skip navigation
search

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

III. ADVOCATE

3.1 Rule 3.1 Meritorious Claims and Contentions

3.1:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.1
  • Background References: ABA Model Rule 3.1, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.1:101   Model Rule Comparison

ARPC Rule 3.1 and the model rule are substantially similar. However, the Alabama rule states that a lawyer cannot bring an action or use a tactic "merely to harass or maliciously injure another," while the model rule references frivolous actions.

3.1:102   Model Code Comparison

Inapplicable.

3.1:200 Non-Meritorious Assertions in Litigation

  • Primary Alabama References: AL Rule 3.1
  • Background References: ABA Model Rule 3.1, Other Jurisdictions
  • Commentary: ABA/BNA § 61:101, ALI-LGL § 110, Wolfram § 11.2
  • Alabama Commentary:

An attorney has a duty to use existing law in legal procedure to the fullest benefit of his client, but the attorney may not abuse legal procedure. The attorney must stay within the limits of the law.

3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

  • Primary Alabama References: AL Rule 3.1
  • Background References: ABA Model Rule 3.1, Other Jurisdictions
  • Commentary: ABA/BNA § 61:151, ALI-LGL § 110, Wolfram § 11.2
  • Alabama Commentary:

Alabama has enacted the Alabama Litigation Accountability Act. Ala. Code § §  12-19-270, et seq.

3.1:400 Civil Liability for Abusive Litigation Practice [see 1.1:520]

  • Primary Alabama References: AL Rule 3.1
  • Background References: ABA Model Rule 3.1, Other Jurisdictions
  • Commentary: ABA/BNA § 61:101, ALI-LGL §§ 56, 110, Wolfram § 11.2
  • Alabama Commentary:

Alabama law generally complies with the common law tort of abuse of process and malicious prosecution.

3.1:500 Complying with Law and Tribunal Rulings

  • Primary Alabama References: AL Rule 3.1
  • Background References: ABA Model Rule 3.1, Other Jurisdictions
  • Commentary: ABA/BNA § 16:1201, ALI-LGL § 105, Wolfram §§ 12.1.3, 13.3.7
  • Alabama Commentary:

{Begin text here}

3.2 Rule 3.2 Expediting Litigation

3.2:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.2
  • Background References: ABA Model Rule 3.2, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.2:101   Model Rule Comparison

There are no differences between ARPC Rule 3.2 and the model rule.

3.2:102   Model Code Comparison

Inapplicable.

3.2:200 Dilatory Tactics

  • Primary Alabama References: AL Rule 3.2
  • Background References: ABA Model Rule 3.2, Other Jurisdictions
  • Commentary: ABA/BNA § 61:201, ALI-LGL § 106, Wolfram § 11.2.5
  • Alabama Commentary:

An attorney may not delay litigation simply for the convenience of the advocates or to frustrate the opposing party. In 1994 the Alabama Bar adopted the American Bar Association Formal Opinion 379, which states:

[C]ontinuous toil on or overstaffing a project for the purpose of churning out hours is. . .not properly considered 'earning' one's fees. One job of a lawyer is to expedite the legal procedure. Model Rule 3.2. Just as a lawyer is expected to discharge a matter on summary judgment if possible rather than proceed to trial, so to is the lawyer expected to complete other projects for a client efficiently. A lawyer should take as much time as is reasonably required to complete a project, and should certainly never be motivated by anything other than the best interest of the client when determining how to staff or how much time to spend on any particular project.

A lawyer is not required to take short-cuts in his work when such action would not further the client's interests; yet, he should also be efficient with his time. The failure to return phone calls from a client, missing scheduled appointments with a client, disregarding the client's affairs, and taking a retainer without providing requisite service can result in severe sanctions against an attorney. Jackson v. Alabama State Bar, 462 So.2d 365 (Ala. 1985)(three year suspension from practice of law due to continual disregard for his client's affairs and taking money without providing requisite services).

