Neutrals, government, and organizations - Prosecutors and ot...

Learning Outcomes

After reading this article, you will be able to identify the professional responsibilities and unique ethical duties of prosecutors and other government lawyers. You will understand the requirements for probable cause, disclosure of exculpatory evidence, restrictions on conflicts of interest, and the special standards that apply to government service. You will be able to apply these principles to MPRE-style questions.

MPRE Syllabus

For the MPRE, you are required to understand the special ethical rules governing prosecutors and other government lawyers. This article focuses on the following syllabus points:

• Recognize the heightened duties of prosecutors, including the obligation to seek justice and not merely convict.
• Identify the requirement for probable cause before initiating criminal charges.
• Understand the duty to disclose exculpatory and mitigating evidence to the defense and the tribunal.
• Explain restrictions on seeking waivers of pretrial rights from unrepresented accused persons.
• Analyze conflicts of interest for current and former government lawyers, including screening and consent requirements.
• Apply rules regarding negotiation for private employment by government lawyers.
• Recognize the limits on public statements by prosecutors about pending cases.
• Understand the obligations of government lawyers in noncriminal roles.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is a prosecutor required to do under the Model Rules?
   1. Seek a conviction in every case.
   2. Disclose all evidence that tends to negate the guilt of the accused.
   3. Obtain a waiver of pretrial rights from an unrepresented accused.
   4. File charges even if there is no probable cause.
2. A prosecutor learns of new evidence after a conviction that creates a reasonable likelihood the defendant did not commit the offense. What must the prosecutor do?
   1. Ignore the evidence unless ordered by the court.
   2. Disclose the evidence to the appropriate authority.
   3. Only disclose if the defendant requests it.
   4. Wait until the defense files a motion.
3. May a former government lawyer represent a private client in a matter in which the lawyer participated personally and substantially as a government employee?
   1. Yes, with the government agency’s informed written consent.
   2. Yes, if the lawyer is screened.
   3. No, under any circumstances.
   4. Yes, if the matter is now public record.
4. Which of the following is prohibited for a prosecutor?
   1. Making a public statement necessary to inform the public of the nature of the prosecutor’s action.
   2. Prosecuting a charge not supported by probable cause.
   3. Disclosing mitigating evidence at sentencing.
   4. Refraining from seeking a waiver of pretrial rights from an unrepresented accused.

Introduction

Prosecutors and other government lawyers are subject to special ethical rules reflecting their unique roles in the justice system. Unlike private advocates, prosecutors must act as ministers of justice, not just as adversaries. Government lawyers must avoid conflicts of interest and comply with strict standards regarding disclosure, candor, and impartiality. This article explains the key duties and restrictions for prosecutors and government lawyers, focusing on what you need to know for the MPRE.

Key Term: Prosecutor
A government lawyer responsible for initiating and conducting criminal prosecutions, held to special ethical duties to ensure justice is done.

Prosecutors’ Special Duties

Prosecutors have obligations that go beyond those of other lawyers. Their primary responsibility is to seek justice, not simply to win cases.

Probable Cause Requirement

A prosecutor must not bring or continue criminal charges unless supported by probable cause. Filing charges without this basis is a clear violation.

Key Term: Probable Cause
A reasonable belief, based on facts, that a person has committed a crime, required before a prosecutor may initiate or continue a criminal prosecution.

Disclosure of Exculpatory and Mitigating Evidence

Prosecutors must make timely disclosure to the defense of all evidence or information known to them that tends to negate the guilt of the accused or mitigate the offense. At sentencing, prosecutors must also disclose all unprivileged mitigating information to the defense and the tribunal, unless a protective order relieves this duty.

Key Term: Exculpatory Evidence
Evidence tending to show the defendant is not guilty or that mitigates the offense, which prosecutors are required to disclose to the defense.

Restrictions on Seeking Waivers

A prosecutor must not seek to obtain a waiver of important pretrial rights from an unrepresented accused, such as the right to a preliminary hearing. This protects the fairness of the process.

Public Statements

Prosecutors must refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused, except as necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.

