Tuesday, March 20, 2012

When Federal Prosecutors Need Ethics Advice

One interesting aspect of the recently-released report into prosecutorial misconduct in the case against Senator Ted Stevens provides some insight into the process by which line Assistant United States Attorneys obtain ethical advice from Main Justice.

The report (at pages 212 through 256) describes the involvement of the Professional Responsibility Advisory Office ("PRAO") and the office's advice on Brady obligations concerning key witness Bill Allen.

 The DOJ web page sets out PRAO's mission:

The mission of the PRAO is to provide prompt, consistent advice to Department attorneys and Assistant United States Attorneys with respect to professional responsibility and choice-of-law issues.

The major functions of PRAO are to:

    Provide advice to government attorneys and the leadership at the Department on issues relating to professional responsibility.

    Provide coordination with the litigating components of the Department to defend Department attorneys and Assistant United States Attorneys in any disciplinary or other hearing where it is alleged that they failed to meet their professional responsibility obligations.

    Serve as liaison with the state and federal bar associations in matters related to the implementation and interpretation of 28 U.S.C. 530B (the Ethical Standards for Attorneys for the Government Act) and any amendments and revisions to the various state rules of professional conduct.

    Conduct training for Department attorneys and client agencies to provide them with the tools to make informed judgments about the circumstances that require their compliance with 28 U.S.C. 530B (the Ethical Standards for Attorneys for the Government Act) or that otherwise implicate professional responsibility concerns.

Here, the report notes that the prosecutors twice sought PRAO's advice on their disclosure obligations. The advice given was based on faulty premises and thus did not provide safe harbor to the prosecutors.

The form that PRAO uses to summarize the questions posed and memorialize the advice given is set forth in the report. (Mike Frisch)


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