3.2:300 Judicial Sanctions for Dilatory Tactics

  • Primary Alabama References: AL Rule 3.2
  • Background References: ABA Model Rule 3.2, Other Jurisdictions
  • Commentary: ABA/BNA § 61:201, ALI-LGL § 106, Wolfram § 11.2.5
  • Alabama Commentary:

3.3 Rule 3.3 Candor Toward the Tribunal

3.3:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.3
  • Background References: ABA Model Rule 3.3, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.3:101   Model Rule Comparison

ARPC Rule 3.3 omits the duty to cite adverse authority as found in model rule 3.3(a)(3).

3.3:102   Model Code Comparison

Inapplicable.

3.3:200 False Statements to a Tribunal

  • Primary Alabama References: AL Rule 3.3(a)(1) & (2)
  • Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
  • Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
  • Alabama Commentary:

ARPC Rule 3.3 requires an attorney to be honest with a tribunal despite his obligation to maintain the confidences of his client. An attorney is not required to have personal knowledge of matters asserted in the evidence which he presents unless the lawyer offers the evidence as an assertion based on his own knowledge.

3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud

  • Primary Alabama References: AL Rule 3.3(a)(2)
  • Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
  • Commentary: ABA/BNA § 61:301, ALI-LGL § 120
  • Alabama Commentary:

3.3:310   Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

See Section 3.3:510.

3.3:400 Disclosing Adverse Legal Authority

  • Primary Alabama References: AL Rule 3.3(a)(3)
  • Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
  • Commentary: ABA/BNA § 4:301, ALI-LGL § 111, Wolfram § 12.8
  • Alabama Commentary:

A lawyer may not base a legal argument on a knowingly false representation of the law and must keep the tribunal aware of any law directly on point.

3.3:500 Offering False Evidence

  • Primary Alabama References: AL Rule 3.3(a)(4)
  • Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
  • Commentary: ABA/BNA § 61:301, ALI-LGL §§ 115-120, Wolfram §§ 12.3, 12.43, 12.5
  • Alabama Commentary:

3.3:510   False Evidence in Civil Proceedings

An attorney cannot offer evidence that he knows to be false, despite his client's wishes and he does not have to offer evidence if he believes that it may be untrustworthy. If a client offers false evidence before the attorney learns of its falsity, then, once the attorney learns of the nature of the evidence, he should attempt to persuade the client to either not offer the evidence or, if it has already been offered, persuade the client to disclose this fact to the court. If the attorney's persuasion is ineffective then he must take reasonable remedial measures to correct the problem. If necessary, the attorney may have to inform the court and possibly the other party of his client's deception. When false testimony has been offered and withdrawal of the attorney will not remedy the situation, the attorney should disclose the perjury to the court. The problem is then in the court's hands. If the attorney learns of the client's false testimony after the trial or proceeding has been concluded, his obligation to inform the court of the perjury no longer exists.

3.3:520   False Evidence in Criminal Proceedings

If an attorney is representing a criminally accused client, the lawyer should attempt to persuade his client to either not offer the false evidence or to inform the court of his perjurious testimony. If this attempted persuasion is unsuccessful, the lawyer may be allowed to withdraw from the representation; however, if the trial has already begun or if the client would have a hard time obtaining a new attorney who could prepare for the trial in the time allowed, then the court may not allow the attorney to withdraw from the case. In such situations three possible solutions have been devised over the years including (1) allowing the accused to testify by narrative without the lawyer's questioning; (2) the lawyer's excuse from the duty to reveal perjury if the perjury is that of the client instead of the attorney; and (3) the attorney is required to reveal the perjury of the client if necessary to rectify the circumstances.

3.3:530   Offering a Witness an Improper Inducement

An expert witness may be reasonably compensated for his time and expenses. A non-expert witness may not be paid for his testimony. However, he may be reimbursed reasonable costs and expenses including his preparation time. Opinions of the General Counsel, The Alabama Lawyer, January 1998 at p. 55.

3.3:540   Interviewing and Preparing Witnesses

See Section 3.3:530 above.

