Uniform Ethical Regulation of Federal Prosecutors

By Tennis, Bradley T. | The Yale Law Journal, October 2010 | Go to article overview

Uniform Ethical Regulation of Federal Prosecutors


Tennis, Bradley T., The Yale Law Journal


NOTE CONTENTS

INTRODUCTION

I.  THE REGULATORY LANDSCAPE FOR FEDERAL PROSECUTORS
   A. Controversy Surrounding the Ethical Regulation of Federal
      Prosecutors
   B. The McDade Amendment

II. REFORMING MCDADE
   A. Solutions Prioritizing State Law
   B. A Uniform National Code for All Lawyers

III. THE CASE FOR A NATIONAL SYSTEM OF ETHICAL REGULATION FOR
     FEDERAL PROSECUTORS

IV. FRAGMENTING REGULATORY AUTHORITY
   A. Who Makes the Rules ?
   B. Investigation and Enforcement

CONCLUSION

INTRODUCTION

In 1995, the Department of Justice launched "Operation Senior Sentinel" to uncover and dismantle telemarketing rings that were making fraudulent offers or bill collection calls to elderly citizens. (1) In one instance, a fraudster convinced an elderly woman to forward nearly $30,000 as an "up front fee" to recover $84,000 that she had lost in a previous scam. (2) To root out telecommunications fraud targeting the elderly, the Department of Justice enlisted the cooperation of AARP members, who became undercover witnesses for the FBI, recording conversations with telemarketers suspected of fraudulent activity. (3) The effort was wildly successful, leading to over four hundred indictments within the first few months. (4)

On May 9, 1992, a gunman shot and killed four people sitting on the porch of their home in Detroit; Loreal Roper, a three-year-old girl, was among them. (5) One of the victims, Alfred Austin, had been "marked for death" by a drug trafficking ring, the "Best Friends," after a defense attorney warned that Austin was planning to cooperate with the authorities. (6) Subsequently, a woman approached the federal prosecutors investigating the case and informed them that her son, a defendant represented by counsel, wished to cooperate but was afraid that his attorney would inform the Best Friends. (7) Prosecutors contacted the man and, after corroborating his story, moved for a new attorney to be appointed. (8) The cooperation of this man was a key break in the case, ultimately leading to the arrest and conviction of Loreal's killer. (9)

Under ethical regulations in place today, which make federal government lawyers "subject to State laws and rules" of any state in which they engage in "attorney's duties," (10) it is doubtful that federal prosecutors would be able to participate in programs such as Operation Senior Sentinel in those states that prohibit the recording of telephone conversations without the consent of both parties. (11) Nor would the Department of Justice be able to make the sort of ex parte contact with represented persons that led to the conviction of Loreal Roper's killer in certain states, despite DOJ policies to the contrary. (12)

Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rules has led to regulatory confusion and has inhibited the development of dear ethical expectations for federal prosecutors. Consequently, prosecutors may find themselves subject to ethical sanction for good-faith mistakes as to what ethical regulations require (13) or may shy away from legitimate exercises of prosecutorial authority where the ethical constraints are unclear.

It is imperative to develop ethical standards that take proper account of the position of federal prosecutors within our legal system. (14) The criminal justice system is capable of inflicting society's most severe sanctions and represents the public interest in justice. (15) Moreover, the role that the modern American prosecutor plays in the administration of that system is unique, not fully analogous to either a neutral factfinder or a zealous advocate. (16) The current regulatory framework is insensitive to the practical and ethical distinctions between federal prosecutors and other lawyers. …

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