* Assistant Professor, Shepard Broad Law Center, Nova Southeastern University. The author wishes to thank Tony Chase, Catherine Claypoole, Michael Dale, Todd Rakoff, and Deanna Sampson for reviewing and commenting on earlier drafts of this article.
1 295 U.S. 78, 88 (1945) [hereinafter Berger].
2 Model Code of Professional Responsibility EC 7–13 (1969).
3 Model Rules of Professional Conduct Rule 3.8 cmt. 1 (1983).
4 See, e.g., Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 48 (1991).
5 See, e.g., Geoffrey Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 U. Chi. L. Rev. 1293, 1294 (1987) [hereinafter Miller, Government Lawyers]; Peter L. Strauss, The Internal Relations of Government: Cautionary Tales From Inside the Black Box, 61 Law & Contemp. Probs. 155, 156–57 (1998) [hereinafter Strauss, Internal Relations].
6 See, e.g., Dr. George T. Felkenes, The Prosecutor: A Look at Reality, 7 Sw. U. L. Rev. 98, 119 (1975) (discussing actual prosecutors’ attitudes).
7 See, e.g., Miller, Government Lawyers, supra note 5, at 1295.
8 See, e.g., Jonathon Macey & Geoffrey Miller, Reflections on Professional Responsibility in a Regulatory State, 63 Geo. Wash. L. Rev. 1105, 1115–17 (1993).
9 See infra Part I.
10 See infra Part II.
11 See infra Part III.
12 See infra Part IV.
13 See infra notes 14–21 and accompanying text.
14 Foute v. State, 4 Tenn.(3 Hayw.) 98, 99 (1816), quoted in John Jay Douglas, Ethical Issues in Prosecution (2d ed. 1993).
15 See Russell Pearce, Rediscovering the Republican Origins of Legal Ethics Codes, 6 Geo. J. Legal Ethics 241, 243 (1992).
16 See Hon. George Sharswood, An Essay in Professional Ethics (F.B. Rothman 5th ed. 1993) (1854), cited in Bruce Green, Why Should Prosecutors Seek Justice?, 26 Fordham Urb. L.J. 607, 612–13 (1999) [hereinafter Green, Seek Justice].
17 295 U.S. at 88. In Berger, the defendant’s conviction for conspiracy to utter counterfeit notes was reversed on grounds of prosecutorial misconduct, including misstating facts and witness testimony in the cross-examination of witnesses, improper suggestions of personal knowledge on the part of the prosecutor, and improper jury argument. Id. at 84. Charles Wolfram refers to the Berger opinion as “the locus classicus of the extraordinary duties of a prosecutor.” Charles W. Wolfram, Modern Legal Ethics 760 (1986).
18 Douglas, supra note 14, at 8.
19 Standards Relating to the Administration of Criminal Justice, The Prosecution Function, 3–1.2(c) (1992).
20 Model Code of Professional Responsibility EC 7–13 (1969).
21 Model Rules of Professional Conduct Rule 3.8 cmt. 1 (1983).
22 Gray Panthers v. Schweiker, 716 F.2d 23, 33 (D.C. Cir. 1983).
23 Douglas v. Donovan, 704 F.2d 1276, 1279 (D.C. Cir. 1983).
24 See Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47 (D.C. Cir. 1992). After quoting the Supreme Court’s language, Mikva noted that while “[t]he Supreme Court was speaking of government prosecutors [in Berger], . . . no one, to our knowledge (at least prior to oral argument) has suggested that the principle does not apply with equal force to the government’s civil lawyers. . . .” Id.
25 Id. at 48.
26 Jack B. Weinstein, Judicial Notice and the Duty to Disclose Adverse Information, 51 Iowa L. Rev. 807, 810 (1966).
27 Jack B. Weinstein & Gay A. Crosthwaite, Some Reflections on Conflicts Between Government Lawyers and Clients, 1 Touro L. Rev. 1, 4–5 (1985).
28 Griffin Bell, The Attorney-General: The Federal Government’s Chief Lawyer and Chief Litigator, or One Among Many?, 46 Fordham L. Rev. 1049, 1069 (1978), quoted in William Josephson & Russell Pearce, To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients Are in Conflict?, 29 Howard L.J. 539, 555 (1986).
29 In re Lindsey, 148 F.3d 1100, 1102 (D.C. Cir. 1998), cert. denied sub nom. Office of President v. Office of Independent Counsel, 525 U.S. 996 (1998).
30 Id.
31 See id. at 1105.
32 See id. at 1107. In contrast, the Court of Appeals for the Eighth Circuit had previously ruled that the White House could not invoke the attorney-client privilege to avoid a grand jury subpoena from the Independent Counsel for documents relating to a meeting involving White House lawyers and First Lady Hillary Rodham Clinton during the earlier stages of the Independent Counsel’s investigation, which focused on the “Whitewater” real estate transaction. See In re Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied sub nom. Office of President v. Office of Independent Counsel, 521 U.S. 1105 (1997). However, the dissenting judge essentially agreed with the view that would later be expressed by the D.C. Circuit in In re Lindsey, 148 F.3d at 1102, by contending that the White House should be afforded an attorney-client privilege, but that the privilege should give way in the context of a federal grand jury investigation of purported criminal activity. See In re Subpoena Duces Tecum, 112 F.3d. at 925. For further discussion of these cases and issues surrounding a government attorney-client privilege, see Michael Stokes Paulson, Who “Owns” the Government’s Attorney-Client Privilege?, 83 Minn. L. Rev. 473 (1998); Adam M. Chud, Note, In Defense of the Government Attorney-Client Privilege, 84 Cornell L. Rev. 1682 (1999); and Bryan S. Gowdy, Note, Should the Federal Government Have an Attorney-Client Privilege?, 51 Fla. L. Rev. 695 (1999).