3.3:600 Remedial Measures Necessary to Correct False Evidence

  • Primary Alabama References: AL Rule 3.3(a)(4)
  • Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
  • Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 66-65, Wolfram §§ 12.5, 12.6, 13.3.6
  • Alabama Commentary:

3.3:610   Duty to Reveal Fraud to the Tribunal

See Sections 3.3:510 and 520 above.

3.3:700 Discretion to Withhold Evidence Believed to Be False

  • Primary Alabama References: AL Rule 3.3(c)
  • Background References: ABA Model Rule 3.3(c), Other Jurisdictions
  • Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
  • Alabama Commentary:

See Sections 3.3:510 and 520 above.

3.3:800 Duty of Disclosure in Ex Parte Proceedings

  • Primary Alabama References: AL Rule 3.3(d)
  • Background References: ABA Model Rule 3.3(d), Other Jurisdictions
  • Commentary: ABA/BNA § 61:301, ALI-LGL § 112 , Wolfram § 12.7
  • Alabama Commentary:

In ex parte proceedings an attorney must "make disclosures of material facts known to the lawyer and [those] that the lawyer reasonably believes are necessary to [make] an informed decision." Comments. A hearing held by an administrative law judge in any of the hearings and appeals offices in Alabama is considered an ex parte proceeding within the meaning of ARPC Rule 3.3(d) and the term "tribunal." Opinion of General Counsel, The Alabama Lawyer, July 1993 at 252-53.

However, if the proceeding is non-adjudicative the attorney does not have a duty to reveal all material facts to the tribunal.

3.4 Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.4
  • Background References: ABA Model Rule 3.4, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.4:101   Model Rule Comparison

ARPC Rule 3.4 does not include model rule Sections (d) and (e). Meanwhile, the Alabama rule added Subsections (d)(2) and (d)(3), providing additional exceptions to Section (d).

3.4:102   Model Code Comparison

Inappropriate.

3.4:103   Overview

The adversary system is secured by rules against "destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like." ARPC Rule 3.4 comments.

3.4:200 Unlawful Destruction and Concealment of Evidence

  • Primary Alabama References: AL Rule 3.4(a)
  • Background References: ABA Model Rule 3.4(a), Other Jurisdictions
  • Commentary: ABA/BNA § 61:701, ALI-LGL §§ 118, 119, Wolfram § 12.3, 12.4
  • Alabama Commentary:

3.4:210   Physical Evidence of Client Crime

3.4:300 Falsifying Evidence

  • Primary Alabama References: AL Rule 3.4(b)
  • Background References: ABA Model Rule 3.4(b), Other Jurisdictions
  • Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 118, Wolfram § 12.3
  • Alabama Commentary:

3.4:310   Prohibited Inducements

See Section 3.3:530 above.

3.4:400 Knowing Disobedience to Rules of Tribunal

  • Primary Alabama References: AL Rule 3.4(c)
  • Background References: ABA Model Rule 3.4(c), Other Jurisdictions
  • Commentary: ABA/BNA § 61:1231, ALI-LGL § 105, Wolfram § 12.1
  • Alabama Commentary:

3.4:500 Fairness in Pretrial Practice

  • Primary Alabama References: AL Rule 3.4(d)
  • Background References: ABA Model Rule 3.4(d), Other Jurisdictions
  • Commentary: ABA/BNA § 61:701, ALI-LGL § 106, Wolfram § 12.4
  • Alabama Commentary:

The General Counsel of the Alabama State Bar has found under ARPC Rule 3.4(b) that an attorney may not pay a fact witness "anything of value" in exchange for his testimony, but he may reimburse the witness for his actual expenses, such as actual loss of income, as long as such payment is not an inducement to testify in a particular way. However, an attorney is allowed to pay an expert witness a "reasonable and customary fee" in return for his testimony, yet the fee cannot be contingent on the outcome of the case. Occasionally, an expert witness may also be in a position to testify as to facts of the case. Under such circumstances an attorney may pay the witness the usual and customary expert witness fee. "However, caution should be exercised that the attorney does not pay the expert more than his usual and customary fee or pay him for more time than he actually expended in preparing and providing his expert testimony, since any excess or unusual fee could be construed as payment for his testimony as a fact witness." Opinion of the General Counsel, The Alabama Lawyer, January 1998 at p. 55.

