By Zoe Tillman, From Legal Times,

A former federal prosecutor in Washington violated his ethical obligation to turn over information to defense lawyers, an appeals court ruled this week. But the court did not impose sanctions, citing earlier confusion about how to interpret the ethics rules.

The District of Columbia Court of Appeals adopted a new, stricter ethical standard for prosecutors in a 33-page opinion released on Thursday. The court held that under D.C. ethics rules, a prosecutor could face disciplinary action for failing to turn over potentially favorable information to the defense even if that information wouldn’t have affected the outcome of the trial.

The judges found that former assistant U.S. attorney Andrew Kline violated the local ethics rules under the interpretation the court adopted in Thursday’s opinion. The three-judge panel ordered no sanctions, however, rejecting a recommendation by attorney discipline officials to suspend him for 30 days. Kline teaches in American University’s Department of Public Administration and Policy.

Chief Judge Eric Washington, writing for the panel, drew a distinction between a prosecutor’s ethical obligations and his or her constitutional duties under the U.S. Supreme court’s 1963 opinion in Brady v. Maryland. Under later court interpretations of the Brady opinion, a prosecutor could only be found in violation of his or her Brady obligations if the evidence at issue was material to the outcome of the trial.

“The question of whether and, if so, when a prosecutor’s ethical and constitutional duties to disclose potentially exculpatory information to a defendant intersect continues to be a topic of much debate throughout the country,” Washington wrote. “It is unquestionable, however, that constitutional protections in the criminal context serve a fundamentally different purpose than disciplinary proceedings in the ethical context.”

The court said it hoped that adopting a rule in favor of increased disclosures from prosecutors “will better ensure that criminal defendants in the District of Columbia receive a fair trial.”

Forcing judges to decide whether certain information might have affected the outcome of a trial “can undermine the public’s trust and confidence in the courts because they are not being made by a jury of one’s peers but by a court that is sitting and reviewing a cold record,” Washington wrote.

Kline’s lawyer, Seth Rosenthal of Venable, said in an email that Kline was “obviously gratified that the court wiped out any sanction and found he did not act dishonestly.” Rosenthal also praised the court’s new interpretation of the ethics rules.

“We are nonetheless closely reviewing whether it’s consistent with due process for the court to announce a brand new ethical obligation and then apply it retroactively to Andrew,” Rosenthal said. “If, as the court itself found, the meaning of the rule at issue was too muddled until now to warrant sanctioning Andrew, it is hard to see how it was sufficiently clear to put Andrew on notice that his alleged actions 13 years ago violated it.”

Wallace Shipp Jr., who heads the Office of Bar Counsel, which prosecuted the ethics case against Kline, said he was “glad that we have an opinion that clarifies the responsibilities of a prosecutor.

“I hope every prosecutor who’s a member of the D.C. Bar reads the opinion and takes the court’s concern to heart,” Shipp said.

It wasn’t immediately clear how the ruling will be reflected in Kline’s bar record. The court’s decision—no sanction ordered despite a finding that Kline violated an ethics rule—was largely without precedent, according to Shipp.

A spokesman for the U.S. attorney’s office in Washington, which did not represent Kline but filed a brief in support of a narrower interpretation of the local ethics rule, said they were reviewing the opinion.

The Public Defender Service for the District of Columbia submitted a brief arguing for the broader disclosure obligations under the local ethics rules that the court adopted. James Klein, chief of the office’s appellate division, declined to comment.

As an assistant U.S. attorney in the early 2000s, Kline was accused of failing to turn over notes about a police officer’s interview with the victim of a shooting. Kline’s notes, according to court records, indicated that the victim told the officer he didn’t know who shot him. Another prosecutor assigned to the case after Kline provided the notes to counsel for the man charged in the shooting. The defendant was ultimately convicted.

Kline maintained he didn’t believe the notes qualified as Brady evidence. He said he believed that his disclosure obligations only required him to turn over information that fell under the Brady standard. Another prosecutor who ran Brady training at the time testified that while disclosure of the information “would have been prudent,” Kline’s training at the U.S. attorney’s office wouldn’t have put him on notice that the local ethics rules required him to turn over evidence that didn’t meet the Brady standard.

The D.C. appeals court found that it made “little common sense” to base a violation of an ethics rule on any effect the rule might have on the outcome of a trial.

“[E]thical rules are designed to guide behavior, whereas appellate review of criminal cases is to ensure, after the fact, that a criminal defendant has received a fair trial,” Washington wrote. “We see no logical reason to base our interpretation about the scope of a prosecutor’s ethical duties on an ad hoc, after the fact, case by case review of particular criminal convictions.”

Judges Stephen Glickman and Phyllis Thompson also heard the case. If Kline decided to challenge the opinion, he could ask the panel for a rehearing or petition for a full sitting of the appeals court to hear the case.

IMAGE: Andrew Kline. Photo: John Harrington

For more on this story go to: http://www.nationallawjournal.com/legaltimes/id=1202723176518/DC-Court-No-Sanctions-for-Former-Prosecutor-Who-Violated-Ethics-Rule#ixzz3XCsNXgxn