In the Matter of the Prosecutor’s Ethics

By Meredith Ladd

Meredith Ladd is an associate in the Richardson, Texas, office of Brown & Hofmeister.

Hi, my name is Meredith Ladd. I am representing the city and the state against you. What this means is that I am not your attorney. Since I am not your attorney, you have the right not to say anything to me and you can set the case filed against you for trial. You have been charged with . . . .”

Many government attorneys will recognize a spiel much like this from their past or current service as a prosecutor. As one of my duties for the firm where I am an associate, I serve as a municipal court prosecutor for several small- to mid-size cities. For many citizens this is the only time they may encounter members of their local government or attend court. In my role as a municipal prosecutor, my responsibilities include ensuring that “justice is done”1 and acting as the city’s liaison to the citizens whom the city serves. This “frontline” role can create an ethical challenge for all city attorneys.2

Ethical Rules

The American Bar Association Model Rules of Professional Conduct provide guidance for government attorneys facing such a dual role. An attorney dealing with an unrepresented person shall not give the appearance that the lawyer is disinterested nor shall he give legal advice to the unrepresented person, other than advice to secure counsel.3 Comment 2 to Model Rules of Professional Conduct Rule 4.3 provides additional guidance for an attorney dealing with an unrepresented person in an adverse proceeding; a lawyer is not prohibited from settling a dispute or negotiating, if the lawyer has explained that he represents an adverse party.

Special rules of conduct apply to a prosecutor, which demonstrates the problem of dealing with pro se defendants. A prosecutor shall not seek to obtain waivers of important pretrial rights from an unrepresented accused person.4 This ethical obligation coupled with the court’s standard practice of granting latitude to pro se defendants5 can make effective representation of the client, the governmental entity, cumbersome, and highlights the heightened responsibilities of a prosecutor. The Model Rules are, in effect, making the prosecutor refrain from utilizing strategies to further the governmental client’s interests. Instead of using the rules of procedure to the prosecutor’s advantage, the prosecutor must avoid such strategic planning and “aid” the pro se defendant through the pretrial process. Caution must be taken in ever crossing the line or ensuring that one is following the ethical guidelines and providing what may be viewed as legal guidance to a pro se defendant.

Job Functions

A city attorney serving as a prosecutor may also face the dilemma of having gathered additional knowledge from nonprosecutorial duties. During negotiations of development plans, requests for variances to a board of adjustment or simply providing assistance to a citizen calling for information may lead to knowledge of important facts to a potential accused person’s defense. For example, a citizen calls complaining of a code violation and the citizen is connected with the city attorney’s office and the prosecutor handles the call. The citizen wants the law explained and, upon hearing the basis for the law, admits the offense. However, the citizen tells the prosecutor that she feels that she is being singled out and that everyone is committing the same violation. As a citizen, this unrepresented person called the prosecutor seeking legal clarification; however, she has now made potentially damaging statements in the event she is cited for a code violation. As a prosecutor, the attorney must ensure disclosure of his role as the representative of the state in a criminal proceeding against the citizen under the Model Rules of Professional Conduct.

Immunity

Beyond the ethical complications inherent in such a dual role, private attorneys serving as city attorneys are not guaranteed immunity from possible liability. In The Development Group, L.L.C. v. Franklin Township Board of Supervisors, the court ruled that private persons who work in concert with state actors to deprive a person of constitutionally protected rights are acting under color of state law for the purpose of a § 1983 violation.6 The attorney in The Development Group was a partner in a firm appointed as the town solicitor, his actions were deemed to “be attributed to the State” due to his function within the state system, and the terms of his employment did not remove him from potential liability.7 It is important to note that prosecutors are “absolutely immune from liability in ‘initiating a prosecution and presenting the State’s case.’”8 However, any actions not deemed by a court to consist of initiating and presenting the state’s case, such as acting as an advocate for a pro se defendant, are not protected by absolute immunity.9

In contrast, the Second Circuit recently ruled that city attorneys are absolutely immune from liability when acting in their official capacity in defense of civil suits.10 The court stated that even attorneys engaged in “questionable or harmful conduct during the course of [the] representation . . . is irrelevant. The immunity attaches to [a government attorney’s] function, not to the manner in which he performed it.”11 This opinion recognizes a city attorney’s role as an advocate of the governmental entity and removes state action from such a role. However, faced with ethical rules holding prosecutors to a higher duty than advocacy of a client, a prosecutor should not rely on this opinion to act in contravention of the jurisdiction’s version of the Model Rule 3.8.

Conclusion

It is every attorney’s duty to provide quality representation to his client. A prosecutor has the additional responsibility of acting within specialized ethical guidelines that appear to be in conflict with his duty to his client. A prosecutor must balance his ethical obligations with his duty to his client, and carry those obligations into all parts of his practice to ensure that he complies with the rules and avoids potential violations.

Endnotes

1 Comment 1 to Rule 3.8 of the ABA Model Rules of Professional Conduct states that prosecutors carry the “responsibility of a minister of justice and not simply that of an advocate.” Similarly, in Texas, Art. 2.01 of the Code of Criminal Procedure requires that prosecutors seek not to convict, but to see that justice is done.

2 However, this article will only address the problems related to the dual roles of a prosecutor.

3 MODEL RULES OF PROF’L CONDUCT R. 4.3 (2004).

4 MODEL RULES OF PROF’L CONDUCT R. 3.8(c) (2004).

5See Henderson v. Fisher, 631 F.2d 1115, 1117 (3d Cir. 1980) (citing Haines v. Kerner, 404 U.S. 519 (1972) (allegations of pro se complaint are held to less stringent standards than pleadings drafted by lawyers)).

6See 2004 WL 2812049, at *22 (E.D. Pa) (citing Dennis v. Sparks, 449 U.S. 24, 27–28 (1980) (holding that private parties conspiring with judge were acting under color of state law even though judge was immune)).

7 See 2004 WL 2812049, at *22 (citing West v. Atkins, 487 U.S. 42, 55–56 (1998) (reversing circuit court’s decision affirming summary judgment in favor of physician in inmate’s civil rights action under § 1983)).

8Henderson, 631 F.2d at 1120 (quoting Imbler v. Pachtman, 424 U.S. 409, 430–31 (1975)).

9 See Henderson, 631 F.2d at 1120 (citing Forsyth v. Kleindienst, 599 F.2d 1203, 1211–16 (3d Cir. 1979) (prosecutorial act that does not fall within presenting the state’s case is protected from § 1983 liability by qualified, not absolute, immunity.))

10See Zybryski v. Bd. of Trustees of the N.Y. Fire Dep’t Pension Fund, 2004 WL 2238503, at *6 (S.D.N.Y.) (citing Spear v. Town of W. Hartford, 954 F.2d 63, 66 (2d Cir. 1992); Barrett v. United States, 798 F.2d 565, 572–73 (2d Cir. 1986)).

11Zybryski, 2004 WL 2238503, at *6 (quoting Barrett, 798 F.2d at 573).