33 In re Lindsey, 148 F.3d at 1109. The Eighth Circuit similarly relied, at least in part, on a conception of the public interest serving role of government agency attorneys, in refusing to extend the attorney-client privilege to the White House in the context of that matter. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 920 (stating: “[T]he general duty of public service calls upon government employees and agencies to favor disclosure over concealment. The difference between the public interest and the private interest is perhaps, by itself, reason enough to find Upjohn [Co. v. United States, 449 U.S. 383 (1981) (recognizing an attorney-client privilege for corporations)] unpersuasive in this case”).
34 See In re Lindsey, 148 F.3d at 1112.
35 See Office of President v. Office of Independent Counsel, 525 U.S. 996 (1998) (denying sub nom. writ of certiorari).
36 See Steve Berenson, Politics and Plurality in a Lawyer’s Choice of Clients: The Case of Stropnicky v. Nathanson, 35 San Diego L. Rev. 1, 40–46 (1998).
37 Wolfram, supra note 17, at 580, (quoting 2 Trial of Queen Caroline 8 (1821)). For a detailed discussion of the context within which Lord Brougham uttered this statement, as well as a discussion of the debate among scholars whether the sentiments expressed continue to represent the prevailing view of current lawyers, see Catherine J. Lanctot, The Duty of Zealous Representation and the Federal Government Lawyer?: The Three Hardest Questions, 64 S. Cal. L. Rev. 951, 960 & nn.27–30 (1991).
38 See Thomas W. Merrill, High Level, “Tenured” Lawyers, 61 Law & Contemp. Probs. 83, 96 (1998); David A. Strauss, The Solicitor General and the Interests of the United States, 61 Law & Contemp. Probs. 165, 169 (1998) [hereinafter Strauss, The Solicitor General]; David M. Rosenzweig, Note, Confession of Error in the Supreme Court by the Solicitor General, 82 Geo. L.J. 2079 (1994).
39 Strauss, The Solicitor General, supra note 38, at 169.
40 A number of commentators have noted the paucity of consideration given to government lawyers in formal codes of professional responsibility. See, e.g., Lanctot, supra note 37, at 967; James Harvey III, Note, Loyalty in Government Litigation: Department of Justice Representation of Agency Clients, 37 Wm. & Mary L. Rev. 1569, 1592 (1996).
41 Roger C. Cramton, The Lawyer as Whistleblower: Confidentiality and Government Lawyer, 5 Geo. J. Legal Ethics 291, 296 (1991).
42 See Lanctot, supra note 37, at 1003–04 & n.204.
43 See Harvey, supra note 40, at 1570.
44 See id.
45 Federal Bar Ass’n Comm. on Professional Ethics, Op. 73–1 (1973).
46 Federal Bar Ass’n Federal Ethical Considerations (1973), in C. Normand Poirier, The Federal Government Lawyer and Professional Ethics, 60 A.B.A. J. 1541, 1542–44 (1974).
47 See id. FEC 5–1 (stating: “The immediate professional responsibility of the federal lawyer is to the department or agency in which he is employed”).
48 Model Rules of Professional Conduct for Federal Lawyers (Federal Bar Ass’n 1990), reprinted in Selected Statutes, Rules and Standards on the Legal Profession 568 (West 1994).
49 See id. Rule 1.13 (entitled: “The Federal Agency as the Client”) (stating: “[A] Government lawyer represents the Federal Agency that employs the Government lawyer”).
50 Restatement (Third) of Law Governing Lawyers § 156 cmt. c (Tentative Draft No. 8, 1997) (entitled “Representing Governmental Client”). The Restatement suggests that a definitive answer regarding who is the client of the government attorney may vary according to the circumstances. See id.
51 Model Rules of Professional Conduct for Federal Lawyers, supra note 48, Rule 1.6 cmt. (stating: “Generally, a federal agency is the government lawyer’s client for purposes of this Rule”).
52 “As of July 1999, 41 states and the District of Columbia had adopted some version of the Model Rules.” Geoffrey C. Hazard, Jr. et al., The Law and Ethics of Lawyering 15 (3rd ed. 1999).
53 Model Rules of Professional Conduct Rule 1.13 cmt. (1983) (stating: “Although in some circumstances the client may be a specific agency, it is generally the government as a whole”).
54 Model Code of Professional Responsibility EC 7–14 (1969) (stating: “A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice”).
55 See Harvey, supra note 40, at 1594.
56 See Cramton, supra note 41, at 296.
57 See id.
58 See id. at 297.
59 See Robert P. Lowry, Who is the Client of the Federal Government Lawyer?: An Analysis of the Wrong Question, 37 Fed. Bar. J. 61 (1978).
