Opinion provides guidance to supervisory prosecutors

The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued a formal opinion explaining that prosecutors with managerial authority must adopt reasonable policies and procedures to ensure that lawyers and non-lawyers they supervise comply with the ABA Models Rules of Professional Conduct.

Formal Opinion 467 specifically mentions Model Rule 5.1 and Model Rule 5.3 that require lawyers with managerial authority and supervisory lawyers to make “reasonable efforts to ensure” that their offices comply with the Model Rules.

The new opinion makes clear that public prosecutors also have that responsibility.

“In recent years, reports, court opinions and other authorities have drawn attention to prosecutorial misconduct — notwithstanding the many excellent prosecutors who scrupulously follow or exceed the mandates of the Rules of Professional Conduct,” the committee said in the Formal Opinion. “These reports, opinions and authorities suggest a need for more guidance.” 

Under the Rules of Professional Conduct, the panel noted, prosecutors have “the responsibility of a minister of justice and not simply that of an advocate.”

The rules also state that prosecutors “refrain from prosecuting a charge that [they know] is not supported by probable cause,” the committee noted. In addition, the panel said, the rules state that prosecutors must “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.”

At the same time, the rules state that prosecutors must “make timely disclosure to the defense” of exculpatory and mitigating evidence.

“We believe that most prosecutors know and follow the rules of professional conduct,” the committee said. “But there are prosecutors who do violate the rules, and for all prosecutors there are special challenges and obligations.”

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

Formal Opinion 467 and other ABA ethics opinions are available on the ABA Center for Professional Responsibility website, http://www.americanbar.org/groups/professional_responsibility/publications/ethics_opinions.html.

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