State Bar of California Board of Trustees Postpones Consideration of Creating New Rule of Professional Conduct Concerning Campaign Contributions and Prosecutorial Conflicts

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By Kirstin Jensvold-Rumage

 On January 22, 2021, the State Bar of California Board of Trustees voted to defer creation of a new Rule of Professional Conduct or Ethics Opinion related to law enforcement unions’ financial contributions to prosecutorial campaigns, and instead monitor proposed legislation before taking any action. At the meeting, staff provided the Board with the Committee on Professional Responsibility and Conduct’s (COPRAC) analysis and presentation of four options for the Board’s consideration pertaining to a June 1, 2020 letter requesting that the Bar create a new Rule of Professional Conduct or issue an Ethics Opinion precluding elected prosecutors or those seeking election from seeking or accepting campaign contributions from law enforcement unions. As highlighted in the letter, which was sent by Diana Becton of Contra Costa County, Chesa Boudin of San Francisco County, Tori Verber Salazar of San Joaquin County, and former district attorney of San Francisco County, George Gascón, the request comes in the wake of the 2020 officer-involved killings of Breyonna Taylor and George Floyd, and the delayed prosecution of the killers of Ahmaud Arbery. On Twitter, the #CureTheConflict hashtag highlights much of the discussion about police union contributions to district attorney campaigns in California.

On August 11, 2020, after the Chair and Vice Chair of the Board referred the matter to COPRAC, the Committee hosted a public hearing via Zoom, seeking public comment on the proposed rule or ethics opinion. COPRAC provided a list of questions asking commenters to offer their own knowledge or expertise, including data or studies on how large these campaign contributions are, and why other conflict of interest Rules are inadequate in addressing the problem.

Interim Executive Director Donna Hershkowitz and other commenters voiced constitutional concerns, pointing out that a rule prohibiting campaign contributions from a class of donors might constitute a restriction on political or viewpoint-based speech under the First Amendment to the United States Constitution and article I, section 2 of the California Constitution.

Commenters in favor of the rule change included the Earl B. Gilliam Bar Association, who pointed out that law enforcement unions contributing to campaigns “creates, at a minimum, the appearance of a conflict of interest for elected prosecutors.” The Queen’s Bench Bar Association noted that if a prosecutor initiates an investigation or prosecution against an officer, the law enforcement union often finances the officer’s legal representation, creating a conflict of interest. One public commenter supporting rule changes offered that while a written endorsement is acceptable, a financial contribution creates a conflict as the District Attorney may feel indebted to the payor.

Opponents of the rule change included California Attorney General, Xavier Becerra, who noted that precedent on prosecutorial bias almost always has concerned situations “in which the prosecutor had a personal interest or been claimed to be under the influence of a private party with a personal interest in the prosecution….” Other commenters noted that the rule change is “a flawed attempt to stifle opposing viewpoints and chill political discourse” and pointed out that District Attorneys are bound by prosecutorial ethics and make charging decisions based on fact and law.

As the Committee points out in its memo, after COPRAC’s August 11 hearing, the legislature signaled its own intent to address this issue. Specifically, on September 30, 2020, the governor signed AB 1506 (McCarty) (Chapter 326, Statutes of 2020), which amended Government Code section 12525.3 to establish a division within the California Department of Justice to review, upon agency request, the law enforcement agencies’ use-of-force policies, and require state prosecutors to investigate incidents of officer-involved shootings resulting in the death of an unarmed civilian. Additionally, on October 22, 2020, Assemblymember Rob Bonta announced plans to introduce legislation that would prohibit elected prosecutors from investigating police misconduct if they have accepted campaign contributions from police unions representing the accused officer. According to the press release, the proposed bill would be sponsored by the Prosecutors Alliance of California, whose executive committee includes the four DAs who submitted the proposed rule of professional conduct to the State Bar.

Ultimately the Board followed staff’s recommendation and voted to adopt COPRAC’s Option 3, which proposed that the Board defer action on proceeding with a new Rule or Opinion, in light of these legislative developments. At this writing, Assemblymember Bonta has not yet introduced the legislation.  The deadline for introducing bills is February 19, 2021.

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