Ethics Charges Against Prosecutor Dismissed

The Georgia Supreme Court found no misconduct by a prosecutor in the recording of privileged conversations between defense counsel and their murder suspect clients and dismissed all ethics charges

we reject the Review Board’s conclusions, which failed to give appropriate deference to the Special Master’s findings. Applying the appropriate standard of review ourselves, we defer to the Special Master’s fact-findings—which are not clearly erroneous—and we agree with the Special Master that no discipline is warranted.

Key findings

the Special Master found that although [Respondent] Paine and defense counsel “were aware that the interview rooms at CID were recorded, both audio and video,” they were “also under the mistaken belief that the audio could be stopped.” The Special Master also found that “[t]here was no evidence presented that [Paine] ‘invited criminal defense counsel to meet with their clients in a CID interview room’” and “nothing in the evidence to suggest that [Paine] knew attorney-client conversations were being recorded.” As to the CDs containing the meeting recordings, the Special Master found that Paine “did not look at any of the CDs to review the content, and was not aware that any of the CDs contained the audio recordings of the attorney-client conversations.” The Special Master further explained that although Paine copied and distributed the recordings, “there is nothing in the rule that prohibits the distribution of illegally obtained evidence,” and “[e]ven if there were, the special master finds from the evidence that [Paine] did not knowingly do so” since she was “not aware that she was distributing the conversations of the attorneys with their clients.”

The Special Master also found that “[t]here was no evidence presented that [Paine] ever used any unlawfully or illegally obtained evidence.” (Emphasis in original.) Finally, the Special Master found that Paine, “though under no obligation to do so under Rule 3.4 (g), immediately took steps to ensure no future attorney-client conversations would be recorded” once she learned of the recordings. Based on these findings, the Special Master concluded that the Bar failed to prove that Paine violated Rule 3.4.

Three other counts were also not sustained.

Standard of review

As relevant to Counts I and III, the Special Master’s specific findings—which the Review Board did not acknowledge—include that Paine did not cause the defendants to be transported to CID and did not invite their attorneys to meet them there; that she did not participate in any recording of the attorney-client meetings; that she was under the mistaken belief that the audio recording of the CID interview rooms could be stopped; and that she was not aware that any of the CDs contained audio recordings of the attorney-client conversations when she burned and then distributed them. Given the testimony and other evidence presented at the hearing, we cannot say that those findings were clearly erroneous—and the Review Board has offered no basis for concluding that they were. As such, the Review Board erred by not deferring to them. See Bar Rule 4-216 (a).

The Georgia Virtue News had extensive coverage of the Review Board’s proposed suspension. (Mike Frisch)