PART 3: PROSECUTOR’S ROLE IN RESOLVING INVESTIGATION PROBLEMS STANDARD 3.1 PROSECUTOR’S ROLE IN ADDRESSING SUSPECTED LAW ENFORCEMENT MISCONDUCT (a) If the prosecutor has reason to suspect misconduct or unauthorized illegal activity at any level of the prosecutor’s office or in any agency or department engaged in a criminal investigation, the prosecutor should promptly report the suspicion and the reason for it to appropriate supervisory personnel in the prosecutor’s office who have authority to address the problem, or to the appropriate inspector general’s office, or similar agency, if reporting within the prosecutor’s own office is problematic. Reporting may also be required to comply with requirements of the applicable rules of professional conduct, the Model Rules and the law of the jurisdiction. (b) If the prosecutor has reason to believe that a criminal investigation or prosecution is, or is likely to be, adversely affected by incompetence, lack of skilled personnel or inadequate resources in the prosecutor’s office or in any other relevant agency or department, the prosecutor should promptly report that belief and the reason for it to supervisory personnel in the prosecutor’s office. (c) A supervisory prosecutor who receives an allegation of misconduct, unauthorized illegal conduct, or who receives an allegation of incompetence, inadequate resources, or lack of skilled personnel that is, or is likely to, adversely affect a criminal investigation, should undertake a prompt and objective review of the facts and circumstances or refer the matter to an appropriate agency or component responsible for addressing such allegations. When practicable, the line prosecutor making any such allegations should not be involved in subsequent investigation(s) relating to the allegation(s). (d) If the prosecutor’s office concludes that there is a reasonable belief that personnel in any agency or department have engaged in unauthorized illegal conduct, the prosecutor’s office should initiate a criminal investigation into the conduct or seek the initiation of such an investigation by an appropriate outside agency or office. (e) If the prosecutor’s office concludes that there was not unauthorized illegal conduct, but concludes that there was incompetence or non-criminal misconduct, the prosecutor’s office should take appropriate action to notify the relevant agency or department, and if within the prosecutor’s own office, to impose sanctions for the conduct. (f) Decisions on how to respond to allegations of unauthorized illegal conduct, misconduct, or significant incompetence should generally be made without regard to adverse consequences on pending cases or investigations. STANDARD 3.2 PROSECUTOR’S ROLE IN ADDRESSSING SUSPECTED JUDICIAL MISCONDUCT (a) Although judges are not exempt from criminal investigation, the prosecutor’s office should protect against the use of false allegations as a means of harassment or abuse that may impact the independence of the judiciary. (b) If a line prosecutor has reason to believe that there is significant misconduct or illegal activity by a member of the judiciary, the line prosecutor should promptly report that belief and the reasons for it to supervisory personnel in the prosecutor’s office. (c) Upon receiving from a line prosecutor, or from any source, an allegation of significant misconduct or illegal conduct by a member of the judiciary, a supervisory prosecutor should undertake a prompt and objective review of the facts and circumstances. (d) If the prosecutor’s office has a reasonable belief that a member of the judiciary has engaged in criminal conduct, the prosecutor’s office should initiate, or seek the initiation of, a criminal investigation. (e) If the prosecutor’s office concludes that a member of the judiciary has not engaged in illegal conduct, but has engaged in non-criminal misconduct, the prosecutor’s office should take appropriate action to inform the relevant officer of the judicial authorities. Reporting may also be required to comply with requirements of the applicable rules of professional conduct, the Model Rules and the law of the jurisdiction. (f) The prosecutor’s office should take reasonable steps to assure the independence of any investigation of a judge before whom the prosecutor’s office practices. In some instances, this may require the appointment of a “pro tem” or “special” prosecutor or use of a “fire-wall” within the prosecutor’s office. STANDARD 3.3 PROSECUTOR’S ROLE IN ADDRESSING SUSPECTED MISCONDUCT BY DEFENSE COUNSEL (a) Although defense counsel are not exempt from criminal investigation, the prosecutor’s office should protect against the use of false allegations as a means of harassment or abuse that may impact the independence of the defense counsel or the Constitutionally protected right to counsel. (b) If a line prosecutor has reason to believe that defense counsel is engaging in criminal conduct, is violating the duty to protect a client, or is engaging in unethical behavior or misconduct, the prosecutor should promptly report that belief and the reasons for it to supervisory personnel in the prosecutor’s office. (c) Upon receiving from a line prosecutor, or from any source, an allegation of misconduct or illegal conduct by defense counsel, a supervisory prosecutor should undertake a prompt and objective review of the facts and circumstances. (d) If the prosecutor’s office has a reasonable belief that defense counsel has engaged in illegal conduct, the prosecutor’s office should initiate, or seek the initiation of, an investigation into the conduct. (e) If the prosecutor’s office concludes that defense counsel has not engaged in illegal conduct, but has engaged in non-criminal misconduct as defined by the governing ethical code and the rules of the jurisdiction, the prosecutor’s office should take appropriate action to inform the appropriate disciplinary authority. (f) The prosecutor’s office should take reasonable steps to assure the independence of any investigation of a defense counsel including, if appropriate, the appointment of a pro tem or special prosecutor or use of a “fire-wall” within the prosecutor’s office. At a minimum, an investigation of defense counsel’s conduct should be conducted by a prosecutor who has not been involved in the initial matter or in ongoing matters with that defense counsel. (g) The prosecutor investigating defense counsel should consider whether information regarding conduct by defense counsel should be provided to a judicial officer involved in overseeing aspects of the investigation in which the misconduct occurred. (h) The prosecutor investigating defense counsel who is representing a client in a criminal matter under the jurisdiction of the prosecutor’s office ordinarily should notify the attorney and the court in a timely manner about the possibility that potential charges against the attorney may create a conflict of interest.866.400.IIFC