Saturday, May 19, 2012

Alan Dershowitz and Florida Rule 4-8-3: What Florida lawyer will step up to the plate?

This is about the Zimmerman case and Harvard’s Professor Alan Dershowitz.  (Full disclosure: Years ago when I represented Walter Polovchak, “The Littlest Defector,” Professor Dershowitz was one of the few lawyers, let alone academics, in America who defended the boy’s right to asylum and to remain in the United States.  I still owe him. You can Google it.)
In the past few days, Professor Dershowitz has been interviewed at length about the outrageous immoral, unprofessional, unethical, unconstitutional and even illegal conduct of the Zimmerman prosecutor.  He has been 100% correct!

I will not recount her misdeeds, nor Dershowitz’s indictment of her.  Suffice to say that the prosecutor's treatment of evidence, disclosure of relevant information to the defendant and court, her handiwork in preparation of the affidavit upon which the charges were based, and charging Murder 2 when not only was there no evidence but the available facts showed a prima facie case of self-defense, all raise substantial questions about her violation of American Bar Association and Florida rules for the professional conduct of lawyers.

The Florida Statutes Annotated Bar Rule 4-8.3(a) provides that: “Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.”  The emphasis on “shall” is mine, to make the point that if the conditions of Rule 4-8.3(a) have been violated a Florida-licensed lawyer has no choice but to report the offender.

The statute’s Editors’ Notes inform us of this: “Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. * * *  This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.”

The convincing case against the Zimmerman prosecutor that has been made by Professor Dershowitz and others has imposed a professional obligation on Florida lawyers.  It will be interesting to see if any of them recognize that and act accordingly.