Below is the text of the letter -- discussed in today's New York Times -- that I wrote to the ABA President about state attorneys general and other prosecutors who discuss pending matters at political fundraisers. I suggest an amendment to the Model Rules to prohibit the practice.
William C. Hubbard
President, American Bar Association
December 20, 2014
Dear Mr. Hubbard:
I read with dismay, two articles in the New York Times, both reporting in detail about state attorneys general who allow political considerations, and campaign contributions, to influence prosecutorial decisions:
Eric Lipton, Lawyers Create Big Paydays by Coaxing Attorneys General to Sue, New York Times, December 18, 2014
Eric Lipton, Lobbyists, Bearing Gifts, Pursue Attorneys General, New York Times, October 28, 2014
Needless to say, the notion of political considerations, particularly campaign contributions, influencing prosecutorial decision making, it antithetical to justice. The American Bar Association has specifically weighed in on this issue, saying in its Criminal Justice Section Standards for Prosecutors:
(f) A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.
Unfortunately this standard is not enough to curtail the types of politicized prosecution decisions described in the New York Times articles. The ABA needs to set forth in its Model Rules of Professional Conduct clear rules prohibiting prosecutors from co-mingling political functions, particularly fundraisers, with conversations about official matters.
I ask that you urge the ABA to amend Rule 3.8 of the Model Rules of Professional Conduct (Special Responsibilities of Prosecutors) to contain a new provision stating:
“A prosecutor shall not while attending a partisan political event, whether a fundraiser for candidates for public office or any other event, discuss pending cases or investigations in which the prosecutor is participating in or is likely to participate in his official capacity. This prohibition extends to conversations between the prosecutor and persons the prosecutor meets at a political event for a period of at least seven days after the event, or one year after the event if the other person mentions the political event in the course of his or her post-event conversations with the prosecutor. This prohibition also extends to conversations between prosecutors and any person who has within the past year discussed with the prosecutor his or her campaign contributions that could directly or indirectly affect the prosecutor’s chances for election or reelection to public office. Prosecutors are responsible for arranging for other lawyers in their offices to communicate with persons whom they cannot communicate with under this rule if communications with such persons are necessary to carry out the work of their office.”
Given the gravity of the issues raised by the New York Times stories, and the importance of these issues to the integrity of the legal profession, I hope you will give this suggestion serious consideration and forward it to persons within the ABA who can implement the suggested change to the Model Rules.
I would be happy to discuss this issue with you further at your convenience.
Richard W. Painter
S. Walter Richey Professor of Corporate Law, University of Minnesota
Fellow, Harvard University, Safra Center for Ethics (2014-15)