Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Seeking Cash Bonuses and Convictions Could Pose a Conflict of Interest
Part Two of a Two Part Series

Part One of this series addressed the media attention given to the cash bonus program the District Attorney for the 18th District of Colorado, Carol Chambers, is offering her prosecutors who try at least five cases in a year and result in a 70% conviction rate.  Not surprisingly, the program ignited criticism and debate over its ethical implications.  Aside from seeming to harm public confidence in the criminal justice system, what about Chamber’s bonus program is legally improper?  It could pose a conflict of interest resulting in disqualification of Chamber’s prosecutors.

The law generally disfavors the disqualification of the prosecution, regardless of the jurisdiction.  For instance, in California, a prosecutor may not be recused “unless the evidence shows a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (Penal Code section 1424.)  What may seem like a conflict to the casual observer and what may harm public confidence simply will not result in disqualification unless there is a real likelihood that the defendant would not receive a fair trial.  In Colorado, the district attorney will only be disqualified when s/he “has an interest in the litigation apart from his professional responsibility of upholding the law.” (People v. Dist. Court (1975) 538 P.2d 887, 889.)  Just as in California, a showing of “mere partiality” is not enough in Colorado. (People v. C.V. (2003) 64 P.3d 272, 275.)

Under what circumstances will a prosecutor actually be disqualified?  One circumstance is if the prosecutor has a financial stake in the outcome of the case, and not surprisingly, there are no cases dealing with cash bonuses for convictions.  Notably, the Colorado Supreme Court was recently asked to determine whether Ms. Chamber’s office was properly disqualified because of $91,648.19 it received from the Department of Corrections for the prosecution of a defendant, who was charged with first degree murder while a prison inmate. (People v. Perez (2010) 238 P.3d 665.)  The Court found that a financial interest of a district attorney or her office is not a proper basis for disqualification unless the financial interest would render it unlikely that the defendant would receive a fair trial. (Id. at 671.)  In holding that the reimbursement was not grounds for disqualification, the Court stated that “the financial interest must be outcome dependent or have a substantial impact on the district attorney’s discretionary functions such that the district attorney’s conduct interferes with, is contrary to, or is inconsistent with her duty of seeking justice.”

Unfortunately, the Court in Perez failed to provide more analysis that might have shed light on the propriety of cash bonuses.   But, the reimbursement in Perez did not appear to be dependent on the outcome of the case whereas the cash bonuses are dependent on whether the five trials result in a 70% conviction rate, suggesting that the bonuses could pose a conflict of interest.

The California Supreme Court’s decision about the propriety of the government retaining private counsel to help prosecute civil public nuisance abatement actions on a contingent-fee basis provides further instruction.  In County of Santa Clara v. Superior Court (Atlantic Richfield Company et al.) (2010) 50 Cal.4th 35, the Court reaffirmed the fundamental importance of a prosecutor’s duty of neutrality and recognized that when a private attorney is acting as a government official, that attorney is held to the same heightened standard of ethical conduct applicable to prosecutors.  The Court specifically noted that “it is generally accepted that any type of arrangement conditioning a public prosecutor’s remuneration upon the outcome of a case is widely condemned” because it raises serious ethical and perhaps constitutional problems. (Id. at 51 [citations omitted].)  Likewise, private attorneys working on a contingency fee basis have a pecuniary interest in the outcome of the case and “have a conflict of interest that potentially places their personal interests at odds with the interest of the public and defendants....” (Id. at 58.)  The Court held that retaining private attorneys on a contingency-fee basis is not necessarily a problem as long as they are supervised by conflict-free, neutral government attorneys that retain the power to control the litigation. (Ibid.)

It is not difficult to imagine an 18th District prosecutor assessing how his/her discovery analysis, plea negotiations, or trial presentation would impact the ability not only to obtain a conviction but also the ability to get a year-end bonus.  How is a bonus based on whether one gets a guilty verdict not a personal and financial interest in the outcome of the case?  Is it any different from a contingency fee?  In light of Perez and Atlantic Richfield Company et al., Chamber’s bonus program puts the very conviction rate she aims to increase at risk by placing a potential and unnecessary conflict of interest in the laps of her prosecutors.

--Bryn Kirvin

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**