Introduction

Unlike any private attorney, the local prosecutor—be he district attorney, county attorney, or criminal district attorney—is an elected official whose office is constitutionally mandated and protected. Prosecutors are still subject to the Rules of Professional Responsibility, but they must police themselves at the trial court level because of their status as independent members of the judicial branch of government. Such a holding is not tantamount to making the fox guardian of the henhouse or letting the wolf keep watch on the flock, because a prosecutor who violates ethical rules is subject to the disciplining authority of the State Bar like any other attorney. Perhaps even more importantly, as mentioned above, his violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to a defendant. Lastly, he, like all elected public officials, must regularly answer to the will of the electorate. Should his conduct create too much appearance of impropriety and public suspicion, he will ultimately answer to the voters. — State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tx. 1990)

Prosecutors, like other attorneys, must adhere to the standards of professional conduct that exist in the state where they practice. Every state has a disciplinary system under which lawyers can be punished for violating ethical standards. Some acts of prosecutorial misconduct, apart from leading to reversals of convictions, can constitute ethical violations and thus subject the prosecutor to disciplinary action by the state bar authority.

Discipline of any lawyer is a serious matter, because it can lead to the permanent loss of the lawyer’s license to practice in the state. As with regular criminal defendants, therefore, lawyers entering the disciplinary system are afforded rights to ensure fair treatment. A thorough investigation of the case is conducted, and the lawyer is given the opportunity to present a defense. Disciplinary proceedings are normally kept confidential unless the bar authority or court imposes a public punishment. Funding for the disciplinary authority’s operation usually comes from an annual fee assessed on all lawyers who practice in the state.

The process usually begins with the filing of a complaint at the bar disciplinary authority. For private attorneys, the complainant is normally a dissatisfied client. Since prosecutors do not have a “”client”” in the traditional sense, the complainant may be a defendant, defense lawyer or judge. After the complaint is filed, the disciplinary authority begins an inquiry. All complaints undergo a review process that might lead to the filing of formal charges against the lawyer, a trial-like formal hearing and, if warranted, the imposition of a punishment. Final decisions of the disciplinary authority can usually be appealed to the courts. In some states, the highest court is required to review all cases that result in suspension or disbarment.

Actual punishment of a lawyer can take several forms, depending on the particular circumstances, including the severity of the offense. Punishment in most states, however, follows the same basic progression in severity: private admonition or reprimand, public reprimand, suspension from the practice of law for a set period of time, and permanent disbarment from the practice of law. Additionally, the lawyer may also be assessed the cost of the disciplinary proceedings, which can run to thousands of dollars. In some cases, a period of probation with conditions the attorney must satisfy can be imposed in lieu of a more severe punishment. The disciplinary authority or court, at any stage of the process, may decide against imposing any sanction and dismiss the complaint.

The Center’s Findings:

The Center analyzed dozens of cases since 1970 in which local prosecutors appeared before state bar authorities for their misconduct.

Punishable misconduct by a prosecutor can take many forms. Prosecutors have faced discipline for committing crimes such as forgery and drug possession and, in jurisdictions where prosecutors are allowed to keep a private law practice on the side, for having conflicts of interest. In keeping with our study, however, we selected only those cases involving misconduct that affected the fundamental fairness of pending criminal proceedings or infringed on the constitutional rights of criminal defendants.

Examples of such misconduct include:

discovery violations;

improper contact with witnesses, defendants, judges or jurors;

improper behavior during hearings or trials;

prosecuting cases not supported by probable cause;

harassing or threatening defendants, defendants’ lawyers or witnesses;

using improper, false or misleading evidence;

displaying a lack of diligence or thoroughness in prosecution; and

making improper public statements about a pending criminal matter.

Out of 44 attorney disciplinary cases:

In 7, the court dismissed the complaint or did not impose a punishment.

In 20, the court imposed a public or private reprimand or censure.

In 12, the prosecutor’s license to practice law was suspended.

In 2, the prosecutor was disbarred.

In 1, a period of probation was imposed in lieu of a harsher punishment.

In 24, the prosecutor was assessed the costs of the disciplinary proceedings.

In 3, the court remanded the case for further proceedings.

In two of the 44 cases, In re Christoff and In re Conduct of Burrows, two prosecutors were disciplined. The case of Hartford, Conn., prosecutor John Massameno was an action for declaratory relief that arose out of a pending state attorney grievance committee proceeding. Massameno argued that the disciplinary committee lacked the authority to punish him. The state high court disagreed and remanded the case to the committee, which subsequently cleared him of all wrongdoing in March 1997.

Of the 20 censures or reprimands, 19 are public. Appellate opinions that cite prosecutors for misconduct do not, for the most part, name the prosecutor who broke the rules. The Oklahoma Court of Criminal Appeal in the case of Peninger v. State offers a plausible explanation as to why courts are reluctant to name misbehaving prosecutors in their opinions: Publishing the name of a prosecutor (or any other kind of lawyer) is tantamount to issuing a public censure without affording the prosecutor the due process protections to which they are entitled in the attorney disciplinary system.

Suspensions in the cases found by the Center typically ranged from thirty days to six months. In the case of L. Gilbert Farr, the court imposed a suspension of six months on top of Farr’s self-imposed two-year suspension. In the case of L. Forrest Price, the court imposed a five-year suspension, then stayed all but two years plus the time it would take him to comply with certain conditions. In the case of James Ramey, the court suspended him indefinitely with no possibility for reinstatement for three months.

Disbarment is the most serious professional penalty for an attorney. In the case of Kenneth Peasley, the full state disciplinary commission recommended disbarment in November 2002. Peasley appealed; his case is pending before the Arizona state Supreme Court. In the case of Thurston County, Wash., prosecuting attorney Charles O. Bonet, the Washington Supreme Court ruled in August 2001 that Bonet violated the state’s attorney ethics rules and remanded the case to the disciplinary board to impose appropriate sanctions. On remand, the disciplinary board hearing officer recommended disbarment. Bonet was officially disbarred in April 2003.

In 24 cases, the prosecutors had to pay all or part of the cost of their hearings. The amounts that could be determined from the opinions ranged from $272.20 in the case of Linda J. Hansen to $12,156 in the case of Kenneth N. Johnson.

Disciplinary hearings often involve complex or novel legal issues. In the case of York County, Pa., district attorney Hugh Stanley Rebert, the Pennsylvania Supreme Court was asked to define the level of mental culpability necessary to prove whether Rebert’s failure to disclose evidence to the defendant violated the ethics rules. The court did so and remanded the case to the disciplinary board for further proceedings. Rebert’s disciplinary records, as of May 2003, show no public sanctions have ever been imposed against him.

Prosecutors who faced disciplinary committees because of their professional conduct