3.4:600 Improper Trial Tactics

  • Primary Alabama References: AL Rule 3.4(e)
  • Background References: ABA Model Rule 3.4(e), Other Jurisdictions
  • Commentary: ABA/BNA § 61:1361, ALI-LGL § 107, Wolfram § 12.1
  • Alabama Commentary:

Alabama courts have the inherent power to maintain appropriate conduct in the courtroom.

3.4:700 Advising Witness Not to Speak to Opposing Parties

  • Primary Alabama References: AL Rule 3.4(f)
  • Background References: ABA Model Rule 3.4(f), Other Jurisdictions
  • Commentary: ALI-LGL § 116, Wolfram § 12.4.2
  • Alabama Commentary:

An attorney should not normally advise a witness not to speak to the opposing party or its counsel. An attorney may explain to a witness his rights to speak, decline to speak, request legal counsel, or request that certain persons or all parties be present.

3.5 Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.5
  • Background References: ABA Model Rule 3.5, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.5:101   Model Rule Comparison

There are no differences between ARPC Rule 3.5 and the model rule.

3.5:102   Model Code Comparison

Inapplicable.

3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official

  • Primary Alabama References: AL Rule 3.5(a)
  • Background References: ABA Model Rule 3.5(a), Other Jurisdictions
  • Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 113, 115, Wolfram §§ 11.3, 11.4
  • Alabama Commentary:

3.5:210   Improperly Influencing a Judge

An appointed guardian ad litem may not have ex parte communications with a trial judge regarding any substantive issues before the Court. RO-00-02.

3.5:220   Improperly Influencing a Juror

An attorney may not improperly influence a juror.

3.5:300 Improper Ex Parte Communication

  • Primary Alabama References: AL Rule 3.5(b)
  • Background References: ABA Model Rule 3.5(b), Other Jurisdictions
  • Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 112, Wolfram § 11.3.3
  • Alabama Commentary:

In Ex Parte Masonite Corp., 681 So.2d 1068 (Ala. 1996), the defendant claimed that the trial judge's communication with the plaintiff's attorneys regarding the drafting of an order by that attorney certifying a class was an improper ex parte communication prohibited by ARPC Rule 3.5(b). The Court concluded that the defendant's objection was basically that it did not receive a copy of the order before the judge signed it. The Court found that the communications between the judge and the plaintiff's attorney had been the barest minimum necessary to effectively notify the plaintiff that the Court was going to certify the class and to effectuate the drafting of the certification order, therefore these communications did not violate ARPC Rule 3.5(b).

3.5:400 Intentional Disruption of a Tribunal

  • Primary Alabama References: AL Rule 3.5(c)
  • Background References: ABA Model Rule 3.5(c), Other Jurisdictions
  • Commentary: ABA/BNA § 61:901, ALI-LGL § 105, Wolfram § 12.1.3
  • Alabama Commentary:

In Garmon v. Alabama State Bar, 570 So.2d 633 (Ala. 1990), the Court found that a domestic relations referee acted as a tribunal within the meaning of the predecessor rule to ARPC Rule 3.5 and thus it was a violation of the Code of Professional Responsibility to engage in "undignified or discourteous conduct which is degrading to a tribunal."

In Prudential Ballard Realty Co., Inc. v. Weatherly, 792 So.2d 1045 (Ala. 2000), the Court reacted strongly as to improper comments in an application for rehearing. In effect, the attorney accused the Court of selling favorable decisions to the highest bidder. The Court stated: "whether some attorneys believe it to be necessary to spew this venom for the benefit of their unhappy clients or to take the spotlight off their own inadequacies as legal practitioners, such childish behavior is uncivil and beneath the members of a professional bar association and it is a dangerous method of appellate advocacy. By couching a rehearing argument in the form of a written temper tantrum, an attorney can detract from the merits of the argument and do his or her client irreparable harm by failing to maintain the required level of professionalism." Justice Hooper, stated further: "However, the public, not knowing enough about the facts of this case or the legal principles governing its results, may mistakenly interpret our decision as one where the mere accusations and political posturing of the attorney intimidated the Court into ruling in his client's favor, instead of thinking the Court was persuaded by the legal arguments. Such a perception on the part of the public and the resulting effect upon a client's cause, perhaps a just cause, is enough to call for the most severe sanctions against an attorney who resorts to such tactics. The attorney's language taints the judiciary and the legal profession and can seriously backfire upon his client."