60 See supra notes 19–20.
61 Model Rules of Professional Conduct Preamble ¶ 16 (1983).
62 See Federal Ethical Considerations, supra note 46, FEC 6–1 (stating that the federal lawyer’s duty to represent a client competently must “be fulfilled with special regard to the public interest”).
63 Model Rules of Professional Conduct for Federal Lawyers, supra note 48, Preamble (stating: “In addition to the high standards of conduct expected of all Federal lawyers, the Government lawyer has a specific responsibility to strive to promote the public interest”).
64 Restatement (Third) of Law Governing Lawyers § 156 cmt. f (Tentative Draft No. 8, 1997)(entitled: “Representing Governmental Client”).
65 See Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy 11 (1992).
66 See id. at 4–5.
67 See generally State Attorneys General: Powers and Responsibilities (Lynne M. Ross ed., 1990).
68 28 U.S.C. § 518 (1998).
69 See, e.g., 15 Ill. Comp. Stat. 205/6.5 (West 1997)(creating Consumer Utilities Unit within the Office of the Attorney General, with the power to intervene in, or initiate proceedings relating to the provision of electric power, when the Attorney General determines that doing so is in the interest of Illinois’ citizens); Mass. Gen. Laws Ann. ch. 93A, § 4 (West 1997) (authorizing State Attorney General to enforce state consumer protection act in order to protect the public interest).
70 See, e.g., Fla. Stat. Ann. § 350.0611 (West 1999) (establishing “Public Counsel” to represent the public interest in proceedings before the Florida Public Service Commission involving the setting of utility rates); Fla. Stat. Ann. § 408.40 (West 1999) (establishing “Public Counsel” to promote the public interest in proceedings before the Florida Agency for Health Care Administration).
71 See infra notes 74–95 and accompanying text.
72 See infra notes 96–112 and accompanying text.
73 See infra notes 113–137 and accompanying text.
74 See Zacharias, supra note 4, at 48.
75 See id.
76 Id.; see also George T. Frampton Jr., Some Practical & Ethical Problems of Prosecuting Public Officials, 36 Md. L. Rev. 5, 8 (1976) (stating that “more often than not, the prosecutor is thrown back on his own subjective values”).
77 See Zacharias, supra note 4, at 48.
78 See id. at 60.
79 See id.
80 See id. at 66. Other failures of essential elements of a fair criminal trial identified by Zacharias include: grossly unequal resources between the prosecution and the defense; biased and overactive tribunals; decisions based on nonevidentiary considerations; improper jury selection procedures; improper denials of access to witnesses; and improper opening and closing arguments. See id. at 74, 85, 88, 90, 95.
81 See id. at 72.
82 See Zacharias, supra note 4, at 53.
83 Report by the District of Columbia Bar Special Committee of Government Lawyers and the Model Rules of Professional Conduct [hereinafter D.C. Bar Report], reprinted in The Wash. Lawyer, Sept.–Oct. 1988, at 53.
84 Cramton, supra note 41, at 299 (quoting D.C. Bar Report, supra note 83, at 10).
85 Geoffrey Miller, Government Lawyers, supra note 5, at 1294.
86 Josephson & Pearce, supra note 28, at 564 (quoting Douglas Sale, The City Attorney’s Relationship with Council and Staff: Determining Who is the Client in Day-to-Day Affairs, 11 Current Mun. Probs. 10, 11 (1984)).
87 See Lanctot, supra note 37, at 1005.
88 See id.
89 See id.
90 See Frank Easterbrook, The State of Madison’s Vision of the State: A Public Choice Perspective, 107 Harv. L. Rev. 1328, 1339 (1994) (citing Kenneth J. Arrow, Social Choice and Individual Values 2–6, 59–60, 89 (2d ed. 1963)).
91 See id. at 1333.
92 See id. at 1341.
93 See, e.g., id. at 1342.
94 See generally Dion Casey, Agency Capture: The United States Department of Agriculture’s Struggle to Pass Food Safety Regulations, 7 Kan. J.L. & Pub. Pol’y 142 (1998).
95 See generally Bradford C. Mank, Superfund Contractors and Agency Capture, 2 N.Y.U. Envtl. L.J. 34 (1993).
96 See generally William Simon, The Ethics of Criminal Defense, 91 Mich. L. Rev. 1703 (1993) (endorsing some, but not all, examples of what the author refers to as aggressive defense). See also Green, Seek Justice, supra note 16, at 618.
97 See In re Winship, 397 U.S. 358, 364 (1970) (stating: “we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”).
98 See Green, Seek Justice, supra note 16, at 615–16 & nn.29–36. On the other hand, it is equally clear that prosecutors enjoy a number of systemic advantages that tend to counteract the advantages enjoyed by defendants in criminal litigation. Such prosecutorial advantages include the ability to conduct grand jury and police investigations, unique prestige and symbolic power with judges and jurors, and great advantages in available resources (at least when compared to the typical criminal defendant). See Zacharias, supra note 4, at 59; see also Green, Seek Justice, supra note 16, at 625–26.
