Proactive Regulation of Prosecutors’ Offices: Strengthening Disciplinary Committees’ Oversight of Prosecutors’ Offices Across the United States with ABA Model Rule 5.1
By Caitlyn B. Holuta
In the United States, there are currently several mechanisms to deter prosecutorial misconduct, including judicial orders, civil litigation by defendants, enforcement actions by disciplinary authorities, and internal discipline within a prosecutor’s office. Despite these many avenues of oversight, none have successfully prevented misconduct to the degree society demands. Several international legal systems have adopted regulatory frameworks based on the theory of proactive management-based regulation, which mitigates against unethical conduct by requiring attorneys to self- assess their internal ethics policies against a rubric of ethics goals set by ethics and disciplinary authorities. While most U.S. jurisdictions have not adopted proactive management-based regulations, attorneys are required by state-enacted versions of American Bar Association (ABA) Model Rule of Professional Conduct 5.1 to maintain internal policies that guarantee ethical practices in their offices. This Note argues that disciplinary committees should meaningfully enforce ABA Model Rule 5.1 by utilizing a proactive regulatory approach. By requiring prosecutors to self-assess and report whether their office policies guarantee ethical prosecutions and prevent misconduct, disciplinary committees can safeguard against prosecutorial misconduct more than current efforts. Proactive enforcement of Model Rule 5.1 allows disciplinary committees to move beyond a defensive, ex post approach to misconduct and, instead, utilize preventative measures that would demand accountability from historically opaque prosecutors’ offices.