3.6 Rule 3.6 Trial Publicity

3.6:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.6
  • Background References: ABA Model Rule 3.6, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.6:101   Model Rule Comparison

ARPC Rule 3.6 includes an additional provision in Section (b) which identifies in detail the type of effects referred to in Section (a).

3.6:102   Model Code Comparison

Inapplicable.

3.6:200 Improper Extrajudicial Statements

  • Primary Alabama References: AL Rule 3.6(a)
  • Background References: ABA Model Rule 3.6(a), Other Jurisdictions
  • Commentary: ABA/BNA § 61:1001, ALI-LGL § 109, Wolfram § 12.2
  • Alabama Commentary:

ARPC Rule 3.6 attempts to strike a balance between protecting the right of free expression and safeguarding the right to a fair trial. The standard applied with respect to this rule is the "serious and imminent threat" test. Other rules pertaining to confidentiality may govern proceedings in mental disability, domestic relations and juvenile proceedings.

3.6:300 Permissible Statements

  • Primary Alabama References: AL Rule 3.6(b)
  • Background References: ABA Model Rule 3.6(b), Other Jurisdictions
  • Commentary: ABA/BNA § 69:1001, ALI-LGL § 109, Wolfram § 12.2
  • Alabama Commentary:

In Hall v. State, 1999 WL 784098 (Ala. Crim. App. 1999), Hall had been convicted of capital murder and sentenced to die. On appeal, Hall claimed he had been denied a fair trial due to the prosecutor's statements to the media made outside the courtroom. The prosecutor had commented to the media that the defendant had a prior record, that satanic symbols had been sprayed on the walls of the victim's home, and that if the defendant was lucky enough to survive his injuries then the prosecutor would see to it that Hall was executed. The Court found that Hall was in no way prejudiced or deprived of due process or a fair and impartial trial by these comments because the trial judge had already carefully considered this matter and the voir dire examination with respect to bias had been extensive. Thus, the Court concluded ARPC Rule 3.6 had not been violated by the prosecutor's statement to the public.

In Smith v. State, 756 So.2d 892 (Ala. Crim. App. 1997), the defendant had been convicted of capital murder and sentenced to death. On appeal, the defendant claimed that his attorney had improperly divulged information that related to his defense theory when talking to the media. Specifically, the defendant contended that his attorney's actions prematurely disclosed his "jealous rage" defense to the State and revealed to the State the name of the key defense witness, who subsequently testified for the State. The Appellate Court found no impropriety in the defense counsel's statements to the media because, it held, this information was encompassed within the "general nature of the defendant's defense, which disclosure is specifically allowed by ARPC Rule 3.6(c)."

3.6:400 Responding to Adverse Publicity

  • Primary Alabama References: AL Rule 3.6(c)
  • Background References: ABA Model Rule 3.6(c), Other Jurisdictions
  • Commentary: ABA/BNA § 61:100l, ALI-LGL § 109, Wolfram § 12.2
  • Alabama Commentary:

3.7 Rule 3.7 Lawyer as Witness

3.7:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.7
  • Background References: ABA Model Rule 3.7, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.7:101   Model Rule Comparison

There are no differences between ARPC Rule 3.7 and the model rule.

3.7:102   Model Code Comparison

Inapplicable.

