senate Bill S120

2009-2010 Legislative Session

Establishes guidelines of professional conduct for activities by district attorneys

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Archive: Last Bill Status - In Committee

  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 06, 2010 referred to local government
Jan 07, 2009 referred to local government

S120 - Bill Details

See Assembly Version of this Bill:
Current Committee:
Law Section:
County Law

S120 - Bill Texts

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An act to amend the county law, in relation to establishing guidelines
of professional conduct for activities by district attorneys

This bill codifies several of the statutory, constitutional and
ethical obligations imposed upon district attorneys into a single code
of professional conduct enforceable by the Temporary State Commission
of Investigation.

Adds a new section 708 to the County Law establishing guidelines of
professional conduct for activities by district attorneys and other
public prosecutors:

Section 708(1) prohibits a district attorney from making certain types
of extrajudicial statements which are likely to prejudice materially a
criminal proceeding and enumerates which extrajudicial statements are

Section 708(2) provides that district attorneys shall make timely
disclosure of all BRADY material and shall exercise reasonable care to
prevent their subordinates from making a prohibited extrajudicial

Section 708(3) establishes a duty of prosecutorial care and provides
that a district attorney shall not intentionally avoid pursuit of
certain evidence, fabricate evidence or intentionally mislead a
defendant or potential witness;

Section 708(4) empowers the Temporary State Commission of
Investigation to conduct investigations in connection with any alleged
violation of the code of conduct;

Section 708(5) provides that a district attorney who violates any
provision of the code is guilty of misconduct and in addition to any
prescribed punishment, he or she is liable for treble damages in a
civil action;

Section 708 (6) provides that a district attorney or other public
prosecutor shall resign his or her office when he or she becomes a
candidate for another office;

Section 708(7) provides that this section shall apply to all district
attorneys and public prosecutors, including those in counties wholly
contained within a city.

Present rules for district attorneys are codified in the Lawyers' Code
of Professional Responsibility. Attorneys who violate these ethical
rules are subject to disciplinary action by the Appellate Division
pursuant to section 90 of the Judiciary Law.

According to Disciplinary Rule 7-103(B) public prosecutor or other
government lawyer shall not institute or cause to be instituted
criminal charges when he or she knows or it is obvious that the
charges are not supported by probable cause.

A public prosecutor or other government lawyer in criminal litigation
shall make timely disclosure to counsel for the defendant, or to a
defendant who has no counsel, of the existence of evidence, known
to-the prosecutor or other government lawyer, that tends to negate the

guilt of the accused, mitigate the degree of the offense or reduce the

According to DR 7-107A lawyer participating in or associated with a
criminal or civil matter, or associated in a law firm or government
agency with a lawyer participating in or associated with a criminal or
civil matter, 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 in that matter.

According to the Disciplinary Rules an attorney may state the
following in a criminal matter:

7. In a criminal case: a. The identity, age, residence, occupation and
family status of the accused. b. If the accused has not been
apprehended, information necessary to aid in apprehension of that
person. c. The fact, time and place of arrest, resistance, pursuit,
use of weapons, and a description of physical evidence seized, other
than as contained only in a confession, admission, or statement. d.
The identity of investigating and arresting officers or agencies and
the length of the investigation.

The conduct of New York state's sixty-two district attorneys and their
assistants are governed by the Lawyers' Code of Professional
Responsibility, case law precedents, constitutional and statutory
requirements. When a district attorney is accused of violating these
standards of professional conduct, he or she is considered no .
differently than any of the thousands of private attorneys practicing
law in New York State.

The consequence of this uniform treatment is that the same grievance
committees that are ostensibly charged, for example, with
investigating the alleged withholding of Brady material by a public
prosecutor are also charged with investigating complaints lodged by
citizens against private attorneys regarding a wide variety of alleged
misconduct. Given the immense prosecutorial powers which district
attorneys possess and their status as constitutional officers, their
conduct should be regulated under New York State law rather than by
the New York State Bar Association.

The New York State Commission on Judicial Conduct, an independent
disciplinary body established over twenty years ago, oversees the
ethical conduct and behavior of New York State's 3,300 judges. There
is, however, no equivalent body which is singularly charged with
supervising the conduct of New York State's district attorneys and
their assistant prosecutors. This bill, accordingly, eliminates this
incongruity by establishing a parallel oversight mechanism to guide
the professional conduct of public prosecutors and to provide for
appropriate disciplinary action.

This bill does not impose any additional obligations on district
attorneys. It simply codifies several existing obligations under one
section of law and grants the Temporary State Commission of
Investigation (TSCI) the authority to pursue alleged violations. The

TSCI, as the public body already charged with investigating
allegations of criminal activity or misconduct committed by public
officials, is the perfect agency to oversee the conduct of the state's
district attorneys and public prosecutors.

S.2500 of 2007

02/06/07 Referred to Local Government

Unknown at the present time.

This act shall take effect on the 1st of January next succeeding the
date on which it shall have become law.
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