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To what extent should federal prosecutors be regulated by states, by federal courts, or by the U.S. Department of Justice ("DOJ") as a matter of self-regulation? This Article concludes that, subject to congressional oversight, federal courts should have the ultimate authority to regulate federal prosecutors. However, it also acknowledges the legitimacy of competing claims by the states and DOJ. Sometimes, federal courts should defer to state court regulation, given traditional state regulation of the practice of law and a host of practical considerations. At other times, federal prosecutors have compelling reasons to seek freedom from both state regulation and regulation by the federal judiciary. The Article proposes that, when adopting rules to regulate federal prosecutors, federal courts should formally elicit and weigh the views of state regulators and the DOJ.
Part I describes the ethics standards that states and federal courts apply to federal prosecutors, identifies the sometimes controversial legal authority that federal courts have invoked, and addresses the legal bases upon which the DOJ has questioned both state and federal judicial regulation.
The Article then explores the normative questions: When and why should federal courts regulate federal prosecutors? Part II analyzes the justifications for federal versus state regulation. Part III analyzes justifications for allocating exclusive authority to the DOJ to establish standards governing aspects of federal prosecutors' conduct. Part IV considers when and how federal courts should exercise their regulatory authority, identifying different conceptions of prosecutorial conduct that might guide a federal court in deciding whether to defer to state regulation, on one hand, or to prosecutorial self-restraint, on the other.
Finally, Part V considers Congress's role in regulating federal prosecutorial ethics. It concludes that in place of the current McDade Amendment, which leaves the federal courts' authority ambiguous, Congress should adopt legislation that allocates ultimate rulemaking authority to the federal judiciary and establishes a procedure through which interested constituencies can provide input to federal judicial rulemakers.
I. INTRODUCTION
Consider some questions of federal prosecutorial ethics that have been debated, sometimes heatedly, over the past two decades. Can and should the Department of Justice ("DOJ" or "Department") exempt itself from state and federal ethics rules regulating lawyers' communications with represented persons?1 May federal courts order federal prosecutors to disclose exculpatory evidence to the grand...