1055 St. Charles Avenue, Suite 505 New Orleans, LA 70130 T 504.486.8982 F 504.486.8947 www.splcenter.org August 3, 2017 Office of Disciplinary Counsel 4000 S. Sherwood Forest Blvd., Suite 607 Baton Rouge, Louisiana 70816 Re: Request for Investigation of the Jefferson Parish District Attorney’s Office To the Office of Disciplinary Counsel: The Southern Poverty Law Center (“SPLC”) writes to request that the Office of Disciplinary Counsel investigate the Jefferson Parish District Attorney’s Office and District Attorney Paul Connick. District Attorney Connick and the assistant district attorneys in his office have admitted to manipulating the judicial process by fabricating documents to appear as subpoenas and serving them upon members of the public. The so-called “subpoenas” appeared to compel individuals to come to the District Attorney’s Office and answer questions posed by assistant district attorneys or their staff. Rather than following the law—which requires court authorization for the issuance of subpoenas—the District Attorney’s Office routinely sent these fake subpoenas to witnesses without notifying any court. In so doing, District Attorney Connick and unknown members of his staff who acted under his supervision betrayed the public trust and violated their ethical obligations under the Louisiana Rules of Professional Conduct. The Office of Disciplinary Counsel is charged with investigating “all information coming to the attention of the agency which, if true, would be grounds for discipline.”1 This broad mandate to investigate misconduct stems from the crucial role of attorney discipline as a means of protecting the public, preserving the integrity of the legal system, ensuring the administration of justice, deterring future unethical conduct, and rehabilitating the offending attorneys.2 In the instant case,                                                              1 2 La. S. Ct. R. XIX, sec. 4. The Purposes of Attorney Discipline, La. Att’y Disciplinary Bd., https://www.ladb.org/Discipline/Purpose.aspx.       these considerations are particularly acute given the crucial role of prosecutors in seeking truth, administering justice, and protecting the public. Without a comprehensive investigation into the scope of this misconduct throughout the District Attorney’s Office, the public will be deprived the opportunity to know whether prosecutors are upholding the law and following the ethical rules. Moreover, investigating and sanctioning the unethical conduct will deter prosecutors across the state from engaging in similar misconduct and protect the integrity of the legal profession. I. Summary of Complaint SPLC submits this ethics complaint against District Attorney Connick and unknown assistant district attorneys in his office for violations of Louisiana Rules of Professional Conduct (“Rule”) 4.1(a) and 5.1, in addition to possible violations of other rules. The District Attorney admits that numerous fake subpoenas have issued from his office but has not divulged which assistant district attorneys were involved in this unethical conduct. We respectfully request that this office utilize its broad regulatory powers in order to: 1. Investigate disciplinary action against the District Attorney for his apparent violation of Rule 5.1; 2. Investigate the scope of his office’s practice of issuing fake subpoenas so as to identify those assistant district attorneys who authored and/or authorized the issuance of such documents in violation of Rule 4.1(a); and 3. Bring disciplinary action against them accordingly. The Office of Disciplinary Counsel has unique authority to ensure that the experience of witnesses manipulated and intimidated by the District Attorney is never repeated, and that attorneys who act as an arm of the government are not doing so in violation of ethical rules. A comprehensive investigation is critical to protect the public, to protect the integrity of the legal system, and to deter these or other prosecutors from committing the same misconduct. II. Southern Poverty Law Center’s Interest The Southern Poverty Law Center has worked to protect and advance civil rights in the Deep South for over four decades. SPLC advocates for the reform of the juvenile and criminal justice systems so they operate fairly and equitably; for the dignity and humanity of those interacting with these systems; and for a reduction in the prison population. Furthering this mission is of particular importance to SPLC in Louisiana—the prison capitol of the world. Part of SPLC’s criminal justice work involves ensuring that prosecutors are held accountable for misconduct. Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of a prosecution. In Berger v. United States, Justice Sutherland explained that prosecutorial misconduct means “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”3 SPLC brings this complaint to ensure that prosecutorial misconduct is addressed by the Office of Disciplinary Counsel when it arises.                                                              3 295 U.S. 78, 84 (1935). 2     III.     Uncontroverted Facts A. Subpoenas Are, By Definition, Orders Issued By A Court. A subpoena is “a court’s written order”4 “commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.”5 Subpoenas declare the time and place at which a person must appear, exerting control over that person with no regard for his schedule or access to transportation. Subpoenas are powerful instruments that must be regulated by a neutral magistrate so that they are not abused. Because the so-called “subpoenas” that the District Attorney’s Office sent to witnesses were not orders issued by any court, the label of “subpoena” placed on these documents6 is patently false and intentionally misleading. B. By Law, District Attorneys May Only Seek to Have Subpoenas Issued With Court Authorization. There is no mechanism under law that allows district attorneys to “subpoena” witnesses to speak with them outside of court without going through a judge. Under Louisiana Code of Criminal Procedure Article 66 (“Article 66”), a district attorney, after “setting forth reasonable grounds therefor,” can ask a judge to order the clerk of court to issue a subpoena to a witness ordering his appearance at a designated time and place to speak to the district attorney’s office. It is the court, not the district attorney’s office, which determines whether such documents may issue. It is also the clerk of court, not the district attorney’s office, who issues such subpoenas. Article 66 creates this limitation on the issuance of the subpoenas explicitly to prevent “possible abuse by the district attorney.”7 C. The Jefferson Parish District Attorney’s Office Routinely Lied About Individuals’ Obligation To Speak To District Attorneys and the Penalties for Failing to Do So. The Jefferson Parish District Attorney’s Office has routinely and knowingly falsified “subpoenas” and served them upon witnesses without any court oversight. Following reports that the Orleans Parish District Attorney’s Office had falsified and served subpoenas,8 local media reported that the Jefferson Parish District Attorney’s Office had also issued “fake subpoenas” to compel witnesses to speak with prosecutors outside of court.9 In fact, the Jefferson Parish District Attorney’s Office has admitted plainly that “‘D.A subpoenas’ have been delivered to reluctant witnesses directly from this office and without going through the court process.”10                                                              4 Writ, Black’s Law Dictionary, (10th ed. 2014). Subpoena, Black’s Law Dictionary, (10th ed. 2014). 6 See Ex. A. 7 La. Code Crim. Proc. Ann. art. 66, cmt. B. 8 Charles Maldonado, Orleans Parish prosecutors are using fake subpoenas to pressure witnesses to talk to them, The Lens (Apr. 26, 2017, 2:34 PM), http://thelensnola.org/2017/04/26/orleans-parish-prosecutors-are-using-fakesubpoenas-to-pressure-witnesses-to-talk-to-them/. All articles referenced in this letter are attached as Exhibit B. 9 Charles Maldonado, Jefferson Parish prosecutors used fake subpoenas similar to those in New Orleans, The Lens (Apr. 27, 2017, 7:41 PM), http://thelensnola.org/2017/04/27/prosecutors-in-jefferson-parish-have-used-fakesubpoenas-similar-to-those-in-new-orleans/. See also Matt Sledge, Jefferson DA’s Office says it also sued ‘fake subpoenas,’ as New Orleans City Council blasts prosecutors, The New Orleans Advocate (Apr. 27, 2017, 3:30 PM), http://www.theadvocate.com/new_orleans/news/courts/article_5be8db02-2b88-11e7-9fd5-5b0bc41b65cc.html. 10 Maldonado, supra note 9. 5 3         Conceding his obligation to correct the illegal and unethical practice, the District Attorney “directed all employees to discontinue” the issuance of these so-called “subpoenas.”11 A copy of one such “fake subpoena” is attached to this complaint.12 It is titled “District Attorney Subpoena” and misleadingly informs its recipient that he is “ordered” to appear at the District Attorney’s Office.13 Through this language, the document intimates that a judge has authorized this subpoena and that failure to comply could result in punishment. The witness is therefore intimidated and misled into believing that he is under a legal obligation to appear as “commanded.”  