Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory

Abstract

This article considers the extent to which federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors. Lower federal courts have long exercised power to sanction professional misconduct, but the Supreme Court has never made the source of this authority clear. Most federal districts have adopted local professional rules. Unless these standards can be justified as exercises of procedural or evidentiary rulemaking power delegated by Congress, their validity depends on the existence of independent federal court authority. Moreover, federal courts have imposed professional obligations on lawyers through judicial opinions. The resulting standards again can be justified, if at all, only by reference to independent judicial authority to regulate lawyers. The issues are especially significant with respect to regulation of federal prosecutors. Arguably, the standards of conduct for federal prosecutors should differ from standards governing private attorneys and state prosecutors. Who should impose those standards also is a complex issue. Federal courts prefer to consider these questions in evaluating specific allegations of prosecutorial misconduct in litigation, which leads to their setting standards in judicial opinions rather than rules. Whether they may follow this approach depends on the nature of their independent authority over lawyer regulation. The Article illustrates the potential sources of federal court authority, their uncertain reach, and questions that remain to be resolved for judicial regulation of federal lawyers. The analysis calls into question a host of recent judicial and academic assumptions about federal judicial regulatory power.