Ethics Expert: Zappala’s No-Plea Rule Could Violate His Duty To Allegheny County Residents
Allegheny County District Attorney Stephen A. Zappala Jr. made headlines last week when an email surfaced showing that he had urged prosecutors in his office to punish the clients of one of his critics.
But legal ethics expert Jessie Allen, a law professor at the University of Pittsburgh, says the clients who really suffered are the ones the district attorney is supposed to serve: the people of Allegheny County. And that lapse, Allen said, could provide the basis for sanctions imposed by a state disciplinary board — a body that has begun to examine allegations of prosecutorial misconduct more closely.
Zappala "represents the people [of Allegheny County] in criminal proceedings. We employ him to seek justice on our behalf and to prosecute with a great deal of discretion based on the facts of what defendants did, their background, and other relevant matters,” Allen said.
“And when he gets mad about something somebody said about him and his office, and makes a radical shift in his entire approach to [an entire group of cases] based on his personal pique about what was said — whether what was said was true or not, by the way — that's not acting in a competent way as my attorney," Allen added. "That's not zealously representing my interest. That's acting in his own interest, and that's a violation of the most basic ethical duty to his client.”
In the email that stoked last week’s controversy, Zappala told local prosecutors to deny plea offers to clients of lawyer Milton Raiford. Raiford, who is Black, had called the DA’s office systemically racist during a court hearing May 13. The Pittsburgh Tribune-Review first reported on the email Wednesday. More than a day later, Zappala defended his policy against Raiford, saying that the defense lawyer had falsely called his plea offers racist and vowed not to accept them.
The Disciplinary Board of the Pennsylvania Supreme Court polices alleged ethics violations involving lawyers in the state. Its 12 members are appointed by the state’s high court.
Disciplinary investigations begin when a member of the public files a complaint, or when the board itself decides to launch a probe. The board keeps all investigations confidential, except when it decides to issue a public reprimand, suspend an attorney from practicing law or remove a practitioner from the lawyers’ bar entirely. The panel does not disclose investigations that it chooses to dismiss or that result in an informal admonition or private reprimand.
No matter how severe the sanction, however, the board cannot unseat an elected prosecutor such as Zappala. (A bill pending before the state House does propose to stop district attorneys from serving without a law license, however. The Pennsylvania Senate unanimously approved the legislation in April.)
Which ethics charges could stick?
Allen, the Pitt law professor, said that under the state’s Rules of Professional Conduct, Zappala could be charged with failing to provide competent and diligent representation that serves his clients’ interests.
Zappala’s email appears to be “not a trivial act,” Allen said, although she noted that an investigation could prove otherwise. According to a transcript of the May 13 hearing, Raiford said he had more than 200 cases pending in the Allegheny County Court of Common Pleas.
It “appears that the district attorney simply shut down negotiations in all of those cases based on something that the lawyer said about him,” Allen said. “And that doesn't seem like acting diligently and with commitment to the client's interest, if the client's interests are criminal justice and punishment proportionate to the alleged acts of the defendant.”
Tierra Bradford, criminal justice policy advocate for the American Civil Liberties Union of Pennsylvania, said Zappala could also face a broader ethics charge if he engaged in conduct “that is prejudicial to the administration of justice.”
“The decision to deny plea deals to Mr. Raiford and all his clients just across the board, that's not justice for the clients that Mr. Raiford has, because you're not even examining those specific cases, and [Zappala] just took that potential avenue [of a plea deal] away from them,” Bradford said.
Bradford said ACLU attorneys have also explored the possibility of whether Zappala could be charged criminally under a state law that bars public officials from impeding the rights of others while acting in their official capacity. Such “official oppression” is punishable as a second-degree misdemeanor, and a conviction could trigger a separate ethics sanction.
But Pennsylvania Attorney General Josh Shapiro, who would be responsible for bringing such a charge, indicated last week that his office will not investigate Zappala. He said the state disciplinary board should handle the matter.
Prosecutors already a focus for disciplinary board
The state Supreme Court’s disciplinary system may be the key to holding prosecutors accountable. In fact, the chief counsel for the disciplinary board published an article in March to highlight his efforts to scrutinize those attorneys more closely.
Tom Farrell, who oversees the board’s work, had been both an assistant U.S. attorney and a criminal defense lawyer before being appointed the board’s chief counsel in 2020. In his March article, he noted that prosecutors are immune from civil suits if they violate defendants’ rights in the course of carrying out their duties.
The state’s disciplinary process, therefore, is the primary tool for punishing prosecutors who engage in misconduct. But Farrell outlined how board policies and practices have undermined the body’s ability to examine instances of prosecutorial misconduct, which could include infractions such as failing to turn over exculpatory information in a timely manner or falsifying evidence.
Historically, the board has limited itself to examining such cases only after a court has overturned a conviction due to prosecutorial misconduct — a high bar, Farrell wrote, because judges don’t always reverse convictions when misconduct occurs, and prosecutors can offer lenient plea terms to avoid litigation over their conduct. In addition, appeals in criminal cases can take years to resolve, and the board previously prohibited investigations where more than four years had elapsed since the alleged misconduct occurred.
Under Farrell’s leadership, the board has loosened such restrictions, and Farrell has assigned himself “as co-counsel on all prosecutorial misconduct cases in order to emphasize [the panel’s] seriousness to the public.” Farrell now also reviews certain cases where ethics charges against prosecutors are dismissed. Previously, such dismissals often did not require the chief counsel’s approval.
“Prosecutors, like other lawyers, should follow certain basic rules of conduct to protect participants in the system and ensure its integrity,” Farrell wrote in his March article. “Violation of these rules diminishes respect for our system, but it can also yield inaccurate and life-destroying results.”