Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.
This issue is important for two reasons. First, most federal districts have adopted local rules of professional conduct, either by incorporating those of the states in which they sit or by promulgating their own. Unless these standards can be justified as exercises of procedural or evidentiary rule-making powers delegated by Congress, their validity depends on the existence of independent federal court authority. Second, and perhaps more importantly, federal courts have often imposed professional obligations on lawyers through judicial opinions. When federal courts eschew the rule-making process, their standards of conduct again can be justified, if at all, only by reference to some independent judicial authority to regulate lawyers.
The issues are especially significant in the context of the regulation of federal prosecutors, which has been among the most hotly debated areas of legal ethics over the past decade. There is a good argument that the standards of conduct for federal prosecutors should be different-sometimes more restrictive, sometimes less so- than standards of conduct governing private attorneys and state prosecutors. Who should impose the standards also is a complex issue. Federal courts might prefer to consider these questions in the context of evaluating specific allegations of prosecutorial misconduct in litigation, which would lead to setting standards in judicial opinions rather than rules. Whether the courts may follow this approach, however, depends on the nature and extent of their independent regulatory authority over lawyers.
To illustrate the significance and uncertainty of the issues, and to explore various ways in which they might be resolved, this Article takes as its point of departure the most significant recent case addressing the question of independent regulatory authority over lawyers, United States v. Williams. Some observers believe that Williams has defined the nature and scope of federal judicial regulatory authority. Two federal courts of appeals have recently read Williams as foreclosing federal courts from using any authority, including rule-making and independent regulatory authority over lawyers, to adopt a rule of prosecutorial conduct that impinges upon core attributes of the grand jury. A former Department of Justice official has characterized Williams more broadly as foreclosing federal district courts from imposing ethics standards governing any prosecutorial behavior occurring out-of-court. A careful reading of the decision, however, suggests that Williams in fact resolved little, if anything, about federal courts' regulatory power.
This Article demonstrates that the outcome in Williams could have been reached in more than a dozen different ways. Many of the possible analytic approaches would have resolved important open questions about the scope and nature of judicial authority. Most of these approaches are consistent with the actual language of the Williams decision. Through its analysis of Williams, this Article identifies the different potential sources of regulatory authority, (1989) (arguing that, where disciplinary rules are ambiguous, it is preferable for courts to develop standards in common law fashion than for them to attempt to glean the intent of those who drafted the rules). On the other hand, rules may regulate more effectively by providing clearer notice to prosecutors and the public. See Green & Zacharias, supra note 5, at 472 ('The adoption of explicit general standards of conduct often promotes market regulation.").
Fred C. Zacharias and Bruce A. Green,
Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory of a,
56 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol56/iss5/1