THE PROSECUTION BAR.

• Author: Ortman, William

ABSTRACT

The American legal profession needs a prosecution bar. Before lawyers are permitted to appear for the government in a criminal case, they should be licensed not just to practice law, but to practice prosecution. The two are not the same. Regulating them as if they were fosters injustice and fortifies the carceral state.

"Doing justice" is the orienting creed of prosecutorial ethics, in theory, while on the ground, American prosecutors routinely indulge in unjust practices. This Article argues that prosecutors' membership in an undifferentiated legal profession is the key to understanding the contradiction. Lawyers' training, socialization, and professional regulation fixate on "client control"--i.e., the principle that clients, not lawyers, make the most important normative decisions that arise in legal matters. This professional ethic may or may not be justified for lawyers generally, but it is insidious for prosecutors. That is because it gives prosecutors permission to bypass fundamental questions about whether a conviction or a tactic used to secure one is just. To do justice, prosecutors--individually and collectively--must unlearn the ethic of client control. That, this Article contends, is a mission for a prosecution bar vested with the power to license, regulate, and discipline prosecutors. By developing ethical rules and professional norms calibrated for prosecutors, not lawyers in general, a prosecution bar could make "seeking justice" a genuine limitation on prosecutorial practices.

1. PROSECUTORS, LAWYERS, AND JUSTICE A. Prosecutors and the Moribund Duty to Do Justice B. Why Being Lawyers Makes It Harder for Prosecutors to Do Justice 1. Lawyers and Their Clients, Prosecutors and Their Sovereigns 2. Doing Justice in the Undifferentiated Legal Profession II. THE PROSECUTION BAR A. The Proposal 1. Joining the Prosecution Bar 2. Regulating Justice 3. Disciplining Prosecutors B. Benefits C. Analogues Foreign and Domestic III. OBJECTIONS AND ALTERNATIVE MODELS A. Potential Objections 1. Limiting the Supply of Prosecutors 2. Is the Legal Profession to Blame? 3. Other Specialized Bars B. Alternatives 1. A National Prosecution Bar 2. A Fully Independent Prosecution Bar CONCLUSION INTRODUCTION

   A criminal prosecutor's responsibility, the Supreme Court tells us, is not to "win a case," but to see "that justice shall be done." (1) Scholars and the organized bar agree: "Seeking justice" is the polestar of prosecution. (2) Yet prosecutors routinely engage in practices that appear to privilege their own interests--especially in low-cost, low-risk convictions--over justice. Consider, for instance, prosecutors manipulating pretrial incarceration so that defendants will accept "time served" plea offers, (3) or prosecutors threatening to file disproportionately severe charges to intimidate defendants into pleading guilty. (4) These maneuvers, and many like them, are mainstream prosecutorial practices, but no plausible account of justice countenances them. (5) The reality of prosecutorial justice-doing is unglued from the rhetoric.

   Perhaps unsurprisingly, then, the last several years have seen a surge of critical scholarship on prosecution and prosecutors. (6) This literature holds important insights, but it overlooks something fundamental. Before American prosecutors are prosecutors, they are lawyers--educated, socialized, and regulated as part of a legal profession they share with criminal defense lawyers, ERISA specialists, tax litigators, maritime attorneys, and many others. Prosecutors' membership in an undifferentiated legal profession may seem natural. It is actually an institutional design choice that undermines the prosecutorial duty to seek justice. That is because the profession's norms and ethical rules allow and even encourage prosecutors to prioritize questions of tactics over questions of justice.

   This Article identifies the unitary structure of the legal profession as a unique source of dysfunction in the criminal legal system. It also offers a novel solution. Before lawyers prosecute criminal cases, they should become licensed members of a "prosecution bar" imbued with norms and rules that center the duty to do justice. The proposal seeks to harness the power of professional culture and regulation to remedy routine injustice in the criminal legal system.

