The Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on proposed advisory Legal Ethics Opinion 1888: Prosecutor’s duty to disclose evidence that tends to negate the guilt of the accused; and on proposed revisions to LEO 1750: Advertising Issues. Comment deadline: November 3, 2017.
Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1888: Prosecutor’s duty to disclose evidence that tends to negate the guilt of the accused.
This proposed opinion addresses a situation where a prosecutor receives 200 hours of recorded jail calls involving a defendant who is being prosecuted for strangulation, abduction, and domestic assault and battery. In one of those calls, the defendant asks the victim if she understands that he “didn’t do it,” and she says “yeah” in response. The question presented is whether the prosecutor fulfills her duty under Rule 3.8(d) by merely providing the recording of all the calls to the defense lawyer, or whether she is required to specifically identify the conversation where the victim acknowledges that the defendant “didn’t do it”?
In the proposed opinion, the Committee concludes that once the prosecutor knows about the conversation, which tends to negate the guilt of the defendant, she must specifically identify that conversation to the defendant as possibly exculpatory information. “Disclosure” of evidence means more than merely making the evidence available to be found; under the facts presented in this hypothetical, it requires identifying the specific evidence that the prosecutor knows tends to negate the guilt of the defendant. The prosecutor does not provide disclosure in any meaningful way if she merely turns over a large volume of material and implicitly tells the defense lawyer to “go fishing” for whatever exculpatory evidence can be found somewhere in the material.
Rule 3.8(d), and therefore the conclusion of this proposed opinion, applies only when the prosecutor actually has knowledge of the evidence that tends to negate the guilt of the accused. If the prosecutor has not reviewed the recordings, and therefore does not know what is contained in them, she has no obligations under Rule 3.8(d).
Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on revisions to Legal Ethics Opinion 1750, Advertising Issues.
The Committee has proposed revisions to LEO 1750, a compendium opinion on advertising issues, in light of the significant updates to Rules 7.1 and 7.3 which took effect on July 1, 2017. Throughout the opinion, references to the Rules of Professional Conduct have been updated with the current “false or misleading” language of Rule 7.1, and references to since-withdrawn or modified LEOs have been removed or updated. Other revisions to the opinion include:
Inspection and Comment
The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0026, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at (804) 775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org.
Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed opinion with Karen A. Gould, Executive Director of the Virginia State Bar, not later than November 3, 2017. Comments may be submitted via email to email@example.com.Updated: Sep 22, 2017
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