Prosecutors\u27 Ethical Duty of Disclosure In Memory of Fred Zacharias

This Article might lead one to ask which body better apprehended the nature of the prosecutorial disclosure rule. Two parts of this Article will explore that question and reach an unexpected conclusion: although the ABA ethics committee and the Ohio Supreme Court had opposite visions of equivalent rules, they may both be right. Even so, there is something obviously jarring about the divide, which reveals deficiencies in the rule adoption process. The ABA has an interest in persuading courts to adopt not only its Model Rules but also its interpretations of those rules, so the result seems to reflect a failure on its part. The state court has an interest in having ethics rules say what they mean so that lawyers in the state do not have to worry whether the court ascribes meanings to ethics rules that contradict the rules’ wording. Moreover, it is confusing for lawyers when ethics opinions say one thing and court opinions say another. The last part of this Article identifies some of the implications of this situation for rulemakers and courts in drafting and adopting professional conduct rules