4229 Main Street, Suite 2, Riverside, CA 92501: Board of Directors President

4229 Main Street, Suite 2, Riverside, CA 92501
www.RCCDBA.org | [email protected]
Board of Directors
Chair Alan Steinbrecher
President
Graham D. Donath
Director Donna Hershkowitz
The State Bar of California
Vice President
Aimee Vierra
180 Howard Street
San Francisco, CA 94105
Treasurer
Peter J. Morreale
August 8, 2020
Secretary
Paul Leonidas Lin
Re: Comments on Proposed Rule of Professional Conduct or Ethics Opinion
Members-at-Large regarding Prosecutorial support by Law Enforcement Unions.
Charles Gorian
To Chair Alan Steinbrecher and Interim Executive Director Donna Hershkowitz:
On behalf of the Riverside County Criminal Defense Bar Association, a

recently formed organization that has already amassed 148 criminal defense
attorneys practicing in Riverside County, we write to urge the State Bar to adopt a
new rule of professional responsibility to reduce the possibility that law-enforcement
unions will exert, or will be perceived as exerting, political influence over
prosecutorial decision making.
Across California, including in Riverside, there are dozens of law-enforcement

unions representing rank-and-file police officers, sheriff’s deputies, and correctional
officers. These unions play a major role in local, state, and even national politics.
They are well-funded and purport to represent the interests and positions of law
enforcement in elections and on issues before the voters and the legislature. Their
political endorsements are provided only to candidates whom they believe share
their particular vision of public safety and whom they believe will advance their
interests. When the unions endorse a candidate, they often also provide financial
support to that candidate.
Prosecutors are in a unique position of having to work closely with law-

enforcement officers and to evaluate whether some of those same officers have
committed crimes. When a prosecutor initiates an investigation or prosecution of an
officer, law-enforcement unions often finance their members’ legal representation.
Yet the same unions may have contributed to the prosecutor’s campaign.
This is worse than unseemly: it corrodes public trust in an institution whose

legitimacy hinges on the public’s trust in its fairness and impartiality. Prosecutors,
like judges, are charged with public duties that transcend those of ordinary
advocates; and it is therefore of paramount importance that the public trusts
prosecutors to carry out those duties fairly and impartially. A prosecutor is the
1
Riverside County Criminal Defense Bar Association
“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 (1935) 295 U.S. 78, 88.) “The
prosecutor is an administrator of justice, an advocate, and an officer of the court”;
she “must exercise sound discretion in the performance of his or her functions”; and
her duty “is to seek justice, not merely to convict.” (ABA Criminal Justice Standards:
Prosecution Function, Standard 3-1.2, subds. (b) & (c).) Because a prosecutor
exercises vast discretion when deciding whether to investigate, whether to charge,
and how to charge, she “should have, as nearly as possible, a detached and impartial
view of all groups in his community.” (Robert H. Jackson, “The Federal Prosecutor,”
speech delivered at the Second Annual Conference of United States Attorneys, Great
Hall, Department of Justice Building, Washington, D. C., April 1, 1940.1)
Receiving endorsements and campaign contributions from unions that

finance opposing counsel creates, at a minimum, the appearance of a conflict of
interest for elected prosecutors. District Attorneys undoubtedly will review use-of-
force incidents involving union members. When they do, the financial and political
support of those unions should not influence, or appear to influence, the District
Attorneys’ decision making.
The State Bar’s Rules of Professional Conduct generally prohibit a lawyer

from representing a client when, “the lawyer has ... a legal, business, financial,
professional, or personal relationship with or responsibility to a party or witness in
the same matter” (California Rules of Professional Conduct, rule 1.7, Conflict of
Interest [2018]). Further, the California Court of Appeal has found that “a ‘conflict,’
for purposes of California Penal Code § 1424, ‘exists whenever the circumstances of a
case evidence a reasonable possibility that the DA’s office may not exercise its
discretionary function in an evenhanded manner.” (People v. Vasquez (2006) 39
Cal.4th 47, 74, fn.2 [italics omitted.].) Thus, there is no need to determine whether a
conflict is “actual” or only gives an “appearance” of conflict. Similarly, the American
Bar Association’s conflicts-of-interest rules provide that “a prosecutor who has a
significant personal, political, financial, professional, business, property, or other
relationship with another lawyer should not participate in the prosecution of a
person who is represented by the other lawyer.” (Am Bar Assn. Criminal Justice
Standards for the Prosecution Function, Standard 3-1.7, subd. (h), Conflicts of
Interest [2017].)
These rules and decisions ostensibly were crafted to avoid the conflict, or the
appearance of a conflict, that arises when an attorney or prosecutor has a political or
financial relationship with opposing counsel. 1 They suggest that an elected
prosecutor either should avoid soliciting financial contributions and support from an
attorney representing an accused officer, or should recuse their office from a
prosecution where the prosecutor has received financial or political support from
such an attorney.
1
https://www.justice.gov/sites/default/files/ag/legacy/2011/09/16/04-01- 1940.pdf.
2
But these rules do not preclude the attorney or prosecutor from soliciting or
receiving financial support from an individual or organization that is financing
opposing counsel. It is illogical that the rules prohibit a prosecutor from soliciting
and benefiting from financial and political support from an accused officer’s
advocate when the prosecutor is carrying out his duties, but enable the prosecutor
when campaigning to benefit financially and politically from an entity that funds the
accused’s advocate.
To cure this conflict, or the appearance of conflict, and to maintain public

confidence in the fairness and impartiality of prosecutors, ethical rules must
explicitly preclude elected prosecutors, prosecutors seeking election, and their
campaign committees from seeking or from accepting political or financial support
from law-enforcement unions. Such a rule would not only help to avoid conflicts and
ensure the independence of elected prosecutors, it also would enhance trust in our
criminal-justice system at a time when trust is sorely needed. And the rule would
survive First Amendment scrutiny, as it is narrowly tailored to further the state’s
compelling interest in maintaining public confidence in the integrity of prosecutors.
(Cf. Williams-Yulee v. Florida Bar (2015) 575 U.S. 433 [upholding state ethical ban
on personal campaign solicitations by judicial candidates.]).
Whether the State Bar takes action in the form of a new rule of professional
conduct or an ethics opinion, our goal is the same: to protect the integrity of the
prosecutorial function, the fair administration of justice, and restore public trust in
law enforcement. Given the urgent national situation, we request an expedited
review of this request. We appreciate your consideration of this time-sensitive and
important matter.
Sincerely,
Graham D. Donath, President


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4229 Main Street, Suite 2, Riverside, CA 92501

To Chair Alan Steinbrecher and Interim Executive Director Donna Hershkowitz:

On behalf of the Riverside County Criminal Defense Bar Association, a

Across California, including in Riverside, there are dozens of law-enforcement

Prosecutors are in a unique position of having to work closely with law-

This is worse than unseemly: it corrodes public trust in an institution whose

“representative not of an ordinary party to a controversy, but of a sovereignty whose

Receiving endorsements and campaign contributions from unions that

The State Bar’s Rules of Professional Conduct generally prohibit a lawyer

To cure this conflict, or the appearance of conflict, and to maintain public

Graham D. Donath, President

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