Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory
Zacharias, Fred C., Green, Bruce A., Vanderbilt Law Review
Federal courts regulate lawyers who appear in federal litigation both by adopting rules of professional conduct and by announcing standards of conduct in judicial decisions. Yet the federal courts' authority to do so is uncertain. Congress has never explicitly authorized federal courts to adopt rules of ethics for federal litigators. While some rules of professional conduct might be justified under the congressionally delegated authority to adopt rules of evidence, practice, and procedure, some probably cannot be. And the existing rule-making authority would not justify the imposition of restrictions on lawyers via judicial decision rather than rule. It is therefore important to consider whether federal courts have sources of authority, independent of the powers delegated by Congress, to announce standards of professional conduct for lawyers practicing in federal court.
The article's consideration of this question begins with the Supreme Court's 1992 decision in United States v. Williams, which determined that a district court had impermissibly required federal prosecutors to disclose exculpatory evidence to the grand jury. The Williams Court focused on the so-called "supervisory authority" of federal courts. The Court could have foreclosed the district court's exercise of supervisory authority in a number of alternative ways, many of which would have resolved important questions about whether, and how extensively, federal courts may regulate the bar. Ultimately, the Court's opinion was both too limited and too unclear to provide much guidance, but a consideration of the various avenues open to the Court helps demonstrate the complexity of these issues.
The article then analyzes three possible sources of independent judicial authority to set standards of professional conduct for federal litigators. It concludes that the first two powers-the federal courts' inherent authority to protect their own jurisdiction and processes and their authority to control the admission of lawyers who practice before them-include the power to set some standards of conduct, but not to regulate the full extent of lawyers' conduct relating to federal court proceedings. Some rules and standards of federal attorney ethics could be justified only if federal courts have an additional power that the Supreme Court has intimated but never explicitly recognized; namely, a "general ethics authority" comparable to the power of state courts broadly to regulate lawyers who practice before them. Some lower federal courts have assumed that they possess this broad power, but there is ample room to debate whether they are right. Until the Supreme Court squarely addresses the issues, the extent of federal courts' authority to regulate lawyers' conduct will remain uncertain.
Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints.1 Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress.2 To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.
This issue is important for two reasons. First, most federal districts have adopted local rules of professional conduct, either by incorporating those of the states in which they sit3 or by promulgating their own.4 Unless these standards can be justified as exercises of procedural or evidentiary rule-making powers delegated by Congress, their validity depends on the existence of independent federal court authority. Second, and perhaps more importantly, federal courts have often imposed professional obligations on lawyers through judicial opinions. …