D. The District Attorney’s Office Admits Ethical Violations But Has Not Divulged the Scope of the Practice Nor Identified those Prosecutors who Sent the Fake Subpoenas. The District Attorney’s Office has admitted that issuing these fake subpoenas was so inconsistent with the Rules and the Code of Criminal Procedure that an immediate directive to its assistant district attorneys to stop the practice was required.14 Unfortunately, however, the District Attorney’s Office has not explained how this practice was initiated; through what policies it was perpetuated; to how many people the “subpoenas” were sent; whether they were sent pre- or post-indictment; for how long this unethical practice occurred; which prosecutors engaged in this misconduct; nor in which prosecutions these fake subpoenas were issued. This transparency is critical to a full understanding of the scope of ethical violations which the District Attorney and attorneys working under his supervision committed. The Office of Disciplinary Counsel, whose purpose is to protect the integrity of the legal system and ensure the ethical practice of law, has the authority and responsibility to initiate an investigation into the Jefferson Parish District Attorney’s practices and to dispense appropriate discipline so as to deter further unethical conduct.15 IV. Statement of Violations of the Louisiana Rules of Professional Conduct Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct; knowingly assist or induce another to do so; or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf.16 It is hereby requested that the Office of Disciplinary Counsel investigate the Jefferson Parish District Attorney and his office for violations of the following rules, and impose discipline as appropriate. A. Rule 4.1                                                              11 Maldonado, supra note 9. See Ex. A. 13 See Ex. A. 14 Sledge, supra note 9. 15 See La. Att’y Disciplinary Bd., supra note 2. 16 La. R. Prof’l Conduct R. (hereinafter “Rule”) 8.1; 8.4. 12 4         Rule 4.1(a) provides that in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person. The Jefferson Parish District Attorney’s Office admits it has fabricated documents intended to appear as subpoenas for witnesses, falsely informing them that they were obligated to appear and provide information to the District Attorney’s Office.17 By issuing its own fake subpoenas, the Jefferson Parish District Attorney’s Office knowingly made false statements of material fact or law to third persons in the course of its representation of Jefferson Parish. B. Rule 4.3 District Attorney Connick and the attorneys in his office have violated Rule 4.3, stating that when the lawyer “knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” Of course, District Attorney Connick and the attorneys in his office did the opposite—they engaged in deliberate deception so that witnesses would misunderstand their obligations to talk to the District Attorney’s Office. C. Rule 5.1 District attorneys are required to make reasonable efforts to ensure that their offices have in effect measures giving reasonable assurance that all lawyers in the office conform to the Rules of Professional Conduct.18 In fact, supervising prosecutors bear a heightened obligation to ensure that attorneys under their supervision do not violate ethical rules, because, “[u]nlike other litigating lawyers, prosecutors are not merely advocates and officers of the court, but also administrators of justice who have a duty to seek justice, and not merely to convict.”19 A lawyer holding a supervisory position over other lawyers undertakes certain responsibilities and liabilities. The Louisiana Bar Association’s Office of Disciplinary Counsel has dispensed punishment upon those supervising attorneys who allow ethical transgressions to occur in their organizations. For instance, discipline resulted when a lawyer relinquished legal responsibilities to employees resulting in fraudulent real estate transactions20 and when a lawyer failed to supervise a subordinate lawyer and failed to report that lawyer’s egregious ethical violations.21 For an unknown period of time, prosecutors in Jefferson Parish have engaged in a pattern and practice of deceit that violates the Rules of Professional Conduct and continues to go undisciplined. Upon information and belief, District Attorney Connick failed to implement any meaningful supervisory protocols, such as training or performance monitoring, to ensure that prosecutors under his supervision would not engage in the unethical conduct described herein. Given the admitted recurrence of this unethical conduct, it is clear that District Attorney Connick abdicated his ethical duty to ensure meaningful oversight of the prosecutors in his office.                                                              