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In the so-called common-law countries (or common law adversarial system, or common law jurisdictions) are prosecutors members of the (state) bar? If so, is that a requirement?

If so, does that mean that they are somehow under the bar's disciplinary jurisdiction?

My references on the subject:

In this scene from The Client Susan Sarandon threatens to sue Tommy Lee Jones, who I understand acts as a Prosecutor, in front of the State Bar

Would something like that be possible in common-law jurisdictions?

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In the so-called common-law countries (or common law adversarial system, or common law jurisdictions) are prosecutors members of the (state) bar? If so, is that a requirement?

If so, does that mean that they are somehow under the bar's disciplinary jurisdiction?

The Practice of Law is Mostly State Regulated

Almost all prosecutors are (and must be) admitted to the practice of law by one or more state courts or the practice of law in D.C.

Prosecutors in state courts must be admitted to the practice of law in the state in which they are employed.

Law Clerks

Sometimes a prosecutor's office or law firm will hire someone who has graduated from law school to be a lawyer and has them start work before they pass the bar exam. But, until they are admitted to practice, they are only allowed to work as "law clerks" (i.e. basically they can do what a paralegal can do).

Admission On A Case By Case Basis

It is also not uncommon for someone admitted to the practice of law in one place to be admitted pro hac vice in a particular court for a particular case where they are not admitted to practice, especially in federal court. But, sometimes this requires sponsorship or affiliation with a lawyer or law firm admitted in that jurisdiction.

I have also encountered one case where I non-lawyer was granted special permission to represent someone in an appellate court proceeding, in which the non-lawyer was the manager of the client, even though this is usually not permitted in appellate courts.

Integrated v. Non-Integrated Bar Associations

In some states there is an independent state bar association and the state supreme court handles admission to the practice of law and discipline for violations of professional ethics and requirements. In other states, there is what is known as an "integrated bar" and this function is handled by the state bar association and the state supreme court merely requires that someone be a state bar association member in good standing to practice law. Functionally, the two are basically indistinguishable from a lawyer or prospective lawyer's perspective.

Multi-Jurisdictional Practice Of Law

There are also fairly elaborate rules governing when someone who is admitted to the practice of law in one state is and is not considered to be practicing law in another state without a license.

The Practice of Law in U.S. Federal Courts and Agencies

Each federal court in the U.S. has its own separate bar, as does the U.S. Patent and Trademark office. But, a membership in the state bar (or the D.C. bar) as the case may be is usually a prerequisite to admission.

A federal court will often also admit to practice before it a federal government employed lawyer who is admitted to practice in a different state than the one where the court is located.

Admission to the bar of a federal court is usually granted as a matter of course to people admitted to the practice of law in the relevant state, and without too much fuss to federal government employees admitted to the practice of law in another state or D.C.

Patent Law and Tax Law

The U.S. Patent and Trademark office has its own bar to which someone practicing before it (which is called prosecuting patents and means obtaining patents for people from the USPTO) must belong. There are two paths involved.

One is to be admitted to the practice of law in some state or D.C., and also requires special science based knowledge and patent law knowledge in addition to general legal knowledge and to take the USPTO bar exam that patent agents take. If one takes this path, one can both help people to obtain patents from USPTO and litigate both patent and non-patent matters in courts where the attorney is admitted to practice and in USPTO proceedings.

The other path is to become a registered patent agent without going to law school or being admitted to the practice of law. This still requires special science based knowledge and patent law knowledge demonstrated by passing the USPTO bar exam. If one takes this path, one can both help people to obtain patents from USPTO, and litigate in USPTO proceedings, but one cannot litigate both patent and non-patent matters in the courts.

Something similar to a registered patent agent profession exists in tax practice before the IRS. An enrolled agent can litigate in IRS administrative proceedings and tax court without actually being admitted to the practice of law.

Thus, the IRS and the U.S. Patent and Trademark Office both allow someone to be admitted solely to practice before those agencies without being lawyers in a state bar as a prerequisite. But, there is no such thing as "national" admission to the practice of law, in general, in the U.S.

Working As A Federal Government Lawyer Without A State Bar Admission

In theory, the United States government can hire and use as a lawyer someone who is not admitted to any state or D.C. bar association, for example, in the Department of Justice, or the White House Office, or the JAG Corps, because the supremacy clause allows someone engaged in an exclusively federal practice for the federal government to be immune from state bar regulation.

This is very rare in practice, but is important when evaluating state bar associations as a way to regulate federal lawyers in a systemic campaign to do so contrary to the wishes of a current Presidential administration.

For example, if a state bar disbarred an attorney working for the federal government, for example, for discriminating against LGBQT people because that is what the administration told the attorney to do, the federal government could continue to use that lawyer even though the lawyer was no longer admitted to practice in any U.S. state or in D.C., and the federal courts would probably not reciprocally disbar the lawyer in the federal courts if a case was made not to do so in that kind of situation. The federal court ultimately get to decide who can practice law before them, but usually defers to the federal governments requests on these matters.

Also, not every legal job in the federal government formally required a license to practice law as part of the job description (most notably, federal judges, certain White House advisers, and also some court-martial officials).

Additional Regulation Of Federal Government Lawyers

Federal government lawyers are also subject to certain kinds of federal government regulation that doesn't apply to other lawyers (e.g. they must defer to the U.S. AG's declarations regarding how the law should be interpreted in the absence of contrary guidance from a court).

