Bar Authorities and Prosecutors

Abstract

The professional regulation of US prosecutors is primarily the responsibility of state judiciaries, which regulate all attorneys, including prosecutors, through the adoption and interpretation of professional conduct rules and by enforcing these rules in the attorney discipline process. Although bar associations have no formal role in regulating prosecutors, they wield informal influence by drafting and interpreting the professional conduct rules that state judiciaries adopt and by publishing standards that offer guidance to prosecutors. Ultimately, professional regulation has limited practical significance for US prosecutors because many professional conduct rules are inapplicable or minimally applicable to their work, and because those rules that do apply (such as those governing attorneys’ advocacy) are uncontroversial and largely coextensive with constitutional law and other law governing prosecutorial misconduct. The rules do not significantly address prosecutors’ charging and plea bargaining decisions – controversial areas of practice relegated to prosecutorial discretion – and do not codify some professional expectations, such as those regarding prosecutors’ heightened duty of candor, that are expressed in court decisions and in unenforceable guidelines. Occasionally, the bar has tried to persuade courts to adopt more demanding rules for prosecutors or to interpret existing rules more demandingly. Prosecutors have generally opposed these efforts, which have achieved limited success while exacerbating tensions between prosecutors and the bar. Consequently, professional conduct rules do not fully capture the conventional understanding that prosecutors have a unique professional role that gives rise to different and, in some respects, more demanding professional obligations than those of other lawyers. The professional conduct rules have only limited influence and do not constrain some of prosecutors’ most controversial and troublesome decisions and behaviors.