government lawyers; ethics; professional responsibility; prosecutorial discretion


This Essay is about the role of unwritten norms in the ethical decisionmaking of government lawyers. Because the ethical obligations of lawyers, including government lawyers, are closely tied to the legal rights and obligations of clients, this analysis necessarily depends on understanding the relationship between written law and unwritten norms. As we all know, however, written law leaves gaps, ambiguities, and zones of unregulated discretion. Prosecutors in the United States, for example, have virtually unreviewable discretion to decide who to investigate and charge, what charges to bring, and whether to offer immunity in exchange for cooperation. No one has a legal entitlement not to be prosecuted, nor does anyone else—official or private citizen—have the power to compel a prosecutor to bring charges. The president possesses nearly unconstrained discretion to grant clemency to people convicted of criminal offenses. The impeachment power of Congress is constrained only by the Constitution’s requirement that the president be charged with certain enumerated offenses, including the open-ended phrase “high Crimes and Misdemeanors.” In other areas, a government official may possess the legal authority to do something but may nevertheless be criticized for exercising that authority contrary to standards that are not reducible to positive law. The question is, what standards, norms, or ethical values, if any, constrain the actions of lawyers advising government officials who exercise their power within discretionary unwritten areas of the law? In other words, is there a type of official discretion that is distinguishable from the exercise of raw power or whimsical decision-making, despite being unconstrained by positive law? If so, what is its relationship to positive law and its claim to legitimate authority?