LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL
"Keeping Arrows in the Quiver: Mapping the Contours of Prosecutorial Discretion"
Washburn Law Journal, Vol. 52, No. 1, 2012
CHARLES E. MACLEAN, Indiana Tech Law School
STEPHEN WILKS, Lincoln Memorial University - Duncan School of Law
52 Washburn L.J. 59 (2012). The prosecutor, by most accounts, is the most powerful person in the courthouse, often making, or at least guiding, all of the important decisions in major criminal cases--what crimes to charge, when to bring the charges, the amount of bail sought, the release conditions proposed, dispositions and sentencing, lenience or its absence, and the extent to which any lenience may be appropriate. In that sense, prosecutors have more â€śarrows in their quiverâ€? than most attorneys. This power is emboldened by numerous practices that protect prosecutors from paying personal consequences for unethical behavior in carrying out prosecutorial duties, including (1) qualified discretionary immunity from Â§ 1983 suits, (2) near-absolute immunity from suits against prosecutors' personal assets, (3) flexible ethical rules that sweep a good deal of marginally ethical behavior within the bounds of permissible prosecutorial conduct, and (4) attorney discipline schemes that largely seem to avoid sanctions against prosecutors.
In addition to these protections, most of the decision making is a solitary and private venture, only coming to the attention of the public intermittently, usually in high-profile cases. But even then, when decisions in high-profile cases become public, most of the prosecutor's decision-making process is, like an iceberg beneath the surface, far from peering eyes and inquiring minds.
This Article explores decision-making theories in general and then turns to explore the legal, moral, and ethical constraints on prosecutorial decision making. This Article also examines an assortment of internal and external schemes purporting to somehow regulate the exercise of prosecutorial discretion. Finally, this Article assesses, state by state, how prosecutors fare within the current attorney discipline system through the Model Rules, the Model Code, and the extant professional responsibility systems nationwide.
On balance, it appears that extreme cases of unethical prosecutorial behavior are rare, and when those extreme cases are identified, the states' attorney discipline systems act swiftly and harshly. This Article presents a fifty-state snapshot of prosecutorial sanctions for unethical conduct, exploring the most recent sanctions and the most severe for every state, as well as the District of Columbia. This snapshot indicates that nearly half of all states have disbarred at least one prosecutor for ethical misdeeds in carrying out prosecutorial duties. On the lower end of unethical prosecutorial behavior, the penalties appear to be somewhat rare and usually minimal when the line between unethical behavior and mere prosecutorial error is blurred. Perhaps that is as it should be. In a very real sense, society needs to rely on prosecutors to perform their duties ethically and responsibly. Stated another way, we ought not demand perfection, or at least we ought not punish mere imperfection too severely.
"The Role of the Jurist: Reflections Around Radbruch"
Ratio Juris, Vol. 26, Issue 4, pp. 510-522, 2013
ROGER COTTERRELL, Queen Mary University of London, School of Law
Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general wellâ€?being or worth of law as a practical idea? This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term â€śjuristâ€? would then have not just an honorific connotation. It would indicate a Weberian â€śpureâ€? type that may approximate some current understandings of â€śjuristicâ€? practice; but it would also identify a normative ideal - something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law.
"Solicitation by Defense Counsel: Ethical Pitfalls When Corporate Defense Counsel Offers Representation to Witnesses"
Barry R. Temkin and Michael H. Stone, "Solicitation By Defense Counsel: Ethical Pitfalls When Corporate Defense Counsel Offers Representation to Witnesses", Defense Counsel Journal (2013): 363
BARRY R. TEMKIN, Independent
MICHAEL STONE, Morgan Stanley
The ban on solicitation by attorneys in ABA Model Rule of Professional Conduct 7.3, and its state counterparts, has generally been used to prevent ambulance chasing by plaintiffsâ€™ attorneys. However, a recent New York decision has raised the possibility that a defense lawyer could be disciplined for solicitation when offering his services to a non-party witness employed by a corporate defendant, even when doing so for no additional fee. The court in Rivera v. Lutheran Medical Center, referred a prominent national law firm to the Departmental Disciplinary Committee and disqualified the firm from representing several current and former employees of the law firm's client, a hospital. The law firm had offered its services to several witnesses in a pending civil employment discrimination matter. The court found this to be solicitation in violation of the New York Code of Professional Responsibility, disqualified the firm, and referred it for disciplinary prosecution.
This decision has been criticized by members of the practicing bar, some of whom had assumed it was appropriate for corporate defense counsel to offer their services to current or former employees or non-party witnesses. Moreover, the Rivera decision sets up a potential conflict with other principles of modern corporate practice. For example, recent authorities have held that a corporation, under some circumstances, is obligated to furnish a free defense to a current or former corporate employee in the context of a criminal investigation. In circumstances in which a corporation is legally obligated to offer a defense to a former or current employee, is a lawyer proscribed from making the phone call to offer her services?
"The Practice and Theory of Lawyer Disqualification"
Georgetown Journal of Legal Ethics, Vol. 27, No. 1, 2013
KEITH SWISHER, Phoenix School of Law
Lawyer disqualification is commonly feared â€” as a â€śstrategic,â€? â€śtactical,â€? and â€śharassingâ€? â€śpotent weaponâ€? depriving clients of their trusted counsel of choice. Although disqualification comes with costs, fundamental misunderstandings fuel this common fear. This Article finds that disqualification is a uniquely effective remedy for lawyer misconduct and makes the following contributions to the law and practice of lawyer disqualification: (1) an exhaustive study surveying disqualification cases and refuting the common misconception that disqualification motions are uncontrollably on the rise and uncontrollably bad; (2) an accessible analysis of lawyer disqualification doctrine that permits lawyers and judges to begin assessing common disqualification questions efficiently and comprehensively; and (3) specific suggestions for practical improvements, including cost-shifting, legal presumptions, and better procedures in disqualification proceedings.
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Legal Ethics & Professional Responsibility eJournal
Vice Dean and Professor of Law, New York University School of Law
DAVID J. LUBAN
Georgetown University Law Center
RONALD DANIEL ROTUNDA
Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University - School of Law
WILLIAM H. SIMON
Arthur Levitt Professor of Law, Columbia University - Law School, William W. and Gertrude H. Saunders Professor of Law, Stanford University - Stanford Law School
DAVID B. WILKINS
Harvard Law School - Program on the Legal Profession
CHARLES W. WOLFRAM
Charles Frank Reavis Sr. Professor Emeritus, Cornell Law School