Prosecutors in supervisory roles need to create a 'culture of compliance,' ABA ethics opinion says
Prosecutors have special duties under the ABA Model Rules of Professional Conduct. Chief among them is the duty not just to win a case, but to do justice.
But prosecutors with managerial and supervisory responsibilities have special challenges and obligations under the rules above and beyond those of other prosecutors.
And the ABA Standing Committee on Ethics and Professional Responsibility, in Formal Opinion 467 (PDF) (Managerial and Supervisory Obligations of Prosecutors Under Rules 5.1 and 5.3), issued Monday, spells out what some of those challenges and obligations are.
Most prosecutors, the committee notes, scrupulously follow or exceed the mandates of the model rules. But it says the frequency of prosecutorial misconduct cases nationwide in the last 15 years underscores the need for more guidance as to what’s required of managerial and supervisory prosecutors.
Under the rules, prosecutors with managerial authority must adopt reasonable policies and procedures to ensure that all lawyers and nonlawyers in their offices comply with the rules. Prosecutors with direct supervisory authority must make reasonable efforts to ensure that the employees they supervise abide by the rules. And prosecutors with both managerial and supervisory authority may, depending on the circumstances, be required to do both.
Yet the particular measures that any prosecutor with managerial or supervisory authority must implement to comply with the rules depends on a variety of factors, including the size and structure of his or her office, the committee says.
In its opinion, the committee cites several sources for examples of the types of measures that could be adopted, including the ABA Standards for Criminal Justice Prosecution Function and Defense Function Standards and the National District Attorneys Association’s National Prosecution Standards.
Then it offers a few recommendations of its own.
It says the training the ABA standards recommend supervising prosecutors provide to all incoming lawyers should cover the ethical and legal obligations imposed by the rules, as well as what constitutes so-called Brady material—exculpatory evidence the prosecution is required to disclose to the defense.
It says effective supervisory measures could include requiring supervising prosecutors to participate in all major decisions, establishing a system of individual oversight of line prosecutors and pairing untrained or newly trained prosecutors with more experienced prosecutors.
It also says that managers and supervisors in prosecutors’ offices should help create a “culture of compliance” by, among other things, emphasizing ethical values and imperatives during the hiring process, providing incentives for ethical behavior and protecting and rewarding lawyers who fulfill their up-the-ladder duties.
And it says the kind of training and supervisory measures it recommends should be enhanced with appropriate remediation and discipline, which could include sanctions, remedial education, demotion or dismissal.