99 There is certainly evidence that as a descriptive matter, many prosecutors in fact believe that they must abandon the public interest serving role and do whatever possible to secure convictions, in order to maintain balance in the criminal justice system. See generally Dr. George T. Felkenes, The Prosecutor: A Look at Reality, 7 Sw. U. L. Rev. 98 (1975) (empirical study showing tendency of prosecutors to view conviction as the ultimate end to be pursued).
100 See, e.g., Josephson & Pearce, supra note 28, at 565; Lanctot, supra note 37, at 985.
101 See Cramton, supra note 41, at 298.
102 See Miller, Government Lawyers, supra note 5, at 1296.
103 See id.
104 See Strauss, Internal Relations, supra note 5, at 156–57. Reported decisions in this saga include: New York v. United States Dept. of Trans., 539 F. Supp. 1237 (S.D.N.Y. 1982), rev’d, 715 F.2d 732 (2d Cir. 1983), cert. denied and appeal dismissed, 465 U.S. 1055 (1984); and New York v. United States Dept. of Trans., 700 F. Supp. 1294 (S.D.N.Y. 1988).
105 See Strauss, Internal Relations, supra note 5, at 156.
106 See id.
107 See id.
108 See id.
109 See id.
110 See Strauss, Internal Relations, supra note 5, at 157.
111 See id.
112 See id.
113 See, e.g., Macey & Miller, supra note 8, at 1115–17 (offering several reasons why government agency attorneys will advance their own personal interests rather than the public interest).
114 See, e.g., Albert Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 105 (1968–69); Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?, 83 Va. L. Rev. 939, 966 (1997); Stephen J. Schulhoffer, Criminal Justice Discretion in a Regulation System, 17 J. Legal Stud. 43, 50–52 (1988).
115 See Alschuler, supra note 114, at 105.
116 James Eisenstein, Counsel for the United States: U.S. Attorneys in the Political and Legal Systems 174 (1978).
117 See Daniel R. Fischel, Payback 98, 111–12 (1995).
118 See Daniel M. Kahan, Reinterpreting Interpretive Criminal-Lawmaking Power Within the Executive Branch, 61 Law & Contemp. Probs. 47, 52 (1998).
119 See id.
120 See, e.g., Alschuler, supra note 114, at 106; Richman, supra note 114, at 966; Schulhoffer, supra note 114, at 50–52.
121 See Alschuler, supra note 114, at 106; Richman, supra note 114, at 966; Schulhoffer, supra note 114, at 50–52.
122 Richman, supra note 114, at 966.
123 See Macey & Miller, supra note 8, at 1115–17.
124 See id.
125 See id. at 1115–16.
126 See id. at 1117.
127 See id.
128 See Macey & Miller, supra note 8, at 1119.
129 See, e.g., Michael Selmi, Public v. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L. Rev. 1401, 1404 (1998).
130 Id.
131 See id. at 1419–20, 1434.
132 See id. at 1404.
133 Other reasons that Selmi gives for the differences in litigation outcomes include lack of incentives for government attorneys to pursue large damage awards that they will not personally profit from and frustration with government work that will cause “true believers” in civil rights to leave government employment. See id. at 1443–44.
134 See Selmi, supra note 129, at 1444.
135 See id.
136 See id. at 1445.
137 See id. at 1443–45.
138 In using this terminology, I do not intend to make any grand statements as to the viability of the public/private distinction. I am well aware of the longstanding, voluminous, and often highly effective critique that has been launched regarding the public/private distinction. It has been nearly two decades since the Pennsylvania Law Review published its influential symposium edition regarding the distinction, see Symposium, The Public-Private Distinction, 130 U. Pa. L. Rev. 1289–1602 (1982), in which Professor Duncan Kennedy artfully noted that “[w]hen people hold a symposium about a distinction, it seems almost certain that they feel it is no longer a success. Either people can’t tell how to divide situations up between categories, or it no longer seems to make a difference on which side a situation falls.” Duncan Kennedy, The Stages of Decline of the Public/Private Distinction, 130 U. Pa. L. Rev. 1349, 1349 (1982). Since that time, additional writings have served to further undermine the distinction. See generally Alan Freeman & Elizabeth Mensch, The Public-Private Distinction in American Law and Life, 36 Buff. L. Rev. 237 (1987); Donald Pongrace, A Symposium of Critical Legal Study: Stereotypification of the Fourth Amendment’s Private/Public Distinction: An Opportunity for Clarity, 34 Am. U. L. Rev. 1191 (1985). Nonetheless, even if the distinction no longer holds at its margins, or even well inside of them, the distinction provides a useful descriptive device for analyzing some of the important differences between the critiques of the public interest serving position discussed previously, and the defense of the public interest serving position that will be discussed. Cf. generally Ruth Gavison, The Public/Private Distinction in Feminism, 45 Stan. L. Rev. 1 (1992) (suggesting that complete rejection of the public/private distinction may be counterproductive).
139 It is important to be precise about what one has in mind when using the public/private terminology. Karl Klare identified at least four different sets of connotations that can be associated with the terms public and private. See Karl Klare, The Public/Private Distinction in Labor Law, 130 U. Pa. L. Rev. 1358, 1358 & n.2 (1982). These are: (1) open versus intimate; (2) the realms of work and government versus the realms of social and family life; (3) personal versus that which concerns others; and (4) the state versus civil society. Id. Ruth Gavison, in turn, also identifies four senses in which the terms can be used: (1) accessible versus inaccessible; (2) freedom versus interference; (3) individual versus society; and (4) a complex clusters of senses combining the previous three in various ways. Gavison, supra note 138, at 6. Of all of these formulations, Gavison’s third sense is probably closest to the usage here.