3.7:200 Prohibition of Advocate as Witness

  • Primary Alabama References: AL Rule 3.7(a)
  • Background References: ABA Model Rule 3.7(a), Other Jurisdictions
  • Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5
  • Alabama Commentary:

The lawyer witness rule generally does not apply to the pre-trial phase of litigation. (Ethics Opinion RO-91-19). In other words, the decision by an attorney to withdraw from the representation of a client due to the fact that the attorney may have to testify can properly be delayed until the trial is closer and the issues are clearer. Moreover, the attorney cannot represent the client at trial only if it is "likely" that the attorney will be a "necessary" witness. Id. "It does not become necessary that a lawyer be a witness simply because the opposing party asserts that the lawyer has knowledge that might be relevant." Id. Instead this is a determination for the attorney to make at a time close to trial and the attorney should consider the three exceptions to the general rule of ARPC Rule 3.7(a). ARPC Rule 3.7(a)(3) permits an equitable balance of the interests of the parties. "Consequently, a lawyer may continue as an advocate at trial even though he is a witness if the harm to his client caused by his withdrawal is not outweighed by the harm to the opposing party." Id.

In Bradford v. State, 734 So.2d 364 (Ala. Crim. App. 1999), the defendant, on appeal, argued that the district attorney was a necessary witness and should not have been allowed to prosecute the case. The district attorney had a conversation with one of the defendant's accomplices and he had helped to draft the search warrant and the affidavit. The defendant claimed that these factors made the district attorney a "necessary witness." However, the Court stated that: "a necessary witness is one who has crucial information in his possession and which must be divulged. The necessity standard requires more than a mere speculation that counsel will be required to testify." Because the district attorney did not possess such crucial information and he had not testified for the State at trial, the Court held the district attorney was not a necessary witness in the trial of the case.

3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)

  • Primary Alabama References: AL Rule 3.7(b)
  • Background References: ABA Model Rule 3.7(b), Other Jurisdictions
  • Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5, 7.6
  • Alabama Commentary:

ARPC Rule 3.7(b) makes it clear that disqualification is personal and is not imputed to other members of the lawyer's firm. Thus a solution and a factor in balancing the equities involved in disqualification, is to permit another lawyer in the firm to continue the trial should that become necessary. Opinions of the General Counsel, The Alabama Lawyer, September 1994 at 290-291.

3.8 Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.8
  • Background References: ABA Model Rule 3.8, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.8:101   Model Rule Comparison

ARPC Rule 3.8 clarifies in Section (2) a prosecutor's duties. This section addresses the problems arising when a prosecutor's ethical duties might conflict with otherwise lawful government action such as making false statements in an undercover sting operation. The prosecutor can order, direct, or advise unlawful government action, but may not personally engage in any action which would violate the rules if done by the lawyer. The exception applies exclusively to prosecutor's responsibilities regarding government law enforcement activities.

3.8:102   Model Code Comparison

Inapplicable.

3.8:200 The Decision to Charge

  • Primary Alabama References: AL Rule 3.8(a)
  • Background References: ABA Model Rule 3.8(a), Other Jurisdictions
  • Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
  • Alabama Commentary:

Rule 3.8(1)(a) explains that a prosecutor may charge a party with a crime whenever there is probable cause to believe the party has committed a crime. Probable cause is most commonly found to exist when (1) the prosecutor can support a charge with a valid statute, and (2) facts are available that create admissible evidence in support of the charge. wolfman, supra, at 760. If a prosecutor charges a party knowing that the charge is false, courts consider the charge a per se violation of the prosecutor's ethical duties. Moreover, most courts have broadened this concept so that if the prosecutor "must have known" the charge was false, the prosecutor's actions are a violation. geoffrey hazard, jr. & w. williams hodes, law of lawyering, vol. 2 §34-14 (3d ed. 2002). Most of the debate regarding the decision to charge surrounds the merits of a prosecutor "overcharging" a defendant in order to provide fodder for plea bargaining. Id. Almost uniformly though, if the prosecutor can establish probable cause, courts do not consider this technique a violation of prosecutorial ethics. Id. Similarly, prosecutors are regularly allowed to threaten to charge a third party in order to gain plea bargaining leverage against the primary party if the prosecutor can establish probable cause against such a third party. United States v. Nuchols, 606 F.2d 566, 569 (5th Cir. Ct. App. 1979); see also 28 U.S.C. § 41 (1983) (stating that the 11th Circuit was not created until 1983). Although courts consider this practice "dangerous" because threats to prosecute a third party "carry leverage wholly unrelated to the validity of the underlying charge", courts still allow prosecutors to use this technique even if the prosecutor never intended to charge the third party. Id.

