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Commonwealth of Massachusetts

March 1999



by Arnold R. Rosenfeld, Bar Counsel


    Shortly after the adoption of the Mass. Rule of Professional Conduct, the Supreme Judicial Court asked its Standing Advisory Committee on Criminal Rules to analyze whether these new rules obviated the need for Supreme Judicial Court Rule 3:08, the Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Counsel, which have been in effect since 1979. The Standing Advisory Committee on Criminal Rules submitted recommendations to the Standing Advisory Committee on the Rules of Professional Conduct, which proposed some rule changes to the Supreme Judicial Court. Effective January 1, 1999, the Court issued an order formally eliminating its Rule 3:08, the Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Counsel. In their place, the Court adopted some "housekeeping" changes. The changes in the new rules and the "housekeeping" changes read together make some fundamental alterations to ethical responsibilities of lawyers on both sides of a criminal case. This column will review the duties of a prosecutor under the new rules. The second, next month, will discuss the changes which affect defense counsel in criminal cases.


    The principal rule governing the duties of a prosecutor in a criminal case is Mass. R. Prof. C. 3.8. This rule replaces the prior rule, DR 7-104, as well as many of the provisions of the prosecution function that were described in the PF’s of Rule 3:08. Moreover, Mass. R. Prof. C. 3.8 adds new ethical duties for the prosecutor. An analysis of this rule follows:

    A. Mass. R. Prof. C. 3.8 (a) and (d) replace what was previously contained in DR 7-104, PF 6, and PF 7. These provisions require that a prosecutor refrain from proceeding with a charge which the prosecutor knows is not supported by probable cause and make timely disclosure of exculpatory evidence or mitigating information to defense counsel. This latter duty is in addition to that required by the Massachusetts Rules of Criminal Procedure 14(a)(1)(C) and (a)(4).

    B. Mass. R. Prof. C. 3.8 (b) and (c) are new sections dealing with the prosecutor’s duty with regard to the advice as to the right to counsel and waiver of rights by a pro se defendant. These sections deal with similar issues as were covered in PF 8(a), although the new rule is more specific about the prosecutor’s duty. Now the prosecutor, in addition to the court, is required to insure that reasonable efforts are made to advise a defendant of the right to counsel and to make counsel available to those who desire counsel (section b). On the other, the prosecutor is admonished not to seek from an unrepresented accused a waiver of rights until a court first has obtained from the accused a knowing and intelligent waiver (section c). This latter duty is aimed particularly at situations where the judge directs the prosecutor to discuss the case with a pro se accused before a colloquy with the accused is completed by the court. In these instances, prosecutors are required to remind the court that the colloquy and waiver must occur first.

    C. Mass. R. Prof. C. 3.8(e) describes a prosecutor’s duty to oversee persons from law enforcement and other agencies working on a case. This particular section, which alludes specifically to the lawyer’s duty pursuant to Mass. R. Prof. C. 3.6, regarding trial publicity, should be read in conjunction with Mass. R. Prof. C. 5.3(b) and (c), which requires that a lawyer (prosecutor) having direct supervisory authority over a nonlawyer to make reasonable efforts to insure that the employee’s conduct is compatible with the Rules of Professional Conduct and makes the prosecutor responsible for the employee or the person’s conduct if the prosecutor orders of has knowledge of the specific misconduct and ratifies it.

    D. Mass. R. Prof. C. 3.8(f), the rule regulating subpoena of defense counsel, replaces and augments what was previously PF 15. Under PF 15, a prosecutor only was required to obtain prior judicial approval prior to subpoenaing a lawyer before a grand jury in circumstances where the prosecutor sought to compel the lawyer to provide evidence about a person whom the lawyer represented. The new rule sets up a two step process to be followed in order to subpoena a defense counsel: (1) the prosecutor must reasonably believe that the information sought is not protected from disclosure by an applicable privilege; that the evidence sought is essential to the investigation or prosecution; and there is no other feasible alternative for obtaining the information. (2) Once these requirements are met, then the prosecutor may seek judicial approval for subpoena, but only after the opportunity for an adversarial hearing.

    E. Mass. R. Prof. C. 3.8(g) supplements Mass. R. Prof. C. 3.6. This rule deals with a subject not covered by Rule 3.6, which deals solely with the issue of public statements by lawyers (including prosecutors) intended to improperly influence a jury. This section specifically prohibits statements by a prosecutor which are intended to create the possibility of public condemnation of the accused.

    F. Mass. R. Prof. C. 3.8(h) and (i) replace DR 7-106(C)(3) and (4) respectively. These rules prohibited a lawyer from asserting personal knowledge of the facts, (See, also, Mass. R. Prof. C. 3.4 (e), which places this same duty on all lawyers) and from asserting the prosecutor’s personal opinion of the justness of the cause, or the credibility of the witness, or the guilt or innocence of the accused. .However, this rule does not prohibit a prosecutor from arguing inferences that can be drawn from the facts and evidence.

    G. Mass. R. Prof. C. 3.8 (j), a new section added in January, 1999, replaces PF 7(b) from Rule 3:08. It requires that a prosecutor not intentionally avoid pursuit of evidence because the prosecutor believes it will damage the prosecution case or aid the accused.


    A. There are several sections in the PF’s which now are included within Mass. R. Prof. C. 3.3 and, in some instances, within the scope of Mass. R. Prof. C. 8.4(c), (d), and (h). For example, PF 1 included a provision that it was unprofessional conduct for a prosecutor intentionally to misrepresents facts or law to a court. PF 2 prohibited a prosecutor from intentionally misrepresenting facts to obtain a continuance. PF 12 prohibits knowingly offering false evidence.

    B. Many of the other prohibitions which were previously in the PF’s now can be found in Mass. R. Prof. C. 3.4, Fairness to Opposing Party and Counsel. For example, PF’s 1-5 all, in one form or another, fall within the scope of duties set out in Mass. R. Prof. C. 3.4. Rule 3.4(f) prohibits interfering with a party’s giving information to another party, except under certain circumstances (Compare PF 3(b)). Rule 3.4 (g) deals with the issue of compensation of witnesses (Compare PF 4 & 5)

    C. What previously was prohibited by PF 8(b), making it unprofessional conduct for a prosecutor to make false statements or representations in the course of plea discussions with defense counsel or the accused now is prohibited by Mass. R. Prof. C. 4.1, Truthfulness in Statements to Others.

    D. Mass. R. Prof. C. 3.5, Impartiality and Decorum of the Tribunal places other burdens on a prosecutor that previously were included in the PF’s. For example, the second paragraph in PF 1 prohibited ex parte discussions with a judge (Compare 3.5(b)); PF 10 prohibited a prosecutor from communicating privately with a person summoned for jury duty or a juror (compare 3.5(a) and (d)).

    E. Finally, prosecutors should carefully examine Mass. R. Prof. C. 8.4, which regulates misconduct generally and which also contains prohibitions against dishonesty, fraud, deceit, and misrepresentation (Rule 8.4(c)); conduct that is prejudicial to the administration of justice (Rule 8.4 (c); and conduct that adversely reflects on one’s fitness to practice law (Rule 8.4(h)).


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