Ethics: The Ethics-Procedure Dichotomy

The questions are typically raised by prosecutors challenging ethics rules that restrict their professional conduct. In the 1980s, for example, federal prosecutors argued that states’ “no contact rules,” which correspond to Rule 4.2 of the ABA Model Rules of Professional Conduct, should not restrict prosecutors and their investigative agents. These rules generally forbid lawyers and their agents from communicating directly with represented persons rather than communicating through opposing counsel. Some prosecutors argued that it was illegitimate for the ethics rules to impose restrictions on police interrogations and other prosecutorial communications with represented suspects, targets, and criminal defendants. Prosecutors noted that this area of conduct is already governed by constitutional provisions, statutes, or procedural rules, and they asserted that courts therefore lacked authority to impose further restrictions by applying ethics rules. They complained that ethics rules would function in effect as rules of criminal procedure, at least until courts began interpreting the ethics rules more to their liking.

Not long after, prosecutors challenged ABA Model Rule 3.8(e) on similar grounds. This rule limits prosecutors’ ability to subpoena lawyers to obtain evidence about their clients. Although a federal law known as the McDade Amendment requires a federal prosecutor to comply with the ethics rules of the state in which the prosecutor works, federal prosecutors in Massachusetts argued that their state’s version of Rule 3.8(e) was not really an ethics rule, and the First Circuit agreed. It reasoned that the rule,

though doubtless motivated by ethical concerns, has outgrown those humble beginnings. Substance, not form, must control. . . . As written, [the rule] is more than an ethical standard. It adds a novel procedural step—the opportunity for a pre-service adversarial hearing—and to compound the matter, ordains that the hearing be conducted with new substantive standards in mind.

Stern v. United States District Court, 214 F.3d 4, 20 (1st Cir. 2000).

Recently, some prosecutors have revived the earlier arguments about the proper reach of ethics rules. One target is a rule that has been around for more than four decades: Model Rule 3.8(d), which was based on Disciplinary Rule 7-103(B) of the ABA Model Code of Professional Responsibility (1970). This rule requires prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. . . .” Several years ago, in an opinion interpreting this rule, the ABA’s ethics committee confirmed that the rule means what it says: Prosecutors must disclose “all evidence or information . . . that tends to negate the guilt of the accused,” and not just evidence that would otherwise have to be disclosed under the constitutional case law, statutes, or procedure rules. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 09-454 (July 8, 2009).

Some prosecutors question whether ethics rules may expand on prosecutors’ disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). Brady and its progeny hold that, as a matter of due process, a prosecutor must turn over evidence that is favorable to the accused but only if the evidence is “material,” meaning that it might tip the balance between a conviction and an acquittal. North Dakota’s Supreme Court recently endorsed the plain language of Rule 3.8(d) in Matter of Feland, 2012 N.D. 174 (2012), disciplining a prosecutor who withheld favorable evidence that was not necessarily material. But an earlier decision of the Ohio Supreme Court, Disciplinary Counsel v. Kellogg-Martin, 923 N.E.2d 125 (Ohio 2010), went the other way, finding that, despite the ethics rule, a prosecutor is required only to comply with the constitutional obligation. The court may have been motivated by a concern that, as written, Rule 3.8(d) is an illegitimate procedural rule in the garb of an ethics rule.

On similar grounds, some prosecutors have opposed the newest prosecutorial ethics rules, ABA Model Rules 3.8(g) and (h). These govern prosecutors’ conduct when they discover new evidence of innocence after securing a criminal conviction. Rule 3.8(g) says that prosecutors must disclose the new evidence and conduct an investigation if the evidence is “credible and material” and makes it reasonably likely that the convicted defendant is innocent. If the investigation leads to “clear and convincing evidence” of the defendant’s innocence, Rule 3.8(h) says the prosecutor must try to remedy the injustice. So far, eight states have adopted versions of one or both rules, but some prosecutors have objected, not on the ground that the obligation to investigate and rectify wrongful convictions is excessive, but simply on the ground that the obligation should not be codified in ethics rules.

The question about how to label a rule is, at bottom, a question about the scope of courts’ authority to supervise and regulate the legal profession. There is no reason why courts’ supervisory authority should not overlap with the legislative power to regulate procedure in criminal or civil cases—these need not be mutually exclusive. So the question may be: When does the judiciary’s ethics rulemaking authority go too far? Courts evidently have intuitions about what belongs in a professional code, as does the ABA, but until these intuitions are fully articulated and a consensus develops around them, prosecutors, and perhaps other lawyers as well, remain free to argue that certain rules of professional conduct just don’t belong.