   The case for a prosecution bar starts by recognizing an essential difference between prosecutors and other kinds of lawyers. The legal profession is understandably preoccupied with the principal-agent problem of clients (principals) and lawyers (agents). The profession's prime directive, its answer to that problem, is the rule of "client control," which provides that clients, not lawyers, make the most important normative choices for lawyers' work on their behalf. (7)

   Client control is controversial as applied to ordinary lawyers. (8) For prosecutors, it is a non sequitur, because prosecutors have no "clients" in the relevant sense. To be sure, prosecutors are agents and they do represent a principal. Their principal is the "sovereign," a political construct that we understand to have an interest in "justice." (9) Like all agents, prosecutors have interests that imperfectly align with those of their principals. But unlike a lawyer's client, a sovereign is an abstraction that cannot direct the normative (or any other) dimensions of its agent's work. (10)

   Both ordinary lawyers and prosecutors thus confront principal-agent problems, but they're different problems. The legal profession's solution to the lawyer's problem, the ethic of client control, does not address the prosecutor's problem. Worse, it undermines the prosecutorial duty to do justice for two reasons, one close to the surface and one deeper.

   The surface problem is that the legal profession's formal ethical rules are not calibrated for lawyers "doing justice" independently. (11) They are instead engineered to ensure that lawyers act in their clients' interests. Accordingly, they offer almost no guidance to prosecutors. Only one provision of the Model Rules of Professional Conduct speaks to the "special responsibilities" of prosecutors, and it covers only a few scattered points. (12) More tellingly, the legal profession's regulators almost never sanction prosecutors. (13) That is problematic but not surprising. Lawyer discipline is mostly about protecting clients, not policing lawyers' conduct with respect to third parties. It is a disciplinary focus that makes prosecutors all but invisible to regulators.

   The deeper problem is cultural. Deferring to another person's normative judgments--as the principle of client control demands--is no simple task. To facilitate it, lawyers are socialized to curb their personal moral judgments when evaluating legal decisions in a professional context. (14) This norm of moral "neutrality" enables lawyers to appraise legal matters by their tactical rather than their normative merits. It allows lawyers to grade questions of what will succeed in court or at the bargaining table higher than questions of justice.

   It is possible that neutrality can be justified for lawyers representing clients, though there are compelling arguments against it. (15) But "doing justice" inevitably entails normative judgment, so it is unsuitable for prosecutors. Professional norms, however, don't come with on-off switches. It is unrealistic to expect well-socialized lawyers to dispense with neutrality just because they've entered an appearance for the government in a criminal case. (16)

   The predictable but calamitous consequence of normatively neutral prosecutors is precisely what we see in the routine operation of American criminal courts: prosecutorial decisionmaking guided by tactics and positive law but not justice--and especially not procedural justice. Unjust but lawful tactics, moreover, drive coercive plea bargaining. (17) They thereby fuel the carceral state, the harms of which are borne disproportionately by Black and Brown people. (18)

   A prosecution bar could begin to fill the gap. This Article proposes that before a lawyer prosecutes a criminal case, she should first obtain a prosecutorial "endorsement" to her law license. (19) Admission to the prosecution bar should be regulated not by the general bar, but by new state boards that would also superintend prosecutorial ethical rules and discipline. (20) If carefully designed, staffed with members representing a broad array of stakeholders in the criminal legal system, and empowered to promulgate rules delineating the meaning of justice in prosecution and enforce them, prosecution boards could foster a prosecutorial subprofession that inhibits prosecutors from privileging their private interests over justice. (21)

   This Article develops the case for a prosecution bar in three parts. It begins in Part I.A with the puzzle of prosecutorial justice-doing. Prosecutors' private interests are powerful forces. But professional rules and norms can be powerful forces too. Why don't the legal profession's rules and norms place off-limits prosecutorial practices that are unjust on any reasonable theory of justice, no matter their tactical efficacy? Part I.B offers an explanation: that prosecutors' membership in the undifferentiated legal profession undercuts the duty to do justice. Part I.B.1 explores the differences between the principal-agent problems that confront prosecutors and ordinary lawyers. Part I.B.2 then examines the surface and deep pathologies of embedding prosecutors in an ethic of client control.

   Part II proposes a solution. Part II.A introduces the prosecution bar and its principal institutional apparatus, the state prosecution board. After explaining how prosecution boards could be staffed by diverse criminal justice stakeholders, it considers their three core functions--licensing, ethics rulemaking, and discipline--in detail, especially licensing. Boards would have a variety of licensing...