Prosecutor's Duty to Disclose Exculpatory Information

The ABA's Standing Committee on Legal Ethics and Professional Responsiblity has just issued a new opinion, Formal Op. 09-454 (2009) which holds that a prosecutor's ethical duty under Model Rule 3.8 is broader in scope than the constitutional requirements under Brady v. Maryland. The key difference, according to the Committee, is that Rule 3.8 (d) "requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on the trial's outcome." (emphasis added). In contrast, the constitutional standard is that the prosecutor need only turn over material evidence which means that the trial's outcome would likely had been different had the disclosure been made.

Ex Parte Contacts with Employees of Represented Corporation

A new decision in this developing area of law holds that plaintiffs' counsel may contact non-supervisory employees of the defendant company that is represented by counsel in a Title VII action in federal court. The case is Smith v. United Salt Corp, USDC W.D. Va. (Sept. 9. 2009). The defendant argued that Lewis v. CSX Transp. Inc., 202 F.R.D. 464 (W. D. Va. 2001) is controlling and that such employee's are "off limits" for ex parte contacts by plaintiff's counsel. Plaintiffs counsel relied in part on Cmt. [4] to Va. R. Prof. Conduct 4.2 which indicates that employees that cannot bind the employer or who are outside the "control group" are not regarded as "represented" by counsel for the employer. Judge Sargent ruled that statements by non-supervisory employees in a Title VII case do not bind the employer and cannot be used as admissions or impute liability to the employer. The employer is subject to vicarious liability only for acts of supervisory personnel. Applying both Rule 4.2 and Fed. R. Evid 801 (d)(2)(D), Judge Sargent held that the ex parte contacts are not prohibited.