Subpoenaing Lawyers

A prosecutor may not subpoena a lawyer to present evidence about a current or former client unless the prosecutor reasonably believes the information is not privileged, is essential to the investigation or prosecution, and cannot be obtained by other means.

New Evidence After Conviction

If a prosecutor learns of new, credible evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, the prosecutor must promptly disclose it to the appropriate authority and, if within the prosecutor’s jurisdiction, to the defendant and undertake further investigation.

Worked Example 1.1

A prosecutor receives a police report indicating that a key eyewitness has recanted their identification of the defendant. The trial is scheduled for next week. What must the prosecutor do?

Answer:
The prosecutor must promptly disclose the recantation to the defense, as it is evidence tending to negate the guilt of the accused.

Conflicts of Interest for Government Lawyers

Government lawyers, including prosecutors, must avoid conflicts of interest that could compromise their impartiality or the integrity of public service.

Former Government Lawyers

A lawyer who formerly served as a government employee may not represent a private client in a matter in which the lawyer participated personally and substantially as a government lawyer, unless the government agency gives informed, written consent.

Key Term: Personally and Substantially
Direct involvement to a significant degree in a matter, such as making decisions or providing advice, not just peripheral or administrative participation.

Key Term: Screening
Procedures that isolate a disqualified lawyer from participation in a matter to protect confidential information and avoid imputed conflicts.

Imputed Disqualification and Screening

If a former government lawyer is disqualified from a matter, no lawyer in the same firm may participate unless the disqualified lawyer is timely screened from the matter, receives no part of the fee, and written notice is given to the government agency.

Confidential Government Information

A former government lawyer may not use confidential government information to the material disadvantage of a person in connection with a matter in which the information could be used, unless permitted by law.

Current Government Lawyers

A current government lawyer may not participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment, unless the government agency gives informed, written consent.

Negotiation for Private Employment

A government lawyer may not negotiate for private employment with any party or lawyer involved in a matter in which the lawyer is participating personally and substantially, except that law clerks may do so after notifying the judge.

Worked Example 1.2

A former assistant district attorney joins a private law firm. While at the DA’s office, she prosecuted a fraud case against Company X. Company X now asks the firm to defend it in a civil suit arising from the same facts. Can the former prosecutor work on the case?

Answer:
No. She is disqualified because she participated personally and substantially in the matter as a prosecutor. The firm may only represent Company X if she is screened from the case, receives no part of the fee, and the government agency is notified in writing.

Other Government Lawyers

Government lawyers in noncriminal roles (e.g., agency counsel) must also avoid conflicts and maintain impartiality. They may be subject to additional statutory or regulatory requirements.

Exam Warning

Prosecutors must disclose exculpatory evidence even if the defense does not request it. Failure to do so is a common source of discipline.

Revision Tip

When answering MPRE questions about prosecutors, always ask: Does the action advance justice, protect the accused’s rights, and comply with disclosure duties?

Summary

Prosecutors and government lawyers are held to strict ethical standards. Prosecutors must only bring charges with probable cause, disclose exculpatory and mitigating evidence, and avoid improper public statements. Government lawyers must avoid conflicts of interest, especially when moving between public and private sectors, and comply with screening and consent requirements. These rules ensure fairness and integrity in public service.

Key Point Checklist

This article has covered the following key knowledge points:

• Prosecutors must seek justice, not just convictions.
• Probable cause is required before initiating or continuing prosecution.
• Prosecutors must disclose exculpatory and mitigating evidence to the defense and tribunal.
• Prosecutors may not seek waivers of pretrial rights from unrepresented accused.
• Restrictions apply to public statements by prosecutors about pending cases.
• Prosecutors may not subpoena lawyers except under strict conditions.
• New evidence after conviction must be disclosed and investigated.
• Former government lawyers may not represent private clients in matters they handled personally and substantially without agency consent.
• Screening and written notice are required to avoid imputed conflicts for former government lawyers’ firms.
• Government lawyers must avoid negotiating for private employment in matters they are handling.

Key Terms and Concepts

• Prosecutor
• Probable Cause
• Exculpatory Evidence
• Personally and Substantially
• Screening