Deputy DA agrees to 18 months’ probation to settle ethics case

Melissa McKowan, a deputy district attorney for San Mateo County, has been issued a “public reproval” by the state bar association. The admonition, issued Aug. 11 by the State Bar Court in San Francisco, includes disciplinary actions in settling a case connected to an act of dishonesty in a May 2013 email from Ms. McKowan to the father of a victim of psychiatrist and convicted child molester Dr. William Ayres.

In the settlement, Ms. McKowan agreed to an 18-month period of probation during which she must make quarterly reports acknowledging her compliance with the state bar’s rules of professional conduct, according to a copy of the reproval document provided by the bar association.

The reproval includes other conditions, including restrictions on Ms. McKowan’s blogging and use of social media, keeping the state bar updated as to any changes of contact information, and obligations for timely responses to questions from the state bar’s Office of Probation.

Ms. McKowan was the county’s prosecutor in 2009 in the criminal case against Dr. Ayres, a San Mateo child psychiatrist alleged to have molested boys during examinations in the 1980s and 1990s. The result of the trial was a hung jury and mistrial.

In 2013, Dr. Ayres, who was 81 and facing a retrial, pleaded no contest to the charges against him. He died of natural causes in prison in April 2016 at the age of 84.

Ms. McKowan’s email at the center of the complaint before the State Bar Court was sent in May 2013, when she wrote to a father of one of Dr. Ayres’ victims commenting on complaints about her conduct by victim’s advocate Victoria Balfour: “Every agency that has been forced into investigating this case by Balfour has found that her accusations are entirely false and have no bases whatsoever.”

Attorney Robert K. Sall, representing the state bar, said in a March 2017 complaint to the State Bar Court that neither the district attorney nor the state bar association found Ms. Balfour’s accusations to be “entirely false” or to have “no bases whatsoever,” and that Ms. McKowan “willfully violated Business and Professions Code … by engaging in dishonesty and moral turpitude.”

Asked to comment on the settlement, Ms. Balfour said: “Let”s just say that it’s better than a private reproval … so the bar association website can cite the disciplinary actions. For the public, that’s good.”

(The state bar had issued Ms. McKowan a private reproval in March 2013 in response to an earlier instance of dishonesty by Ms. McKowan concerning the Ayres case.)

Ms. McKowan referred a request for comment to her lawyer, Paul F. DeMeester. “Obviously, she’s relieved that the case is over. I wish that she had never been charged,” Mr. DeMeester said. Ms. McKowan’s statement to the victim’s father “was a bit of hyperbole,” he said. “With 20-20 hindsight, she wouldn’t have phrased it that way.”

Asked to respond to that statement, Ms. Balfour disagreed with the use of the term “hyperbole,” noting that just two agencies, the state bar and the San Mateo County District Attorney’s Office, investigated the factual basis of Ms. McKowan’s email and “found the opposite” of what she wrote.

“You have to produce a letter or document that says (what you’re alleging),” Ms. Balfour said. “You have to have documents … some proof of evidence … showing that these agencies concluded that.”

It was not the first time that Ms. McKowan and Ms. Balfour had been at odds. After the 2009 mistrial, Ms. Balfour accused the prosecutor of unethical and inappropriate behavior, including lying to a victim’s mother about having contacted a potential witness who reportedly could have undercut Dr. Ayers’ defense that his physical examinations of psychiatric patients were appropriate.

Ms. McKowan later admitted to San Mateo County Chief Deputy District Attorney Karen Guidotti that she had not contacted that potential witness. The DA’s Office subsequently took disciplinary action against Ms. McKowan, including a suspension in September 2012 “for an act or acts of dishonesty,” according to Mr. Sall’s 2017 complaint.

It was over this offense that the state bar association issued Ms. McKowan a private reproval.

Restrictions

The disciplinary actions in the public reproval, which go into effect on Aug. 31, include a requirement that Ms. McKowan submit quarterly reports to the state bar’s Office of Probation, under penalty of perjury, attesting to her having complied with professional rules of conduct and the other conditions of the reproval. She must also respond “fully, promptly and truthfully” to inquiries from the Probation Office or a probation officer.

Ms. McKowan may not blog or use social media to comment on the Ayres case, the complaining witness, or any subject matter from cases past or pending that are connected to her as deputy district attorney. She retains her First Amendment rights of free speech “consistent with her duties” under the professional rules of conduct, and she may “respond truthfully” in public forums to publicity generated by Ms. Balfour concerning her.

The reproval does not recommend that Ms. McKowan attend ethics school, as she completed the ethics course in August 2015, but she will have to take and pass the Multistate Professional Responsibility Exam within a year.

The reproval notes two mitigating circumstances:

• Ms. McKowan made her statement to the victim’s father “in good faith because she believed the statement referred to investigation of the Ayres case by other agencies.”

• The court received more than 30 letters from members of the bar in support of Ms. McKowan’s “good character,” including from colleagues and adverse counsel.

Related story: Deputy DA again facing state bar sanctions over alleged dishonesty

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