News at White Collar Crime Prof Blog. This is big news, isn't it? Key excerpt from the appellate decision (uploaded below):
This matter comes before us upon the Report and Recommendation of the Board on Professional Responsibility (“the Board”). The Board recommended that a 30-day suspension be given to Andrew J. Kline (“Kline”) after finding that Kline violated Rule 3.8 (e) of the District of Columbia Rules of Professional Conduct (“Rule 3.8 (e)”). Rule 3.8 (e) prohibits a prosecutor in a criminal case from intentionally failing to disclose to the defense any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused. Bar Counsel takes no exception to the Report and Recommendation of the Board. Kline argued, inter alia, that he did not violate Rule 3.8 (e) because his ethical duties are coextensive with the duties imposed under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Kline relies on the “material-to-outcome” standard recognized by the United States Supreme Court in Brady’s progeny to argue that a prosecutor cannot violate Rule 3.8 (e) unless there is a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial. We hold that Kline’s interpretation of Rule 3.8 (e), which incorporates a retrospective materiality analysis, is not the appropriate test for determining whether a prosecutor has violated Rule 3.8 (e). We also hold that Bar Counsel proved by clear and convincing evidence that Kline intentionally failed to disclose information in violation of the rule. However, we conclude that given the confusion regarding the correct interpretation of a prosecutor’s obligations under the rule, sanctioning Kline would be unwarranted.