ABA publishes Formal Opinion on duties of supervisory prosecutors

As you probably remember, in Connick v. Thompson and in Smith v. Cain the US Supreme Court was faced with allegations of misconduct by the District Attorney's Office in New Orleans including allegations that the DA had failed to train prosecutors about their duty to disclose exculpatory evidence.  Meanwhile, many other courts continue to overturn convictions due to prosecutorial misconduct.  (Go to the prosecutors label on this blog and scroll down for more.)  You would think that prosecutors would know their duties, but either because they don't or because they don't care, prosecutorial misconduct continues to be an epidemic.

In an attempt to provide some guidance, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 467, addressing the managerial and supervisory responsibilities of prosecutors.  The summary of the opinion is as follows:

Model Rules 5.1 and 5.3 require lawyers with managerial authority and supervisory lawyers, including prosecutors, to make “reasonable efforts to ensure” that all lawyers and nonlawyers in their offices conform to the Model Rules. Prosecutors with managerial authority must adopt reasonable policies and procedures to achieve these goals. Prosecutors with direct supervisory authority must make reasonable efforts to ensure that the lawyers and nonlawyers they supervise comply with the Rules. Where prosecutors have both managerial and direct supervisory authority, they may, depending on the circumstances, be required to fulfill both sets of obligations. The particular measures that managerial and supervisory prosecutors must implement to comply with these rules will depend on a variety of factors, including the size and structure of their offices.

Of particular interest, the opinion states that supervisors in prosecutors' offices should create a “culture of compliance” by emphasizing ethical values and obligations during the hiring process, providing incentives such as positive reviews, promotions and raises for ethical behavior, protecting and rewarding lawyers who report misconduct up the ladder within the office and by internally disciplining those who violate professional conduct rules.

I have nothing against all these suggestions and I should not be surprised by them since the reason we need to stress a need to "create" a culture of compliance with ethical rules is that there seems to be a history of disregard for them.  But it always bugs me to know there is a need to remind prosecutors and their supervisors that they have a duty to be ethical.