Executive Branch Regulation of Defense Counsel and the Private Contract Limit on Prosecutor Bargaining

Criminal defendants’ right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors’ power to veto defendants’ choices to share attorneys with other suspects. The organizing concern for regulation of counsel is not simply fairness, but also accuracy and a less noted goal—effectiveness of criminal law enforcement. Defense counsel is best understood not solely in light of defendant’s interests but also of systemic ones. That gives the executive branch has a stronger claim to competence in regulating counsel. But regulation works best when the regulator is institutionally well suited to the task, and one feature that makes an actor well suited is supervision or some other check by another actor. By those criteria, much executive-branch regulation of defense counsel is acceptable, because prosecutors either need the consent of Congress or the judiciary, or—in the case of privilege waivers—must face well-funded counsel in negotiation. But bargaining to end attorneys’ fee payments to some defendants is different. That policy gives prosecutors power unchecked by legislatures and courts or even the capable opposition of a well-funded opponent. The Supreme Court has left little doctrinal basis for restricting prosecutors’ bargaining incentives for defendant cooperation. Yet this essay explains how firms themselves, through private contract, can take much of the sting out of prosecutors’ abilities to demand nonpayment of attorneys’ fees. Further, as they do so, courts are likely to be receptive to a narrow constitutional doctrine that leaves current plea bargaining law in place but still bars prosecutorial incentives for firms to breach duties to pay fees. Courts and defendants can work within Supreme Court doctrine to limit prosecutors by grounding those limits in the protection of contract obligations as much as the right to counsel