140 See Pongrace, supra note 138, at 1194 & n.16.
141 See id.
142 See id. at 1194 & n.15.
143 See supra notes 74–82 and accompanying text.
144 See Zacharias, supra note 4, at 53–56.
145 See, e.g., David Luban, Lawyers and Justice: An Ethical Study 68 (1988); Zacharias, supra note 4, at 54.
146 See, e.g., Geoffrey Hazard, Ethics in the Practice of Law 129 (1978); Luban, supra note 145, at 74, 85; Zacharias, supra note 4, at 55. Note that Luban ultimately rejects both the truth seeking and protection of individual rights and dignity justifications for the adversary system, but nonetheless argues that the adversary system is justified, because it is not significantly worse than any other system designed to determine truth and protect individual rights, and therefore, the costs of switching to another system would not be warranted. See Luban, supra note 145, at 92.
147 See supra notes 96–99 and accompanying text.
148 See supra notes 83–89 and accompanying text.
149 See supra notes 90–95 and accompanying text.
150 See Hanna F. Pitkin, Justice: On Relating Private and Public, 9 Pol. Theory 327, 344 (1981); see also Anthony Kronman, The Lost Lawyer 28–34 (1994).
151 Berenson, supra note 36, at 41–42 (quoting Naomi R. Cahn, Inconsistent Stories, 81 Geo. L.J. 2475, 2497 n.98 (1993) (quoting Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 Stan. L. Rev. 589, 605 (1985) [hereinafter Rhode, Ethical Perspectives])); see generally Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 4 Am. B. Found. Res. J. 613 (1986).
152 See infra note 252 and accompanying text.
153 See generally Alasdair MacIntyre, After Virtue (1981). See also W. Bradley Wendel, Public Values and Professional Responsibility, 75 Notre Dame L. Rev. 1, 95–100 (1999) (noting that plurality of values affects questions of legal ethics as well broader questions of moral philosophy).
154 See Green, Seek Justice, supra note 16, at 634.
155 Id. Of course, these still broad objectives have been translated into a series of more specific rules governing appropriate prosecutorial practice, including the requirements that prosecutors: refrain from prosecuting charges that the prosecutor knows are not supported by probable cause; make efforts to assure that unrepresented criminal defendants are aware of the right to counsel and that opportunities to obtain counsel are made available; and do not seek to obtain waivers of important pre-trail rights from unrepresented defendants. Model Rules of Professional Conduct Rule 3.8(a)–(c). Prosecutors must similarly disclose evidence that tends to exculpate the defendant or mitigate the defendant’s culpability. See id. Rule 3.8(d); see also Green, Seek Justice, supra note 16, at 615–16 & nn.33–36.
156 See Green, Seek Justice, supra note 16, at 634.
157 See id.; accord Wendel, supra note 153, at 119 (arguing that conflicts among plural values in questions of legal ethics can be resolved through the exercise of professional judgment and the method of casuistry).
158 Green, Seek Justice, supra note 16, at 633.
159 See id. at 629.
160 See supra notes 78–82 and accompanying text.
161 See Green, Seek Justice, supra note 16, at 634–36.
162 See id. at 635.
163 See id. at 638–41.
164 See supra note 138 and accompanying text.
165 See Luban, supra note 145, at 74.
166 See id. at 85; Simon, The Ethics of Criminal Defense, supra note 96, at 1712.
167 This fact may account for the generally accepted notions of the vastly different professional roles accorded to criminal prosecutors and defense attorneys. See, e.g., Luban, supra note 145, at 58–66; Rhode, Ethical Perspectives, supra note 151, at 605; Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. Q. 1, 12 (1975).
168 Hence the practice of referring to the “plaintiff” in criminal cases as “the people” of the state of x.
169 See generally William Simon, The Practice of Justice (1998) [hereinafter Simon, The Practice]; William Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988) [hereinafter Simon, Ethical Discretion]. Simon’s complete formulation is that “[l]awyers should take actions that, considering the relevant circumstances of the particular case, seem likely to promote justice.” Simon, The Practice, supra, at 138.
170 See Simon, Ethical Discretion, supra note 169, at 1119.
171 See id.
172 See Simon, The Practice, supra note 169, at 18.
173 The best known and most articulate proponent of the latter view is David Luban. See generally Luban, supra note 145.
174 See Simon, The Practice, supra note 169, at 18.
175 See generally, e.g., Amy Gutmann & Dennis F. Thompson, Democracy and Disagreement (1996); Dennis F. Thompson, Ethics in Congress (1995); Dennis F. Thompson, Political Ethics and Public Office (1987).