17 See Maldonado, supra note 9. See Rule 5.1. 19 Annotations to Rule 3.8 (internal quotation marks and citation omitted). 20 See In re Trahant, 2012-1435, p. 13 (La. 12/14/12); 108 So. 3d 67, 75 (discipline). 21 See In re Tolchinsky, 99-1742 (La. 9/3/99); 740 So. 2d 109 (disbarment). 18 5         D. Potential Violations of Rules 3.3, 3.4, and 8.4 Because the scope of the Office’s practice is not known, it cannot definitively be said whether violations of additional Rules have occurred. The Office of Disciplinary Counsel should investigate the District Attorney’s Office in order to determine the extent of the violations. District Attorney Connick and assistant district attorneys in his office may have violated Rule 3.3, mandating a duty of candor to the tribunal. District Attorney Connick’s office prepared and presented cases that relied on witnesses whom it tricked into talking to the state. Upon information and belief, District Attorney Connick and his officers did not clarify this with the court. District Attorney Connick and his assistant district attorneys may have used this practice to issue fake subpoenas after charges have been instituted (as opposed to during a pre-charging investigation). Issuing fake subpoenas post-charging arguably presents a violation of Rule 3.4 by unilaterally creating a system of ex parte subpoenas, in addition to violating Article 66 on its face.22 Under Rule 3.4, attorneys are obligated not to, inter alia, unlawfully obstruct another party’s access to evidence or knowingly disobey an obligation under the rules of a tribunal. After a defendant is charged, he has rights to know about the evidence and witnesses the prosecutor intends to present. Code of Criminal Procedure Article 963 requires a judge to determine whether or not orders should be issued ex parte. Through issuing fake subpoenas post-indictment the District Attorney may violate Rule 3.4 by knowingly violating the terms of Article 963 and unlawfully obstructing the defendant’s access to evidence. Rule 8.4 precludes an attorney from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” Professional “misconduct” includes conduct “involving dishonesty, fraud, deceit or misrepresentation,” even if the conduct is not criminal in nature. For example, a lawyer engages in misconduct by improperly backdating stock certificates in the course of representing a client.23 A violation of Rule 8.4(c) often entails a violation of one or more additional Rules.24 The totality of the District Attorney’s Office’s conduct may amount to a violation of Rule 8.4. V. Violation of American Bar Association Standards In addition to violating the Louisiana Rules of Professional Conduct, District Attorney Connick and the attorneys in his office who engaged in the practice of issuing fake subpoenas have also violated national standards by attempting to force third parties to communicate with the District Attorney’s Office. The American Bar Association (ABA) has stated that “[a] prosecutor should not secure the attendance of persons for interviews by use of any communication which has the                                                              22 See State v. Rachal, 362 So. 2d 737, 739-40 (La. 1978) (subpoena power granted district attorney under Article 66 was for purposes of pre-charge investigation of offense and was not intended to afford prosecutor examination of exculpatory evidence secured by defendant, after prosecution has been instituted). 23 See In re Sealed Appellant, 194 F.3d 666, 672 (5th Cir. 1999). 24 See, e.g., In re Hackett, 2010-1013, p. 9 (La. 9/3/10); 42 So. 3d 972, 978; In re McKee, 2007-1381 (La. 2/1/08); 976 So. 2d 152; see also In re Calahan, 2006-0005 (La. 5/17/06); 930 So. 2d 916 (disbarring lawyer for violations of rules 3.3, 4.1 and 8.4(c), among other rules violations). 