Should you appeal an order that contains no error of law or fact nor any abuse of discretion? In most courts the answer is obviously no, but the decision is more complicated if the order in question is an attorney discipline recommendation. Case in point: in its most recent published case, In re Matter of Nassar, the review department agreed with a hearing judge that Orange County veteran deputy district attorney Sandra Lee Nassar committed professional misconduct by withholding evidence from a criminal defendant, and found the hearing judge had not committed any legal errors in recommending a minimum one-year suspension. But the review department has independent authority to revisit the appropriate discipline and recommended cutting Nassar’s suspension in half. Not only does Nassar provide new authority for cases involving prosecutorial misconduct, it underscores that discipline recommendations may be successfully challenged — by the attorney or the State Bar — even absent error or abuse of discretion.

In 2011, Nassar charged Carmen Iacullo and Lori Pincus with abusing Pincus’s young son. Unbeknownst to the defendants, Nassar ordered that the defendants’ mail should be intercepted while they were in custody. In July 2012, Pincus plead guilty and was released. As part of her plea agreement, Pincus signed a factual basis statement and agreed to cooperate at Iacullo’s trial.

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