176 Dennis F. Thompson, Bureaucracy and Democracy [hereinafter Thompson, Bureaucracy], in Democratic Theory and Practice 235, 237–50 (Graeme Duncan ed., 1983). Thompson presents the participatory model as one of four dominant theories that attempt to reconcile bureaucratic and democratic values. The other three he refers to as the hierarchical, professionalist, and pluralist models. Under the hierarchical model, most closely associated with Max Weber, bureaucrats are responsible for executing the policies dictated to them by their politically accountable superior officials. See id. at 237–41. Under the professional model, through expertise and education bureaucrats apply the skills and values necessary to the proper pursuit of the public good through the large measure of discretion afforded to them in bureaucratic practice. See id. at 241–44. Finally, under the pluralist model, bureaucrats respond to interested individuals and groups who are afforded opportunities to influence bureaucratic decision making. See id. at 244–45. Thompson ultimately rejects each of these models as failing to provide adequately for democratic responsibility in the conduct of bureaucracy. See id. at 246–47
177 See id. at 246–47.
178 See id.
179 See Deborah L. Rhode, Class Conflicts in Class Actions, 34 Stan. L. Rev. 1183, 1256 (1982).
180 See Lawrence M. Grossberg, Class Actions and Client-Centered Decisionmaking, 40 Syracuse L. Rev. 709, 768–69, 778 (1989).
181 See generally William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 Yale L.J. 1623 (1997).
182 See Thompson, Bureaucracy, supra note 176, at 247.
183 See id. at 245.
184 See supra note 176.
185 See Thompson, Bureaucracy, supra note 176, at 243–44.
186 See generally, e.g., H. George Frederickson, The Spirit of Public Administration (1997).
187 See Thompson, Bureaucracy, supra note 176, at 244.
188 See id.
189 See Simon, The Practice, supra note 169, at 18.
190 See id.
191 See Roberta S. Karmel, Creating Law at the Securities and Exchange Commission: The Lawyer as Prosecutor, 61 Law & Contemp. Probs. 33, 35 (1998).
192 See International Harvester Co., 104 F.T.C. 949, 1071–76 (1984). Congress subsequently added a definition of the term “unfair” to the statute that is consistent with the F.T.C. Policy Statement. See 15 U.S.C. § 45(n) (1994).
193 See Cliffdale Assoc., Inc., 103 F.T.C. 110, 174–84 (1983).
194 15 U.S.C. § 41 (1999).
195 See supra notes 96–112 and accompanying text.
196 See supra notes 96–99 and accompanying text.
197 See supra notes 96–99 and accompanying text.
198 See supra note 155 and accompanying text.
199 See supra notes 154–157 and accompanying text.
200 See supra notes 100–103 and accompanying text.
201 See supra note 100 and accompanying text.
202 For example, Thomas Merrill points out that for fiscal year 1990, 99.97% of federal civil service employees went through the year without any adverse employment action being taken against them. See Thomas W. Merrill, High-Level, “Tenured” Lawyers, 61 Law & Contemp. Probs. 83, 85 & n.13 (1998).
203 Attorneys General are voted on by the electorate in 38 states. See Council of State Gov’ts, The Book of the States 33–34 (1996).
204 Cf. J. Patrick Dobel, Personal Responsibility and Public Integrity, 86 Mich. L. Rev. 1450, 1450 (1988) (stating that “a coherent theory of public integrity should accommodate the range of prudential judgments that individual officeholders must make to perform their jobs fairly and efficiently”) (reviewing Dennis F. Thompson, Political Ethics and Public Office (1987)).
205 See Harvey, supra note 40, at 1597.
206 See Peter H. Schuck, Lawyers and Policymakers in Government, 61 Law & Contemp. Probs. 7 (1998).
207 See, e.g., Model Rules of Professional Conduct Rule 1.2 cmt. 1 (1983).
208 See supra notes 150–152 and accompanying text.
209 See, e.g., Model Rules of Professional Conduct Rule 1.2(a) (1983).
210 See supra notes 101–102 and accompanying text.
211 See supra note 103 and accompanying text.
212 These terms simply come from a junior-high level civics class understanding of the functions of the three branches of government; namely, that the legislative branch makes the law, the judicial branch interprets it, and the executive branch executes it.
213 See, e.g., John C. Woo, Lawyers in Congress, 61 Law & Contemp. Probs. 1, 5 (1998).
214 See generally, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
215 See, e.g., Kahan, supra note 118, at 47.
216 See id. at 61 n.23 (citing Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1 (1985)).
217 See Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2080 (1990).
218 See id.
219 See id. at 2080–82.
220 Cf. Wendel, supra note 153, at 100, 107 (discussing the importance of judgment and deep contextual consideration to ethical legal decision making).
221 See supra notes 104–112 and accompanying text.
222 See H.W. Perry, Jr., United States Attorneys—Whom Shall They Serve?, 61 Law & Contemp. Probs. 129, 136 (1998).
223 See id. at 137.
224 See id. at 147.
225 See supra notes 121–122 and accompanying text.
226 See supra notes 123–126 and accompanying text.
227 See supra notes 129–132 and accompanying text.
228 See supra note 134 and accompanying text.
229 See Nicholas S. Zeppos, Department of Justice Litigation: Externalizing Costs and Searching for Subsidies, 61 Law & Contemp. Probs. 171, 173–75 (1998).
230 See id. at 173.
231 See id. at 174. Zeppos points out that DOJ Honors Program participants are required to make a three year commitment to the positions, but notes that the commitment is frequently violated without sanction. See id.
