Prosecuting Members of Defense Legal Teams and Its Ethical Implications for the Prosecutor: A Proposal for a New Ethical Standard

This Note explores improprieties and conflicts of interest that may arise when a prosecutor’s office investigates and files charges against defense counsel or a member of the defense legal team. Specifically, this Note focuses on such investigations and charges that arise from defense counsel’s representation of a defendant whom the same prosecutor’s office is prosecuting. The intimately adversarial and professional relationships between prosecutors and defense attorneys taint the legitimacy of any charges against defense counsel for alleged misconduct. The ethical standard proposed here suggests a non-waivable conflict of interest. This would assist the prosecutor’s office in avoiding the appearance of impropriety in such a prosecution. It may even legitimize the threat which otherwise may be seen as having an intentional chilling effect on the defendant’s legal representation. This Note’s proposal is two-fold: First, it analyzes a relationship that raises a conflict of interest for prosecutors; and second, it guides prosecutors through the processes necessary for the prosecution of defense counsel for conduct arising from their legal representation of a client, helping them to act in good faith and in the interests of justice