3.8:300 Efforts to Assure Accused's Right to Counsel

  • Primary Alabama References: AL Rule 3.8(b)
  • Background References: ABA Model Rule 3.8(b), Other Jurisdictions
  • Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
  • Alabama Commentary:

Rule 3.8(1)(b) is derived from Miranda v. Arizona, 384 U.S. 436, 444-445 (1966) (citing the 5th and 14th Amendments and holding that a detained party must be told by law enforcement that he has a right to counsel) and is consistent with courts' and lawmakers' theme of "prosecutor as chief legal officer." Rule 3.8(1)(b) is two-pronged such that the prosecutor must ensure to a "reasonable" extent (1) the justice system remains fair in that defendants are assured a right to counsel, and (2) that all other law enforcement will also respect defendants' rights regarding representation. hazard, supra, at § 34-14.

3.8:400 Seeking Waivers of Rights from Unrepresented Defendants

  • Primary Alabama References: AL Rule 3.8(c)
  • Background References: ABA Model Rule 3.8(c), Other Jurisdictions
  • Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
  • Alabama Commentary:

Courts generally interpret Rule 3.8(1)(c) such that a person can waive almost any right they possess, but again, this rule is counterbalanced with the theory that the prosecutor's function is to promote justice, not simply convict defendants. In order for a waiver to be valid, the defendant must do so "knowingly, voluntarily, and intelligently" (which usually is understood to mean at the advice of counsel). Moreover, it is uniformly considered a violation of Rule 3.8(1)(c) for a prosecutor to seek a waiver of rights. Id. These two criteria ensure that the purpose of Rule 3.8(1)(c) is not to allow a prosecutor access to a defendant who has been stripped of his rights, but rather to guarantee the defendant that he will be afforded his fair opportunities to protection from the justice system.

3.8:500 Disclosing Evidence Favorable to the Accused

  • Primary Alabama References: AL Rule 3.8(d)
  • Background References: ABA Model Rule 3.8(d), Other Jurisdictions
  • Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10.5
  • Alabama Commentary:

There exists a subtle difference between Rule 3.8(1)(c) and Model Rule 3.8(c) in that the Model Rule reads "prosecutor[s] shall make timely disclosures" whereas the Alabama Rules reads "prosecutor[s] shall not willfully fail to make timely disclosures." The difference between the two lies in the requisite mental state of the prosecutor. The effect of the "willfullness" requirement is to increase the difficulty when trying to prove a prosecutor has violated Rule 3.8(1)(d) as the prosecutor's mental state is difficult to ascertain, and proving the prosecutor "willfully fail[ed]" to disclose information poses a significant challenge. ala. r. prof'l conduct 3.8 (discussing evidentiary disclosure in the Comments following the rule).

In Brody v. Maryland, 373 U.S. 83 (1963), the Court clearly held that a decision can be overturned if the prosecutor does not provide defensive or mitigating evidence. The heavy lifting regarding Rule 3.8(1)(d) is done when courts must decide if the undisclosed evidence would have had enough of an impact to induce reversal. For instance, if a court wanted to be extremely consistent with the "chief of the justice system" theme, the Brody decision could be read to require prosecutors to follow a lead and find evidence if he knows it will have an effect on the outcome of the case. hazard, supra, at § 34-14. In U.S. v. Agurs, 427 U.S. 97, 103-107 (1976), the Court provided three scenarios in which the prosecutor has a duty to disclose: (1) if the prosecutor knows admitted testimony is false; (2) if the defendant requests information and prosecutor does not produce, even though the evidence would be considered "material" because it might effect the outcome of the trial; (3) if the evidence that was not disclosed, even if not specifically asked for, creates a reasonable doubt that did not previously exist -- this basically requires the defendant to prove he would have been exonerated if he had the evidence, which is very difficult. Moreover, courts have concluded, again consistently, with the "chief theory", that even if a prosecutor was unaware of exculpating information, but other law enforcement officials were aware of it and did not disclose, the decision could be overturned. wolfman, supra. Therefore, clearly Rule 3.8(1)(d), like the other portions of Rule 3.8, require the prosecutor to manage not only the control of the information he has access to, but also all the information at the disposal of law enforcement officials in his jurisdiction.