232 See id.
233 See id. at 174–75.
234 See Zeppos, supra note 229, at 175.
235 See id.
236 See id.
237 See id.
238 See id. at 176–179. Zeppos also acknowledges possible trade-offs between income and personal benefits such as leisure. See id. at 176 & n.22. However, Zeppos believes that the workload for new Justice Department lawyers is sufficient to eliminate this as a significant motivation for choosing the public over the private sector. See id.
239 But see Jonathan R. Macey, Lawyers in Agencies: Economics, Social Psychology and Process, 61 Law & Contemp. Probs. 109, 111–12 (1998) (acknowledging that law students may be more idealistic than the general population, and that this tendency may be even more pronounced with regard to law students who seek to enter government service).
240 See generally Nalbandian & Edwards, The Values of Public Administration: A Comparison with Lawyers, Social Workers and Business Administrators, 4 A Rev. of Pub. Admin. 114 (1983).
241 See Selmi, supra note 129, at 1419–20, 1443–45.
242 See supra notes 134–137. But see supra notes 229–237 and accompanying text (discussing why the “resume-building” value of such experience may be overstated).
243 For example, one version of constitutional theory holds that government officials may legitimately act to protect the rights of disenfranchised minority groups. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 99–100 (1980).
244 One example of this type of discrimination would be housing discrimination against families with children. Selmi is particularly critical of the Department of Justice’s apparent focus on this type of case. See Selmi, supra note 129, at 1421, 1445.
245 Drawing a distinction between government attorneys and “private attorneys general,” may present a particularly weak example of the public/private distinction. In his article The Secret Life of the Private Attorney General, 61 Law & Contemp. Probs. 179 (1998), Jeremy Rabkin points out that the creation of such private rights of action merely represents a public decision by Congress as to which rights are to be recognized and which advocacy groups (such groups being like quasi-governmental entities in such instances) will have the right to enforce them. See id. at 179–80. Nonetheless, there does seem to be a distinction with difference between government attorneys bringing an action in the name of the United States or an individual state, and private attorneys bringing actions on behalf of individual parties.
246 The case’s primary sponsor was the San Francisco based Youth Law Center. See Sally Kestin, Foster Care Lawsuit Filed; Advocacy Group Seeks Safe Havens, Sun-Sentinel, Oct. 21, 1998, at 1A [hereinafter Kestin, Foster Care Lawsuit]. Local counsel included Fort Lauderdale attorneys Howard Talenfeld, David Bazerman, and Nova Southeastern University Law School Professor Michael Dale.
247 See Karla Bruner, Child Care System Fails; Report Faults State Bureaucracy, Public, Miami Herald, Nov. 17, 1998, at 1A; Sally Kestin, Foster Care Crisis Putting Kids at Risk; Children Are Physically Harmed, Molested, Raped in Homes and Shelters That Are Supposed to Be Havens, Sun-Sentinel, May 31, 1998, at 1A.
248 See Bruner, supra note 247, at 1A; Kestin, Foster Care Lawsuits, supra note 246, at 1A.
249 Interview with Michael Dale, Nova Southeastern University Law School Professor, in Fort Lauderdale, Fla. (Feb. 25, 2000).
250 Despite the defense lawyers’ “stonewalling” tactics, a settlement was eventually entered into in the case that all parties are optimistic will lead to improved conditions within the Broward County foster care system. See Shana Gruskin, Deal Reached in DCF Suit; Child Advocates, State Avoid Trial, Sun-Sentinel, Feb. 16, 2000, at 1B.
251 See supra note 240.
252 See supra notes 151–152 and accompanying text.
253 See supra Part I.
254 Michael Dale also points out that it is increasingly common for government and private lawyers to work together in the representation of government entities in litigation. I was involved in at least a couple such “public/private” partnerships during my tenure as an Assistant Massachusetts Attorney General. The most well known such partnership occurred when, due to resource limitations, our office joined with a number of private law firms in order to pursue litigation against the tobacco industry. Dale suggests that the private lawyers’ values may come to predominate in such partnerships. See Interview with Michael Dale, supra note 249.
255 See generally David B. Wilkins, Legal Realism for Lawyers, 104 Harv. L. Rev. 468 (1990). Wilkins, in turn, borrowed the concept of “mid-level rules” from Dennis Thompson’s writings in the field of political ethics. See id. at 516, n. 210 (citing Dennis F. Thompson, Political Ethics and Public Office 8 (1987)).
256 See supra notes 154–157 and accompanying text.
257 See supra notes 169–174 and accompanying text.
258 Michael Dale additionally points out that electoral politics, including changes in administrations and therefore agency personnel during the course of pending litigation, may also influence the manner in which government attorneys litigate cases. See Interview with Michael Dale, supra note 249.
259 486 U.S. 153 (1988).
260 See, e.g., Bruce A. Green, “Through the Glass Darkly”: How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 Colum. L. Rev. 1201, 1202 (1989) [hereinafter Green, Through the Glass Darkly].
