Were These Rules Meant To Be Broken?
We believe that Mr. Alfredo Terrazas has violated his ethical duties and the following Rules.
Published by the California District Attorneys Association
IV. The Ethical Duties of Prosecutors
(emphasis ours)
In administering justice, a prosecutor must abide by a strict code of ethics. A prosecutor must always strive to discover the truth while carrying out all official duties. Furthermore, a prosecutor must "keep abreast of the law and strive to improve the legal profession." (Professionalism Manual, CDAA, 1999). Additionally, the prosecutor must exercise the utmost professionalism as he or she is in the position of demonstrating ideal social behavior for others to follow.
At any level, the primary role of the prosecutor is to "investigate and prosecute impartially" criminal suspects on behalf of the People. Prosecutors should prosecute with "earnestness and vigor" while employing only "legitimate investigative techniques" to ensure that "guilt shall not escape or innocence suffer." (Berger v. United States (1935) 295 U.S. 78, 88.)
In carrying out their duties, prosecutors are required to follow statutory regulations imposed on them by California's Business and Professions Code § 6068 (a)-(d). These duties include upholding the federal and state constitutions and laws; respecting courts of justice and judicial officers; maintaining only such actions as appear to be legal or just; and employing only such means as are consistent with the truth and never seeking to mislead a judge or judicial officer.
California Rules of Professional Conduct
Rule 5-200. Trial Conduct
In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and
(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.
We believe that Mr. Alfredo Terrazas violated also the following formal opinions by the State Bar of California Standing Committee on Professional Responsibility and Conduct, which we are asking you to uphold:
Rule 3.4(b) of the ABA Model Rules of Professional Conduct:
"a lawyer shall not . . . falsify evidence, counsel or assist a witness to testify falsely . . . ."
The ethical duty to tell the truth is reflected in section 6068 (d) which provides:
It is the duty of an attorney: “ To employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. (Bus. & Prof. Code, sec. 6068, subd. (d).)
The concealment of material information is as misleading as an overtly false statement. (See Griffis v. S.S. Kresge (1984) 150 Cal.App.3d 491, 499.)”
§ FORMAL OPINION NO. 1996-146
Rule 5-200 states, in part, that, in presenting a matter to a tribunal, a member:
(B) Shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional . . . .
In addition to these rules, Business and Professions Code section 6128 (a) provides that every lawyer is guilty of a misdemeanor who "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party."
* * *
The Supreme Court has defined moral turpitude as "[a]n act contrary to honesty and good morals." (See Kitsis v. State Bar 23 Cal.3d 857, 865 [153 Cal.Rptr. 836]
In the Ethics Hotliner of the State Bar of California, Misconduct / Moral Turpitude is covered at www.calbar.org/2eth/3hotline/ethics_watch.htm#misconduct
MISCONDUCT / MORAL TURPITUDE
Citing subdivisions (b), (c), and (d) of Business and Professions Code section 6068 and rule 5-200(B) of the Rules of Professional Conduct, the Court of Appeal stated: " ' "Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense." ' [Citations.]'Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.' [Citation.]" (Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 980, italics in the original.) According to the court, "once the attorney realizes that he or she has misled the court, even innocently, he or she has an affirmative duty to immediately inform the court and to request that it set aside any orders based upon such misrepresentation; also counsel should not attempt to benefit from such improvidently entered orders." (Ibid.)