Kara S. Donahue


Model Rules of Professional Conduct, ABA, professional standards, prosecutorial misconduct, prosecutor, "per se" rule, conflict of interest


“The integrity of the legal system is essential to public confidence in government. Without public confidence, the rule of law loses its meaning. The prosecutor is often the most visible participant in the criminal justice system, and thus, even the appearance of impropriety in the prosecutor's behavior erodes the public trust. He has a duty to seek justice and truth, not only to convict. This duty creates a dual role for the prosecutor: he is both an advocate seeking to obtain convictions and a minister of justice attempting to discover the truth. The public expects him to fulfill these functions to the best of his ability and to act fairly in executing all of his responsibilities. There are, however, instances where the prosecutor's conduct prevents a fair trial. This Note will discuss the ethical problems faced by the prosecutor who litigates both civil and criminal cases arising out of the same dispute or set of facts. These ethical issues arise in two situations: where the prosecutor's prior private practice conflicts with his current position or where the prosecutor simultaneously maintains a private practice that conflicts with his position as prosecutor. In either situation, the prosecutor confronts ethical considerations bearing directly on his impartial role as minister of justice. Part II of this Note discusses the obligations of the prosecutor and the professional standards that govern his conduct. Part III examines some of the factors that can generate prosecutorial misconduct, and Part IV presents the case law governing such ethical dilemmas. Part V considers the shortcomings in the present case law and argues that the existing law inadequately deters unethical behavior. In order to deter unethical behavior, Part VI recommends the adoption of a "per se" rule, which would prohibit a prosecutor's involvement in criminal cases that overlap with cases from their private practices.”



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