261 See generally id.; Randall L. Klein, Sixth Amendment-Paternalistic Override Of Waiver Of Right To Conflict- Free Counsel At Expense Of Right To Counsel Of One’s Choice, Wheat v. United States 108 S.Ct. 1692 (1988), 79 J. Crim. L. & Criminology 735 (1988); Vanessa Caston-Porter, Comment, The Wheat Decision: Patently Incorrect, 19 S.U. L. Rev. 491 (1992); Michael E. Lubowitz, Note, The Right To Counsel Of Choice After Wheat v. United States: Whose Choice Is It?, 39 Am. U. L. Rev. 437 (1990); Margaret J. Ryan, Casenote, The Sixth Amendment Right To Counsel: A Criminal Defendant’s Right To Counsel Of Choice v. The Courts’ Interest In Conflict-Free Representation: Wheat v. United States, 486 U.S. 153 (1988), 14 S. Ill. U. L.J. 657 (1990).
262 See generally Green, Through the Glass Darkly, supra note 260; Klein, supra note 261; Ryan, supra note 261.
263 However, it does appear that following Wheat, many prosecutors stepped up their efforts to disqualify defense counsel on grounds of potential conflicts of interest. See Stephen Gillers, Regulation of Lawyers 243 (1999); Richard A. Zitrin & Carol M. Langford, Legal Ethics in the Practice of Law 140 (1995). The post-Wheat trend toward increased efforts to disqualify defense attorneys has been the subject of critical commentary. See, e.g., Bennett L. Gershman, Symposium: The New Prosecutors, 53 U. Pitt. L. Rev. 393, 402 & n.61 (1991); Matthew D. Forsgren, Note, The Outer Edge of the Envelope: Disqualification of White Collar Criminal Defense Attorneys Under the Joint Defense Doctrine, 78 Minn. L. Rev. 1219 (1994).
264 See 486 U.S. at 154.
265 See id. at 155.
266 See id.
267 See id.
268 See id. at 155–56.
269 See Wheat, 486 U.S. at 156.
270 See id.
271 See id. at 157.
272 See id.
273 See id. at 157–58 & nn.1–2.
274 See Wheat, 486 U.S. at 163.
275 See id. at 151–52.
276 See id. at 163.
277 See id. at 165. Justice Stevens wrote a separate dissent on behalf of himself and Justice Blackmun. Id. at 172.
278 See id. at 165.
279 See Wheat, 486 U.S. at 169.
280 See id. at 169–70.
281 See id. at 170.
282 See id. at n.3.
283 See supra note 262.
284 See Wheat, 486 U.S. at 157.
285 In his article Her Brother’s Keeper?: The Prosecutor’s Responsibility When Defense Counsel Has a Conflict of Interest, 16 Am. J. Crim. L. 323 (1989) [hereinafter Green, Her Brother’s Keeper], Bruce Green argues that the prosecutor’s first steps upon becoming aware of a conflict of interest on the part of defense counsel should be to inform defense counsel of the conflict, and then the court if defense counsel fails to take adequate steps to address the conflict. See id. at 364. Only if the court is unwilling to consider defense counsel’s potential conflict should the prosecutor file a motion to disqualify defense counsel. See id. And then, if the defendant is willing to waive the right to conflict-free representation, the prosecutor should withdraw the disqualification motion except in rare and extraordinary circumstances. See id. Such circumstances might exist, for example, if the defense attorney were going to be required to be a material witness at trial. See id. at 358. For other examples of extraordinary situations that Green contends would justify prosecutors in pressing for disqualification despite the defendant’s waiver, see id. at 353–62.
286 See Wheat, 486 U.S. at 170 n.3.
287 A relevant step in this direction might be accomplished by adopting Bruce Green’s suggestion that prosecutors’ offices establish written guidelines governing the decision whether to file a disqualification motion. See Green, Her Brother’s Keeper, supra note 285, at 353.
288 See Miller, Government Lawyers, supra note 5, at 1293.
289 See id.
290 See id.
291 See id.
292 See id. at 1298.
293 See Miller, Government Lawyers, supra note 5, at 1294–95.
294 See id. at 1295.
295 See id.
296 See Simon, The Practice, supra note 169, at 18; Simon, Ethical Discretion, supra note 169, at 1119.
297 See supra notes 175–194 and accompanying text.
298 See Miller, Government Lawyers, supra note 5, at 1293.
299 See supra notes 184–186 and accompanying text.
300 See Miller, Government Lawyers, supra note 5, at 1295.
301 See id.
302 See id. at 1297.
303 See Model Rules of Professional Conduct Rule 3.1 (1983).
304 See Miller, Government Lawyers, supra note 5, at 1297.
305 See id.
306 See id. at 1293.
307 See id.
308 See generally Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney, 18 Me. L. Rev. 155 (1966) [hereinafter Weinstein, Political Problems].
309 See id. at 169.
310 See, e.g., U.S. Const. amend. V (“[N]or shall private property be taken for public use without just compensation”) (emphasis added).
311 See Weinstein, supra note 308, at 169.
312 See id.
313 See id.
314 See id.
315 See, e.g., Model Rules of Professional Conduct Rule 1.7 cmt. (1983).
316 See, e.g., id. Rule 1.6.
317 See supra notes 154–157 and accompanying text.
318 See Model Rule of Professional Conduct Rule 1.7(a) (1983).
319 This is similar to the distinction between Zacharias’ “assure adequate adversarial process” model, see Zacharias, supra note 4, at 60, and Green’s “do justice” model, see Green, Seek Justice, supra note 16, at 634.