ABA Urges Higher-Ups in Prosecutors’ Offices to Ramp Up Measures to Prevent Misconduct

Sept. 8 — A just-released ABA ethics opinion offers help for managers and supervisors in prosecutors' offices whose responsibilities include preventing and rectifying ethics violations by line prosecutors and nonlawyers.

Formal Opinion 467, released Sept. 8, recommends specific office-wide policies and procedures for training and supervising line prosecutors, and suggests methods for creating a “culture of compliance,” enforcing up-the-ladder reporting of questionable conduct and using internal discipline as a prod for ethical behavior.

The particular measures a supervisor should use depend upon variable factors such as the size and structure of the office, the ethics committee said.

Supervisory Responsibilities

The opinion focuses on ABA Model Rule of Professional Conduct 5.1, which sets out the responsibilities of managers and supervisory lawyers in a law office, and Model Rule 5.3, which imposes responsibilities on lawyers regarding the conduct of nonlawyer assistants.

These rules require lawyers who are intermediate or top managers in prosecutors' offices and supervisory prosecutors to use reasonable efforts to ensure that all lawyers and nonlawyers in their offices comply with professional conduct rules, the committee advised.

The new ABA opinion identifies numerous training, supervisory and disciplinary policies that may reduce the possibility of prosecutorial misconduct.

Prosecutors with managerial authority must adopt reasonable policies and procedures to obtain compliance with ethics rules, and prosecutors with direct supervisory authority must make reasonable efforts to ensure that the lawyers and nonlawyers they supervise comply with the rules, the committee said.

“Where prosecutors have both managerial and direct supervisory authority, they may, depending on the circumstances, be required to fulfill both sets of obligations,” the opinion states.

The committee also advised that Rules 5.1 and 5.3 require managers and supervisors to take “reasonable remedial action” to prevent or mitigate the results of improper conduct if they learn of it at a point when its consequences can be avoided or reduced. The required steps will depend on the circumstances but may include turning over material to the defense and even reporting the misconduct to disciplinary authorities in some circumstances, the opinion suggests.

Need for Guidance

Most prosecutors know and follow professional conduct standards, but many instances over the past 15 years involving prosecutorial misconduct—including two Supreme Court cases—indicate that prosecutors' offices need guidance on preventing ethics violations as required by Rules 5.1 and 5.3, the committee said.

Under those rules, it said, managers and supervisors in prosecutors' offices must implement measures to achieve compliance with the rule on prosecutors' special responsibilities (Model Rule 3.8).

They also must adopt policies and procedures, it said, to ensure compliance with other rules such as:

• Model Rule 4.2, dealing with lawyers' direct contacts with represented persons;

• Model Rule 8.3(a), on lawyers' obligations to report misconduct;

• Model Rule 3.6, which limits lawyers' out-of-court statements; and

• Model Rule 8.4(a), which prohibits lawyers from assisting others in rule violations.


Training Measures

The committee advised that incoming lawyers—even experienced ones—should receive initial training on their professional obligations, including their disclosure duties and other obligations under Rule 3.8 and Brady v. Maryland, 373 U.S. 83 (1963); what public statements lawyers may make under Rules 3.6 and 3.8—including remarks on social media, websites and blogs; what must be revealed to a court under the duty of candor specified in Rule 3.3; what statements an attorney is allowed to make in closing argument; and what conduct by other prosecutors must be reported under Rule 8.3(a).

In addition, the committee said that supervisory prosecutors should provide initial training for nonlawyers who are employed, retained or associated with the office, including detectives and investigators, forensic experts in the office, paralegals and clerical staff. This training should cover prosecutors' ethical and legal obligations and related procedures such as preservation of evidence, it said.

Supervisors should offer training as frequently as needed to provide updates on key subjects, the committee said, such as when important court decisions are issued relating to prosecutorial obligations and when a court has criticized the conduct of a lawyer or nonlawyer in the office.

Supervisory Policies

Effective supervision requires prosecutors to stay informed about pending cases through procedures such as requiring periodic reports on pending cases, the opinion states.

The committee suggested that other appropriate supervisory measures include:

• requiring that supervisors participate in major decisions such as granting immunity, deciding charges, identifying Brady material and documenting the basis for these decisions;

• establishing a system for individual oversight of line prosecutors;

• pairing green prosecutors with more experienced ones;

• holding supervisory prosecutors accountable for their subordinates' misconduct; and

• designating a specific prosecutor to oversee the review of files for Brady disclosure.


‘Culture of Compliance.'

Managers and supervisors in prosecutors' offices should create a “culture of compliance,” the committee said, by emphasizing ethical values and obligations during the hiring process; providing incentives such as positive reviews, promotions and raises for ethical behavior; and protecting and rewarding lawyers who report misconduct up the ladder within the office.

The committee also suggested that supervisors can encourage professional conduct by promoting policies that make it easier to honor ethical obligations, such as open-file discovery; publicizing ethical compliance policies within the office and to the public; and internally disciplining those who violate professional conduct rules.

Although it chose not to get into lawyers' obligations to report misconduct to higher-ups under the rule on representing entities (Model Rule 1.13), the committee said managerial and supervising prosecutors should establish a system for up-the-ladder reporting of ethics violations by people in the office.

The opinion indicates that this system could include designating a specific lawyer or committee to receive reports and take action; requiring that criticism by a judge and allegations of unethical conduct be reported; and allowing confidential review of misconduct allegations when that approach would be appropriate.

And supervisory lawyers should make clear that any lawyer who knows of an ethics violation is required to report that information to a supervising prosecutor or according to the office's up-the-ladder reporting regime, the committee said.

The opinion also suggests that prosecutors' offices can promote compliance by implementing disciplinary and remedial measures for those who break the rules, such as imposing sanctions within the office; requiring remedial education targeted at the particular misconduct; intensifying scrutiny of prosecutors who have acted improperly or have been criticized by a judge; demoting or dismissing unethical prosecutors; and reporting violations under Rule 8.3(a).

It may be effective, the committee said, to put responsibility for internal review with a specific lawyer or group of lawyers.

Your Mileage May Vary

The committee said the particular measures an office uses to comply with Rules 5.1 and 5.3 depend on organizational and structural variables such as the size of the office, the personnel turnover rate, the office's chosen approach to prosecuting cases, the size of case loads and the hierarchical structure of the office.

For example, a formal committee to receive reports and monitor compliance may not be needed in a small office that only has fewer than 16 prosecutors, the opinion says. Small offices may choose simply to adopt an open-door policy for reporting misconduct or assign a specific person in the office to receive misconduct reports, the committee said.

Appropriate procedures for supervision and monitoring will also differ, the committee said, depending on whether one prosecutor handles an entire case or multiple prosecutors work on each case.

Full text at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_467.authcheckdam.pdf.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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