Allegheny County District Attorney Stephen Zappala (Pittsburgh City Paper photo).
Before I explain why Allegheny County District Attorney Stephen Zappala, Jr., should not be subject to attorney discipline over his treatment of defense attorney Milton Raiford, I have to make clear that I think Zappala should resign or be removed through the constitutional processes of impeachment or gubernatorial address.
Because Zappala, a Democrat, is an elected official, the decision to remove him should come from officials elected by the people or by the people’s vote in the next election.
Abuse of government power is a political matter, not something appropriate for the legal profession’s internal disciplinary system. Nor does the Pennsylvania Constitution ordinarily provide a role for the Pennsylvania Supreme Court, which controls attorney discipline, to have a say in the removal of elected officials.
Even if you think Zappala should stay in office, you should still want that decision to rest with the political branches of government.
The background of the Zappala controversy is well known. During a hearing in May, Raiford criticized the Allegheny County District Attorney’s Office for systemic racism and vowed not to accept plea bargain offers from that office in the future.
In response, Zappala instructed his prosecutors to refer any plea offers to the central office. The resulting furor caused Zappala to rescind that policy and instead to require that all allegations of discrimination be forwarded to him.
Zappala stated that this was no change. Prior to Raiford’s allegation, no one had accused his office of racism.
Zappala’s first response targeted a critic by punishing his clients—the ultimate abuse of a prosecutor’s office.
His clarification hardly improved matters. Presumably, Zappala has always wanted allegations of discrimination reported to him.
As for Zappala’s assertion that Raiford’s charge was the first he heard about systemic racism in the criminal justice system, that ranks up there with Justice Clarence Thomas’s statement at his confirmation hearing for the U.S. Supreme Court that he didn’t recollect ever “commenting one way or the other” on whether Roe v. Wade had been correctly decided.
If it’s true, it reflects a lack of interest that should disqualify a person from public office.
Nor would Zappala’s modified policy address systemic racism at all. Racism embedded in structure is not obvious. Street crime is treated much more harshly than white collar crime, for example, because it honestly seems like more of a problem to white prosecutors. That is why systemic racism has to be looked at as a whole and not on a case-by- case basis.
If Zappala does not realize that, he should not be the DA.
These issues are way beyond any proper concern of the legal profession’s internal disciplinary system.
The Pennsylvania Constitution provides three processes for the removal of most elected officials, including prosecutors: criminal conviction involving misbehavior in office or certain other crimes, Impeachment or Address to the Senate by the governor.
As Americans are now aware from the federal Impeachment process, the latter two procedures require a difficult-to-attain two-thirds vote in the Senate for removal from office.
That difficulty is deliberate. It is there to protect the people’s choice to elect someone from being easily reversed.
But instead of attempting to use these constitutional remedies to remove Zappala, calls for action, and at least one complaint, have gone to The Disciplinary Board, which enforces Pennsylvania’s Rules of Professional Conduct for lawyers on behalf of the Pennsylvania Supreme Court.
Attorney misconduct is properly the province of the Supreme Court, which has the constitutional authority to prescribe rules for the practice of law.
But the allegations against Zappala have little to do with the practice of law. The issues here concern abuse of government power and an unwillingness by a public official to address issues of systemic racism in the criminal justice system.
Not surprisingly, there are no rules of attorney ethics that directly govern punishing critics of government policies or determining how racism should be confronted.
Not only is the professional ethics system not structured to handle issues like these, there are more fundamental reasons why The Disciplinary Board should have no role in determining Zappala’s fitness to serve.
For one thing, the ethics process is confidential and can be lengthy. This matter needs to be addressed publicly and expeditiously. The due process protections for individual lawyers are very important. But they have little role to play in deciding on removal of a government official.
In the second place, while The Disciplinary Board can in effect cripple the DA’s Office by suspending Zappala’s law license, it cannot actually remove him from office unless he is disbarred—an unlikely eventuality.
This state of affairs has occurred before. It is the reason why disciplinary action against then-state Attorney General Kathleen Kane proved so cumbersome.
In 2015, the Pennsylvania Supreme Court suspended Kane’s license to practice law, but she remained attorney general. Kane’s involvement in running the office after that was never clarified. Eventually, Kane resigned after a conviction for perjury.
In March, the Supreme Court temporarily suspended the law license of Bradford County District Attorney Chad Salsman over charges of sexual assault, but he remained DA and had some role in running the office until he pleaded guilty to criminal charges and resigned in May.
Given that no criminal charges are pending against Zappala, it is unclear what the impact of a suspension of his law license would be.
Finally, allowing the Disciplinary Board to decide whether Zappala acted wrongfully, and to what extent, would mean that issues of abuse of government power and systemic racism would in effect be decided in the Judicial Branch.
The judicial branch is not the place for these decisions to be made. They need to be made by the General Assembly or, failing that, by the voters.
Given the public’s concern over Zappala’s actions, it would be a travesty if an insular group of attorneys decided behind closed doors either that Zappala had done nothing wrong or that his license should be suspended. But that is how the black box of attorney discipline often works.
It is understandable that politicians would be anxious to get themselves off the hook by recommending recourse to The Disciplinary Board for the Zappala matter. But it does not belong there.
When charges of improper use of her office surfaced against Kane, the General Assembly never acted, either to remove her or exonerate her. That failure should not be repeated here.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here. His forthcoming book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” will be published in October.
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