Friday, January 21, 2011

Dept of Justice Creates Professional Misconduct Review Unit

Long time readers of this blog may remember that I argued that the number one professional responsibility story of 2009 (and to a certain extent 2010 also) was prosecutorial misconduct. There seemed to be an unusually high number of important cases and news accounts of prosecutorial misconduct during the past year and a half. As a consequence, early in 2010 the Federal Dept. of Justice issued some guidance memos for all federal prosecutors regarding their obligations when it comes to sharing information with criminal defense lawyers. Go here for my old posts on this and here for all my posts on prosecutorial misconduct.

Continuing the U.S. Justice Department's efforts, Attorney General Eric Holder announced today the creation of a team of lawyers that will review cases of attorney misconduct. The Professional Misconduct Review Unit will examine misconduct findings made by the department's Office of Professional Responsibility. Holder said the new unit will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct.

Go here for the full story.

Not everyone agrees this development is good news, though. Over at the Legal Ethics Forum, Professor Stephen Gillers argues: "I see the change as making discipline harder by introducing an additional layer of (veto power) review above OPR. The change does centralize reporting of serious misconduct, which is good, but the rest of it is not good. Why not just strengthen OPR and give it the same referral authority to state disciplinary bodies? Indeed, why not bring an independent voice into OPR, perhaps removing the AG's authority? Further, the new unit cannot review an OPR finding of no intentional or reckless misconduct, only findings that there was such misconduct. So a weak OPR can block state reporting. And when OPR find intentional wrongdoing, the new unit can override that decision."

Go here to see the full discussion at the Legal Ethics Forum.

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