Can a lawyer serve as a contract prosecutor for a municipality whose policy forbids any dismissals or plea negotiations, eliminating prosecutorial discretion?

Plain-English summary

A lawyer wished to serve as a contract prosecutor for a municipality with a policy of no dismissals and no negotiations: the case must go to trial as charged unless the arresting officer or his supervisor reduces the charge. The policy prevents the lawyer from exercising prosecutorial discretion over which charges to try, which to reduce or resolve by plea, and which to dismiss. The inquiry asked whether the lawyer can ethically discharge his duties as a prosecutor under such a policy.

The committee concluded no, because the policy is inconsistent with the lawyer's obligation under Rule 3.8(a). The rules recognize that a prosecutor's role creates special responsibilities (Rule 3.8). Rule 3.8(a) requires the prosecutor to refrain from prosecuting a charge the prosecutor knows is not supported by probable cause. Comment 1 explains that a prosecutor has the responsibility of a minister of justice, not simply an advocate, with specific obligations to see that the defendant is accorded procedural justice and that guilt is decided on sufficient evidence, and notes that a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. The committee found that Rule 3.8(a), amplified by comment 1, makes prosecutorial discretion an ethical requirement, not merely a good idea; because the municipality's policy seeks to eliminate that discretion, it would be improper for the lawyer to serve subject to the policy.

In practice

The opinion holds that, under South Carolina Rule 3.8(a), a lawyer may not serve as a contract prosecutor under a municipal policy that eliminates prosecutorial discretion through a blanket no-dismissal, no-negotiation rule. The opinion treats prosecutorial discretion as an ethical requirement flowing from the prosecutor's role as a minister of justice (comment 1), required so the prosecutor can refrain from prosecuting charges not supported by probable cause; it notes that systematic abuse of discretion could violate Rule 8.4. The opinion concludes it would be improper for the lawyer to serve under the policy.

Common questions

Q: Can a prosecutor work under a policy of no dismissals and no plea negotiations?

A: No. The committee said such a policy is inconsistent with Rule 3.8(a), which requires the prosecutor to refrain from prosecuting charges not supported by probable cause, and that prosecutorial discretion is an ethical requirement.

Q: Why is prosecutorial discretion an ethical requirement and not just a practice?

A: Because of the prosecutor's role. The committee cited comment 1's description of the prosecutor as a minister of justice responsible for procedural justice and for guilt being decided on sufficient evidence.

Q: What rule could a systematic no-discretion approach violate beyond Rule 3.8?

A: Rule 8.4. The committee noted comment 1's statement that a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

Background and rules framework

The opinion interprets South Carolina Rule 3.8(a) (special responsibilities of a prosecutor; not prosecuting charges lacking probable cause), with comment 1 and a reference to Rule 8.4, corresponding to the like-numbered Model Rules. The analysis turns on prosecutorial discretion being a required component of the prosecutor's duty to refrain from prosecuting unsupported charges.

Citations and references

Rules of Professional Conduct:

• MR 3.8 / SC Rule 3.8(a) and Comment 1 (special responsibilities of a prosecutor; probable cause; minister of justice)
• MR 8.4 / SC Rule 8.4 (systematic abuse of prosecutorial discretion)

See also

• SC Bar Ethics Op. 11-02: Part-Time County Attorney Conflicts
• SC Bar Ethics Op. 03-11: Prosecutor's Disclosure Duty

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-14-02/
• Original PDF: https://www.scbar.org/media/ploo0tcl/14-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 14-02

SC Rules of Professional Conduct: 3.8(a) and Comment 1

Facts:

Lawyer desires to serve as a contract prosecutor for a municipality. The municipality has a policy of no dismissals and no negotiations – the case must go to trial as charged unless the arresting officer or his supervisor reduces the charge. The municipality's policy prevents the lawyer from exercising prosecutorial discretion as to which charges should be tried, which charges should be subject to a plea agreement or reduced, and which charges should be dismissed.

Question Presented:

Can the lawyer ethically discharge his duties as a prosecutor in light of the municipality's policy of no prosecutorial discretion?

Summary:

No, the municipality's policy is inconsistent with the lawyer's obligation under Rule 3.8(a) of the South Carolina Rules of Professional Conduct ("SCRPC").

Opinion:

The SCRPC, as well as the Model Rules of Professional Conduct, recognize that a lawyer's role as a prosecutor in a criminal case creates special responsibilities (Rule 3.8 SCRPC). Specifically, Rule 3.8(a) requires the prosecutor to "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." Comment 1 to Rule 3.8 is particularly instructive on these facts and provides some color to the basic rule established by Rule 3.8(a). That comment reads, in relevant part, as follows:

"A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence."

The Comment ends by noting that "a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4."

The mandate of Rule 3.8(a), amplified by the explanation provided in Comment 1, makes it clear that prosecutorial discretion is not just a good idea, but rather is an ethical requirement. Given that the municipality's policy seeks to eliminate the very prosecutorial discretion that is required by Rule 3.8(a), the Committee concludes that it would be improper for the lawyer to serve subject to that policy.