3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials

  • Primary Alabama References: AL Rule 3.8(e)
  • Background References: ABA Model Rule 3.8(e), Other Jurisdictions
  • Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
  • Alabama Commentary:

Although Alabama Rule 3.8(1)(e) is worded similarly to Model Rule 3.8(e), and should likely be interpreted in the same manner, the Alabama Rule does add that prosecutors are expected not only to reasonably prevent others from making extrajudicial statements, but also must "not cause" them to make extrajudicial statements. Further, from the below mentioned interpretations of the courts and the office of the general counsel, it seems that Rule 3.8(1)(e) also captures Model Rule 3.8(g) that precludes the prosecutor from making improper extrajudicial statements.

The type of statements prohibited in Rule 3.8 as are those pertaining to topics enumerated in Rule 3.6 which reads as follows:

"(a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

(b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a …criminal matter…that could result in incarceration…"

Although the text of these two rules in conjunction could be ambiguous, caselaw and opinions from the General Counsel's office somewhat clarify Rule 3.8(1)(e)'s meaning. The office of the General Counsel issued two opinions that taken together suggest that a prosecutor should not himself make, and should take all reasonable steps to prohibit other law enforcement officials from making, any public statement that discloses information that is not already part of the public record until there has been a conviction or a plea has been entered.

Perhaps more practically, the court held in Hall v. State, 1999 WL 784098 (Ala. Crim. App. Oct. 1999) that because Rule 3.8(1)(e) is predicated on protecting the defendant's due process rights, unless the defendant can demonstrate that one's extrajudicial statements impacted a jury or his trial, the violation has no effect. In Hall, the prosecutor commented to the press shortly after the defendants' arrest regarding the punishment the prosecutor believed the defendants deserved. Upon the court's voir dire examination, because the court found that the juror were not influenced by the comments, and therefore no violation of a constitutionally protected right had occurred, the defendants received no relief. Id.

3.8:700 Issuing a Subpoena to a Lawyer

  • Primary Alabama References: AL Rule 3.8(f)
  • Background References: ABA Model Rule 3.8(f), Other Jurisdictions
  • Commentary: ABA/BNA § 55:1301, ALI-LGL § 97
  • Alabama Commentary:

3.8:800 Making Extrajudicial Statements

  • Primary Alabama References: AL Rule 3.8(g)
  • Background References: ABA Model Rule 3.8(g), Other Jurisdictions
  • Commentary: ABA/BNA § 61:601, ALI-LGL § 109, Wolfram § 12.2.2
  • Alabama Commentary:

3.8:900 Peremptory Strikes of Jurors

  • Primary Alabama References: AL Rule 3.8
  • Background References: Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.9 Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 3.9
  • Background References: ABA Model Rule 3.9, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

3.9:101   Model Rule Comparison

There are no differences between ARPC Rule 3.9 and the model rule.

3.9:102   Model Code Comparison

Inapplicable.

3.9:200 Duties of Advocate in Nonadjudicative Proceedings

  • Primary Alabama References: AL Rule 3.9
  • Background References: ABA Model Rule 3.9, Other Jurisdictions
  • Commentary: ABA/BNA § , ALI-LGL § 104, Wolfram § 13.8
  • Alabama Commentary:

Because lawyers do not have an exclusive right to appear before non-adjudicative bodies, ARPC Rule 3.9 may subject lawyers to "regulations inapplicable to advocates who are not lawyers." However, administrative and legislative agencies have a right to anticipate that lawyers will deal with them as they do with the courts. ARPC Rule 3.9 "does not apply to representation of a client in a negotiation or other bilateral transaction with governmental agency."