A clash between the U.S. Justice Department and the D.C. Office of Bar Counsel over a former federal prosecutor's alleged ethics transgression is playing out in front of a Washington attorney ethics board.
Andrew Kline, a former assistant U.S. attorney in Washington, is challenging an ethics committee's conclusion in March that he didn't play by the rules in a shooting case when he kept certain information to himself that the victim had earlier provided to police.
The Justice Department is backing Kline in the dispute, pending before the D.C. Court of Appeals Board on Professional Responsibility. DOJ lawyers argue that the hearing committee too broadly interpreted a prosecution conduct rule, opening the door for ethics cases and "unwarranted sanctions" against prosecutors. Kline is no longer in government service.
The D.C. Office of Bar Counsel this month filed a response to Kline and DOJ, which submitted an amicus brief in the case supporting the former assistant U.S. attorney. You can read bar counsel's brief here and the DOJ brief here.
At issue in the case is whether Kline, in 2002, should have turned over information the victim told police shortly after the shooting. The victim's recollection cast doubt on the identity of the shooter. Kline obtained the information from a police officer who spoke with the victim at a hospital.
DOJ lawyers contend Kline was not obligated to turn over the victim information because it was not "material," or relevant, to the defense.
Elizabeth Herman, deputy bar counsel, said in her brief that Kline's legal team "selectively picks and highlights information from the criminal trial records and disciplinary hearing in an attempt to distort the record and sanitize his testimony before the committee."
Herman at one point accused Kline's attorneys of committing "sleights of citation." DC bar counsel is pushing for a public censure of Kline.
"Prior to (Kline's) misconduct, the Supreme Court and the District of Columbia Court of Appeals, as well as the training provided by the United States Attorney's Office, had repeatedly reminded prosecutors to err on the side of disclosure," Herman wrote.
Kline, Herman said, "failed to heed those warnings. A public censure is the type of discipline that recognizes such a failure, while also making the public and the Bar aware of the necessity of following this ethical requirement."
Venable partner Seth Rosenthal, who represents Kline, argues that the victim information that Kline did not disclose was non-material. A mistrial was declared the first time around. A second jury convicted the alleged shooter, Arnell Shelton. Kline did not handle the second trial. That prosecutor, in reviewing Kline's notes, turned over the victim information to the defense lawyers.
Rosenthal, who represents Kline with Venable associate Matthew Beville, said in a brief in July that there's no evidence that Kline acted intentionally in not providing the information to Shelton's attorneys at the D.C. Public Defender Service.
"The committee overlooked a number of salient facts proving inadvertence and otherwise clearly misapprehended the facts on which it said it relied," Rosenthal said.
Rosenthal also said "Mr. Kline readily accepts that, as a prosecutor, he had a special duty to act fairly and to serve as a minister of justice."
Kline "consistently tried his best to fulfill his solemn obligation," Rosenthal wrote, but at the same time thinks he should have "expressly informed" Shelton's lawyer about the victim statement.
Kline's attorneys also contend public censure is not appropriate--even if the Board on Professional Responsibility ultimately finds he violated an ethics rule--because of the former prosecutor's lack of disciplinary history and reputation for fairness.