending before" or which is "to be brought" before a tribunal over which he presides. EC 7-35.
e. A lawyer shall not "from the time of filing" a criminal matter until "commencement of the trial or the disposition" participate in certain extrajudicial statements. DR 7-107(B).
f. A lawyer associated with "investigation" of a criminal matter shall not make certain extrajudicial statements. DR 7-107(A).
g. "During the selection of a jury or the trial" a lawyer in a criminal matter shall not make certain extrajudicial statements. DR 7-107(D).
h. "After the completion . . . and prior to the imposition of sentence" in a criminal matter a lawyer shall not make certain extrajudicial statements. DR 7-107(E).
i. A lawyer associated with a civil action shall not "during its investigation or litigation" make certain extrajudicial statements. DR 7-107(G).
j. "During the pendency" of an administrative proceeding, a lawyer should not make certain extrajudicial statements. DR 7-107(H).
k. "Before the trial" a lawyer connected therewith shall not communicate with a member of the venire from which the jury will be selected. DR 7-108(A).
l. "During the trial" a lawyer connected therewith shall not communicate with a juror. DR 7-108(B)(1).
m. "During the trial" a lawyer not connected therewith shall not communicate with a juror regarding the case. DR 7-108(B)(2).
n. In an adversary proceeding, a lawyer shall not communicate as to the merits with a judge or an official before whom the proceeding "is pending" except as authorized. DR 7-110(B).
o. The trial court should not have its work made more difficult by any dissemination of statements to the public that would be calculated to create a public demand for a particular result in a "prospective or pending" case. A.B.A., Opinion 199 (1940).
p. There should be no extrajudicial communication with veniremen "prior to" trial or with jurors "during" trial by the lawyer connected with the case. EC 7-29.
q. Release by a lawyer of out-of-court statements regarding "an anticipated or pending" trial may improperly affect the impartiality of a tribunal. EC 7-33.
While the foregoing examples are by no means all-inclusive, they do indicate a deep concern regarding comment which may influence the outcome of a pending matter. Nowhere, however, does the Code contain any express proscriptions on comment after conclusion of a matter, civil or criminal. To the contrary, certain comment subsequent to conclusion is expressly permitted while other comment appears permitted by implication:
a. "After discharge" of the jury a lawyer may confer with jurors and is limited only in the extent of his comments. DR 7-108(D).
b. "After the trial" communication by a lawyer with jurors is permitted within certain limits. EC 7-29.
c. Were a lawyer to be prohibited from communicating "after trial" with a juror, he could not ascertain if the verdict might be subject to challenge. EC 7-29.
d. A lawyer does have the right to criticize adjudicatory officials publicly so long as he is certain of the merit of his complaint, uses appropriate language, and avoids petty criticisms. EC 8-6.
e. A lawyer shall not knowingly make false accusations against a judge. DR 8-102(B).
f. Courts are not immune to criticism. Konigsberg v. State Bar of California, 353 U.S. 252, 269 (1957).
g. Every lawyer will refrain from unjustified attacks on the character of judges. Kentucky State Bar v. Lewis, 282 S.W.2d 321, 326 (KY. 1955).
With specific reference to public prosecutors, the Code specifies very little. DR 7-103(a); DR 7-103(B). Also see Professional Responsibility: Report of the Joint Conference, infra, p. 1218; A.B.A. Opinion No. 150 (1936).
There is a duty imposed on all lawyers, both public and private, to try to improve the legal system:
a. Constant efforts are necessary to maintain and improve our legal system. Lawyers are especially qualified to recognize deficiencies in the system and to initiate corrective measures. EC 8-1.
b. Legal procedures should be improved whenever experience indicates a change is needed. EC 8-2.
c. Lawyers should encourage needed changes and improvements. EC 8-9.
d. The lawyer concerned for his profession will interest himself actively in the improvement of the law. There are few great figures in the history of the Bar who have not concerned themselves with the reform and improvement of the law. Professional Responsibility: Report of the Joint Conference, 44 ABAJ 1159, 1217 (1958).
Lawyers may not, however, engage in public solicitation of business or in the making of remarks intended primarily to extol the personal virtues of the lawyer.
a. A lawyer shall not use any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients. DR 2-101.
b. A lawyer shall not publicize himself commercially or permit others to do so. DR. 2-101(B).
c. A lawyer shall not advise inquirers or render opinions to them through any publicity medium. B & P Code Sec. 6076, Rules of Professional Conduct of the State Bar of California, Rule 18.
d. Also see A.B.A. Informal Opinions No. 854, 479, 548.
e. The motive of the lawyer is always the important factor. A.B.A. Informal Opinion No. 546.
Applying the above principles to the question presented it is concluded that the prosecutor's post-sentencing comments cannot be construed, per se, to be unethical. Although comment regarding a pending matter is proscribed, it is clear that this matter was no longer pending. Analysis of specific considerations regarding prosecutors furnishes no additional guidelines. It can reasonably be concluded that the prosecutor was merely expressing a concern regarding what he regarded as lenient sentencing procedures. There is no indication that he made any specific remarks regarding the sentencing judge, but merely regarding the type of sentence. There is no indication that he had any motive of personal publicity calculated to attract lay clients; such a motive would be difficult to impute to a public prosecutor.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: Effective 1/1/75, California Rule 18 has been superseded by Rule 2-105.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.