Prosecutors and Professional Regulation

Abstract

Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, then considering three recent examples: the NDAA’s opposition to a broad reading of Model Rule 3.8(d)’s disclosure obligation; some prosecutors’ opposition to states’ adoption of the post-conviction obligations of Model Rules 3.8(g) and (h); and the Queens County, NY, district attorney’s opposition to a trial court’s consideration of the ethical propriety of his office’s post-arrest interrogation practices. The article argues that prosecutors’ anti-regulatory rhetoric undermines the culture of prosecutors’ offices and is contrary to the public interest in other ways.