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ProAcademy

Abstract

This a rticle analyzes the ro le o f fe d e ra l prose cu to rs in the US governm ent, a m ulti-level a p p ro a c h to d e fin in g a n d e nforcing a prose cu to r's e th ica l o blig atio n s, the rules o f p ro fe ssio n a l co n d u c t e n a c te d b y each o f the states a n d the D istrict o f C olum bia, as w ell as standards o f co n d u c t fo r officials. M o re o ve r, the issues o n d iscip lin a ry m echanism s, in p articu la r, the status o f a num b e r o f fe d e ra l a n d state bod ie s responsible fo r investigating p rofe ssio n al m isconduct o f prosecutors have been covered.

First Page

11

Last Page

16

References

1 In this article, I will use the term “federal prosecutor” to mean Assistant U.S. Attorneys (AUSAs) and attorneys in the Department of Justice (DOJ) who are assigned to the various divisions of the Department of Justice, e.g. Criminal Division, Tax Division, Anti-trust Division, and Environment and Natural Resources Division. AUSAs are employed in a United States Attorney's Office (USAO) located in a federal judicial district, e.g. Central District of Illinois. Each federal judicial district is geographically contained within a single state. Some states have only one federal judicial district within its borders, others have more than one. AUSAs generally only bring cases in the United States District Court located in the judicial district in which their USAO is located. DOJ Division attorneys are usually assigned to offices located in Washington, D.C. They bring cases, either alone or in conjunction with a USAO, in numerous federal judicial districts. Both AUSAs and DOJ Division attorneys are employees of the United States Department of Justice, which is headed by the Attorney General of the United States, who reports directly to the President of the United States. 2 In this article I will refer to the highest court of the state as the state supreme court. Not every court of last resort in a state is called the Supreme Court, but most are, and they generally have the same authority under the applicable state constitution as the U.S. Supreme Court does under the U.S. Constitution. 3 In the United States, the terms “lawyer” and “attorney” are used interchangeably. Both terms refer to persons who are admitted to practice law in one or more states. 4 I use the term “public prosecutor” to refer to a lawyer employed by a governmental authority to represent the governmental authority in criminal cases. It does not have the meaning of public prosecutor in the Criminal Procedure Code of the Republic of Uzbekistan. 5 In United States v Armstrong, the U.S. Supreme Court observed: The Attorney General and United States Attorneys retain “‘broad discretion'” to enforce the Nation's criminal laws. They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3; see 28 U.S.C. §§ 516, 547. As a result, “[t]he presumption of regularity supports” their prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” 6 State prosecutors must be admitted to practice law in the state in which they work. Federal prosecutors need only be admitted to practice law in one state, which does not necessarily have to be the state where they work. Many federal prosecutors are admitted to practice law in multiple states. 7 A state bar association is an association that represents or seeks to represent the attorneys practicing law in a particular state. Most state bar associations derive their power from legislative statutes enacted by the state legislature and/or from the power of the state court system to regulate practice before it. Their functions often include administration of the state bar examination, regulation of Continuing Legal Education and other requirements, and discipline of attorneys for ethical or other violations. State bars typically provide services for members such as maintaining a directory of attorneys in the state, facilitating social events for attorneys, publishing a bar journal and providing classes to fulfill these CLE credits requirements. 8 An ex parte proceeding is one in which only one side of a legal action appears before the judge. For example, when a prosecutor makes an application to a court for the issuance of an arrest warrant, a search warrant, or a wiretap order, that is an ex parte proceeding - only the prosecution, not the defense, appears before the judge. 9 Anyone can make a referral to a state bar alleging prosecutorial misconduct - another lawyer, a litigant or other participant of a judicial proceeding, a client, a court, a member of the public, and, in the case of a federal prosecutor, the Department of Justice. 10 Each state bar has adopted a disciplinary procedure which governs the receipt, investigation, and adjudication of allegations of ethical violations. 11 Suspension is the temporary loss of the admission to practice law. Disbarment is the permanent loss of the admission to practice law. 12 Because most state bar associations will recognize a suspension or disbarment of another state bar, a lawyer's suspension or disbarment by one state bar will effectively result in a concomitant action by all other bar associations of which the disciplined lawyer is a member. 13 While most of the state rules of professional conduct are consistent with the Model Rules, and, therefore, are very similar, there are some important differences which can present a prosecutor with conflicting rules for the same conduct. 14 Title 28 United States Code, Section 530B (Note: All the statutes, rules and regulations cited in this article or in these endnotes are available on the internet as public source information.) 15 Those rules are codified in Title 28, Code of Federal Regulations, Sections 77.1 - 77.5 16 Since many federal investigations and cases involve criminal conduct that occurs in more than one federal judicial district, federal prosecutors often are involved in investigative actions in states and districts other than the district in which the case is charged. For instance, a crime charged in one district may involve the execution of a search warrant in a different state and district from the one where the defendant is ultimately charged. 17 Any penalty imposed by a USDC against a prosecutor for a violation of the local rules of court is subject to review on appeal. 18 The Office of Government Ethics (OGE) is an Executive Branch organization which provides leadership and oversight of the Executive Branch ethics program designed to prevent and resolve conflicts of interest. OGE is headed by a Director who is appointed to a five-year term by the President. According to its website, “OGE oversees the executive branch ethics program and works with a community of ethics practitioners made up of nearly 5,000 ethics officials in more than 130 agencies to implement that program. When government decisions are made free from conflicts of interest, the public can have greater confidence in the integrity of executive branch programs and operations. OGE's mission is part of a system of institutional integrity in the executive branch.” 19 These principles were established by Executive Order 12731 of October 17, 1990. The Standards for Ethical Conduct for Employees of the Executive Branch issued by OGE to implement this executive order are codified in Title 5, Code of Federal Regulations, Part 2635 (effective January 1,2017). 20The DOJ OIG is a statutorily created independent entity whose mission is to detect and deter waste, fraud, abuse, and misconduct in DOJ programs and personnel, and to promote economy and efficiency in those programs. The OIG investigates alleged violations of criminal and civil laws by DOJ employees and also audits and inspects DOJ programs. The Inspector General, who is appointed by the President subject to Senate confirmation, reports to the Attorney General and Congress. 21OPR was established by order of the Attorney General to ensure that DOJ attorneys and law enforcement personnel perform their duties in accordance with the highest professional standards expected of the nation's principal law enforcement agency. Pursuant to 28 C.F.R. § 0.39a, the Counsel for OPR reports directly to the Attorney General and Deputy Attorney General. In addition to the Counsel, OPR is staffed by a Deputy Counsel, three Associate Counsels, and between 20-25 Assistant Counsels. While OIG and OPR have separate jurisdictional authority, OIG is required to notify OPR of the existence and results of any OIG investigation that reflects upon the professional ethics, competence or integrity of a DOJ attorney. 22 The PMRU is a component within the DOJ Office of the Deputy Attorney General (ODAG). 23 The MSPB is an independent quasi-judicial agency established by Congress in 1979 to protect federal civil service employees (which includes non-presidentially appointed federal prosecutors) against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management. It has jurisdiction to review certain personnel actions to determine whether the action is prohibited by the Civil Service Reform Act. 24 There has been a lively and ongoing debate among academics and practitioners on whether there should be single ethical code for federal prosecutors. See, e.g., Bradley T. Tennis, Uniform Ethical Regulation of Federal Prosecutors, Yale Law Journal, 120:144 (2010).

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