Dustin Chao – NY State Bar # 2806669
Who: A group of law professors filed an ethics complaint in March 2022 against attorney Dustin Chao, alleging that Chao engaged in misconduct while prosecuting Ronald Moye on behalf of the District Attorney’s Office of New York County (DANY). The law professors filed the complaint with the Grievance Committee for the First Judicial Department, the body that handles ethics complaints against attorneys in Manhattan and the Bronx. The following summary is based on the complaint.
What: The ethics complaint, also known as a grievance, is based on a New York court decision, People v. Moye. According to the complaint, in the Moye case, the Appellate Division found that Chao committed “an egregious violation of the unsworn witness rule,” which was “highly prejudicial” and the court reversed Moye’s conviction.
According to the complaint, Moye was on trial for allegedly selling drugs. A police officer testified that he witnessed Moye selling drugs to another person and testified that he had the same view when prosecutors staged a reenactment to prepare for trial. However, a photographer for the District Attorney directly contradicted the officer, testifying that when the transaction was reenacted (to show the exchange was indeed visible from the officer’s viewpoint), the officer could not have seen the transaction from his viewpoint.
Despite the officer’s testimony being contradicted by the prosecution’s own photographer, Chao inserted himself as an unsworn witness during closing argument, telling the jury that he was also present at the reenactment, and that the District Attorney should fire Chao if he had allowed a police officer to lie in court. The court found that Chao improperly “injected himself, his pretrial conduct and his credibility” into the trial and Chao’s misconduct was so prejudicial that the court reversed Moye’s conviction.
What rules are involved: The ethics complaint notes that as far back as 1899, the New York Court of Appeals cautioned prosecutors against appealing to juror “prejudice” or seeking conviction “through the aid of passion, sympathy or resentment.” The Court of Appeals has explained that a prosecutor must not vouch for the strength of her own case because of the “possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor.” The complaint notes that it is improper for the prosecutor to act as an unsworn witness, immune from cross-examination, or vouch for the credibility of a witness. Prosecutors wield immense power, the power to seek punishment on behalf of the state, and should be held to the highest ethical standards. The grievance alleges that Chao’s conduct violated the following then-applicable ethical rules:
- Rule DR 1-102 of the Code of Professional Responsibility (later replaced by the Rules of Professional Conduct) prohibited attorneys from engaging in conduct prejudicial to the administration of justice, or to engage in any other conduct that adversely reflected on their fitness to practice law.
The ethics complaint calls for further investigation by the Grievance Committee to determine whether Chao made false statements, presented false evidence, and/or withheld exculpatory evidence, conduct that, if proved, could implicate the following then-applicable rules:
- Rules DR 7-102 and 1-102 prohibited attorneys from knowingly making false statements to the court, using evidence they knew to be false, or engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
- Rules DR 7-103(b), 7-102(a)(3) and 7-109(a) required prosecutors to turn over evidence they knew about.
What can be done about it: The law professors’ complaint calls on the Grievance Committee to investigate and issue public discipline, including suspending Chao’s law license. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether the District Attorney’s Office of New York County’s supervising and managing attorneys complied with their duties under Rule 5.1 of Professional Conduct.
Note: This is a summary based on the grievance, click on the grievance below for more detail. The grievance authors do not have personal knowledge of any of the facts or circumstances of the attorney or case(s) mentioned; the grievance is based on court opinions, briefs and/or other documents cited therein.