6         appearance or color of a subpoena or similar judicial process unless the prosecutor is authorized by law to do so.”25 In commentary to that directive, the ABA wrote: There is evidence that some prosecutor offices have occasionally scheduled persons for interviews by means of documents that in format and language resemble official judicial subpoenas or similar judicial process even though they lack subpoena power in these instances. Such practices are improper and amount to a subversion and usurpation of judicial power . . . . [A] prosecutor’s communication requesting a person to appear for an interview should be couched in terms of request; it should not simulate a process or summons that the prosecutor does not have the power to issue.26 Courts across the country, too, have long recognized the degree to which it is entirely unethical to send a judicial-looking “summons” to prospective witnesses. In United States v. Thomas, for example, the court held that it is improper for a prosecutor to send any document that could be construed by a layperson to compel attendance at a witness conference.27 The court noted that the precise practice at issue had been labeled “unprofessional conduct” by the American Bar Association. The Thomas court stated: “The ‘summons’ here in question is an offensive document under the A.B.A. Standards . . . and although these standards are not technically binding on the Court, we are convinced that this ‘summons’ is a usurpation of the judicial power.”28 The court ordered: “that the United States Attorney shall cease sending to prospective witnesses whom he wishes to interview before the trial date any form which includes the word ‘Summons’ or any derivative thereof or which in its format and language resembles an official judicial subpoena or similar judicial process or which conveys the impression that non-appearance is subject to sanction.”29                                                              25  ABA Criminal Justice Standards for the Prosecution Function 3-3.1(e) (3d ed. 1993), available at https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/prosecution_defense_functio n.authcheckdam.pdf.  26 Supra at 51. 27 320 F. Supp. 527 (D.C. 1970). 28 Id. at 529. The D.C. Bar subsequently issued an ethics opinion coming to the same conclusion. D.C. Bar, Formal Op. 32 (March 29, 1977). 29 Id. Courts have likewise disavowed the use of trial subpoenas to compel interviews with prosecutors. See, e.g., United States v. LaFuente, 991 F.2d 1406, 1411 (8th Cir. 1993) (“The government may not use trial subpoenas to compel prospective trial witnesses to attend pretrial interviews with government attorneys.”); United States v. Keen, 509 F.2d 1273, 1274 (6th Cir. 1975) (concluding that there is “no question” that government’s use of subpoenas to compel witnesses to attend interview was “highly improper” under the rules of criminal procedure); United States v. Standard Oil Company, 316 F.2d 884, 897 (7th Cir. 1963) (government may not subpoena witnesses to the United States Attorney’s office for private interrogation by government counsel). Connick and his office likely also violated Brady v. Maryland, 373 U.S. 83 (1963), and its progeny in the cases where it issued these subpoenas. Under that doctrine, the district attorney is required to turn over any and all evidence which might be utilized “to undermine the ostensible integrity of the investigation” into the case. Kyles v. Whitley, 514 U.S. 419, 448 (1995). Certainly, evidence that the District Attorney’s Office lied to witnesses, in writing, to obtain interviews and statements would 7   As noted by the Thomas court, violations of the ABA standards are not binding on the judiciary. They also do not bind the Louisiana Of?ce of Disciplinary Counsel. Nonetheless, the condemnation by the nation?s oldest and largest professional attorney association of the practices engaged in by District Attorney Connick and attorneys in his of?ce indicates the harsh criticism these practices merit and provides strong support for this request for investigation. VI. Conclusion private person has the right to expect that the government, when acting in its own name, will behave honorably. When a government agent presents himself to a private individual, and seeks that individual?s cooperation based on his status as a government agent, the individual should be able to rely on the agent?s representations.?30 Investigative subpoenas ?provide a ?Vast potential, if not temptation, for prosecutors . . . to crush personal liberties and rights of privacy.?31 The District Attorney?s Of?ce has violated the public?s trust and failed to meet the standards required of Louisiana lawyers. Accordingly, for the reasons set forth above, we respectfully request that the Of?ce of Disciplinary Counsel investigate this matter, and impose discipline. Sincerely, Fletcher Davidson, Esq. Enclosures Attorney?s Of?ce disclosed its own malfeasance to the defense counsel, as it is constitutionally and ethically required Secs, 1116., 645 F.2d 310, 316 (5th Cir. 1981). 3' Gutierrez v. Medley, 972 P.2d 913, 917 (Utah 1998) (Stewart, 1., concurring). 8