The federal prosecutors are trying to opt out of the same ethical constraints that apply to other prosecutors and all other lawyers. They want to be in their own system where they are the sole arbiter and judge of whether they have done anything wrong. They are fearful of any outside body looking over their shoulder and having any control over them in matters of unethical conduct. This idea of letting the foxes guard the hen house has even raised the hackles of the Conference of Chief Justices of the Supreme Courts of the States. The idea has been condemned by every Chief Justice of every Supreme Court of every state in the Union in a unanimous resolution, opposing Attorney General Reno when she took Former Attorney General Thornburgh's policy to the extreme and enacted Title 28 of the Code of Federal Regulations, part 77.

This federal regulation purports to exempt federal prosecutors from the ethical proscription that prevents a lawyer from contacting an individual who is represented by an attorney in a matter and communicating with that represented individual about the matter without first contacting the lawyer who represents the individual. This aberrant notion first reared its head in a policy memorandum from Former Attorney General Thornburgh. But it was Attorney General Reno who transformed this policy into a federal regulation.

The danger of this perniciously arrogant enactment was recently made evident in a case tried in United States District Court in Houston, Texas. The prosecutor wanted to sneak behind the back of the defendant's attorney during the case, to persuade the defendant to give up his defense, plead guilty and become a government stooge. Fortunately, the District Court Judge presiding over the case would not allow this prosecutor to sully the integrity of his Court. He prevented the prosecutor from implementing his nefarious plan. When the trial concluded and the defendant was acquitted of all charges, defense counsel was informed of the underhanded tactics the prosecutor had wanted to employ.

In 1990, a House of Representatives Government Operations Subcommittee explored the Department's internal controls and asked the Office of Professional Responsibility about what actions it had taken in each of ten cases in which there had been written findings of prosecutorial misconduct by federal judges. To no one's surprise, no disciplinary action had been taken in any of the ten cases. And in the House Waco investigatory hearings of 1995, internal agency memorandum of the Department were revealed, which characterized the intentional concealment of evidence that cast doubt on the legitimacy of the prosecutor's case as a standard practice, as "Prosecution 101." Imagine the effrontery of admitting that cheating is "Prosecution 101," and at the same time wanting to be the sole judge of your own ethics!

There are a couple of Court of Appeals cases that gainsay the dangers of letting these foxes guard the hen house. In United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993), prosecutors concealed evidence and, when they were caught, they lied about it. The appellate court was so troubled that Judge Alex Kozinski (a Reagan appointee) expressed his concern over the lack of supervision and control exercised over the prosecutor by his superiors. He wondered how ". . . a serious claim of prosecutorial misconduct remains unresolved - even unaddressed - until oral argument in the Court of Appeals." Id. at 1320. In the famed El Rukn street gang prosecution in Chicago, the prosecution plied informants with alcohol, drugs, and sex in federal offices in exchange for their "cooperation." They knowingly used perjured testimony. After two years, the Department's Office of Professional Responsibility did recommend that one prosecutor be terminated, but until very recently, he still remained on the payroll.

The Canons of Ethics, the Code of Professional Responsibility, the Ethical Considerations, and the Disciplinary Rules all exist to protect the public and the profession from improper and unethical conduct through disciplinary systems operated by the state supreme courts. The final arbiter in complaints against lawyers for misconduct is the judiciary. Generally speaking, there is a process for screening complaints that goes through a series of steps that include other attorneys from varying backgrounds and, oftentimes, some lay individuals. This system has been in existence in all of our states for a long time. The system has not prevented the prosecution and conviction of defendants in either state or federal courts. What it has done is ensure that lawyers, whether for the prosecution or the defense, perform their function with honesty and integrity, so that the public can have confidence in the system and protection from egregious, outrageous conduct.

Recently, however, the federal prosecutors have tried to exempt themselves from the same rules that apply to everyone else who practices law. They have made the bogus claim that judicial scrutiny over their practice of law violates the doctrine of separation of powers. This is a baseless argument. The whole concept behind the separation of powers is a tripartite government operating through a system of checks and balances where one part helps prevent the other parts from engaging in excessive conduct.

This principle of judicial control over prosecutors has a solid place in our history. At the turn of the century, prosecutors were arguing that courts could not subject them to discipline because they were subject to impeachment. The courts, then, as now, correctly recognized that while impeachment meant that they could lose their office, that did not mean that they should retain their eligibility to practice law because of their improper conduct. If they engage in improper conduct, they should lose their license. If they lose their office as a consequence of their failure to observe the requirements of the practice of law, then that is a collateral consequence. The courts retained the duty to the public of insuring the integrity of the profession. Commonwealth ex. rel. Pike County Bar Association v. Stump, 247 Ky. 589 (1993); In Re Disbarment of McCowen, 177 Cal. 93 (1917); In Re Voss, 11 N.D. 540 (1902); In Re Norris, 60 Kan. 649 (1899); In Re Jones, 70 Vt. 71 (1898). For a more recent case, see Ramsey v. Board of Professional Responsibility of the Supreme Court of Tennessee, 771 S.W. 2d 116 (Tenn.), cert. denied, 493 U.S. 917 (1989).

The Department of Justice is seeking to exempt itself from the ethics which govern all other prosecutors and lawyers. This carbuncle on the face of the law would allow the Attorney General to be the sole arbiter of the ethical conduct of those lawyers working for the Department. Federal prosecutors cannot be trusted to govern themselves with no checks and balances on their conduct. Preserve the integrity of the profession by phoning and faxing your congressional representatives to oppose this dangerous threat to the constitutional principle of checks and balances that has served our Republic so well for over two hundred years. Urge them to support House Bill, H.R. 232, which would amend Title 28 of the United States Code to require prosecutors in the Department of Justice to be ethical! The House Switchboard Operator can connect you to your Representatives, at (202)225-3121. The Senate Operator will connect you to your Senators, at (202)224-3121.

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