Increase in Ethics Compliance: ABA Guidance for Supervisory Prosecutors

Under ABA Model Rules of Professional Conduct (Rules), prosecutors have the responsibility not simply of an advocate, but also, of a minister of justice. The ABA in its Formal Opinion 467 provides guidance to prosecutors on how to better meet their special duties under the Rules. The Opinion establishes that Rules 5.1 and 5.3, which address the obligations of lawyers with managerial and supervisory authority, extend to government organizations and apply to prosecutors. It goes on to provide guidelines to help prosecutors ensure that all lawyers and non-lawyers in their offices comply with the rules of professional responsibility.

Among others, the Opinion suggests that prosecutors 1) train all incoming lawyers regardless of their previous experience, 2) stay informed of all developments in pending cases and 3) participate in all major decisions. The Opinion also recommends that incentives be provided in order to make compliance with ethical obligations less demanding. In addition, supervisory prosecutors should publicize ethical compliance reforms and internal policies, and adopt the appropriate disciplinary procedures. Some of these disciplinary procedures may include “targeted remedial education, increased scrutiny of prosecutors who have engaged in misconduct or whose conduct has been criticized by a court, demotion or dismissal, and, when warranted, referral of a matter to an outside disciplinary authority.”

It will be interesting to see what prosecutors’ offices in various states will do with the ABA’s suggestions. With already heavy caseloads, added obligations may have adverse effects on prosecutors’ offices.

For more information, click here. To read the full text of the Opinion, click here.

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