In this scene from The Client Susan Sarandon threatens to sue Tommy Lee Jones, who I understand acts as a Prosecutor, in front of the State Bar

Would something like that be possible in common-law jurisdictions?

Basically.

The Grievance Process

Anyone can grieve a lawyer if they have personal knowledge of a violation of professional ethics by that lawyer. It isn't terribly uncommon for an opposing counsel to grieve the other side's lawyer if the opposing counsel appears to violate professional ethics although such grievances receive a higher level of scrutiny and skepticism.

Sue isn't really the right word. Someone files a complaint or grievance with the body that regulates the practice of law in the relevant state, and then public officials (sometimes volunteer lawyers) investigate the case and if necessary go through the quasi-criminal administration law hearings (without a jury in the usual sense although sometimes a committee or panel hears the case) necessary to impose professional discipline on the lawyer.

Often, the state supreme court has ultimately authority to review these decision on an appellate basis. Sometimes attorney discipline cases are in the original jurisdiction of the state supreme court but handled by a magistrate or special master before a final decision by it.

Grounds For Grievances Of Prosecutors

The more common grounds upon which a prosecutor can be grieved include a failure to disclose exculpatory evidence to the defense, serious criminal convictions in private life, and undisclosed conflicts of interest (e.g. having an undisclosed affair with the trial judge before who the prosecutor practices, or with a criminal defense attorney in the same case).

Possible Consequences Of Professional Discipline

Professional discipline can range from a private reprimand or agreement to take continuing education classes or seek substance abuse treatment, to a public reprimand, to suspension from the practice of law for a period of time, to disbarment, depending upon the severity of the offense under the facts and circumstances of the case.

Reciprocal Discipline

Professional discipline must usually be reported to every other jurisdiction to which the lawyer is admitted to practice, and usually, the other jurisdiction will impose "reciprocal discipline" identical to and concurrent with the primary jurisdiction imposing the discipline in the case of a suspension from practice or disbarment.

  • Thanks for your rich answer. About the second part, in a criminal case, I understand that it may happen that a defendant's attorney may file a complaint/grievance against the (state, federal) prosecutor of the case as 'to impose professional discipline' on him as a lawyer? Is it so? (Please, note I am writing from Italy, and try to compare with our system). – mario Apr 11 at 17:13
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    Anyone can grieve a lawyer if they have personal knowledge of a violation of professional ethics by that lawyer. It isn't terribly uncommon for an opposing counsel to grieve the other side's lawyer if the opposing counsel appears to violate professional ethics although such grievances receive a higher level of scrutiny and skepticism. The more common grounds upon which a prosecutor can be grieved include a failure to disclose exculpatory evidence to the defense and undisclosed conflicts of interest (e.g. having an undisclosed affair with the trial judge before who the prosecutor practices). – ohwilleke Apr 11 at 17:14
  • One does NOT need to be an attorney to practice before the patent side of the USPTO. This was true historically and was upheld by the Supreme Court in Sperry v. Florida, 373 U.S. 379 (1963). In one place you say they must be state bar admitted and in another place you say they don't. Please fix your answer. I also do not think a CPA "practicing before the IRS" is practicing law. I'm a registered patent agent who can practice before the USPTO (regarding patents, not trademarks). I do not think there is an equivalent for practicing before the IRS. – George White Apr 11 at 18:04
  • @GeorgeWhite I had intended to state this clearly but will try to do better. A CPA just preparing returns is not practicing law, but a CPA litigating a case in tax court (which a CPA is allowed to do under IRS rules) is. There is an analog to a registered patent agent in IRS practice called an "enrolled agent". naea.org/educating-america/becoming-enrolled-agent-faqs – ohwilleke Apr 11 at 21:50
  • @ohwilleke are you a prosecutor? – Putvi Apr 11 at 21:59
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Yes, in general US prosecutors are licensed attorneys if they're practicing law. You don't necessarily technically need a license if your job is purely administrative, but to appear in court you do. They are subject to professional ethics requirements, and can be disbarred for violating them. There may be a state or two where they aren't licensed, but the common rule is that they are.

  • So, are we saying that, in the US, even the Federal Government, when prosecutes somebody, is asked to be represented by a licensed attorney who is subject to professional ethics requirements such that allegations of ethics misconduct (even when prompted by requests of his 'client'?) would be evaluated by what - i understand - is essentially a private - although law regulated - association (a State bar)? Am i going astray? – mario Jan 8 '16 at 17:51
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    So what happens if a District or State Attorney is elected who is not on the bar? Will the courts refuse to hear them speak for the state? – feetwet Jan 8 '16 at 18:54
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    @feetwet Depending on state, non-lawyers may be not qualified for the office (in which case it's like electing a noncitizen, or electing a three-year-old), or they take office but can only do administrative things (Pennsylvania's attorney general is now in this boat, as her law license has been suspended). I am unaware of any state in which the courts (who handle attorney admission and regulation) must accept an elected DA to argue before them. – cpast Jan 8 '16 at 21:33
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    @mario State law licensing is not really a function of private associations; attorney licensing is a responsibility of the state courts. In states that give bar associations direct control over attorney licensing or discipline, they act as an arm of the state courts when they do that. The federal government isn't inherently subject to state law licensing requirements; however, the executive branch is subject to the rules of the judicial branch about who may appear before them, and the judicial branch has generally decided to require lawyers to be members of the bar of some state. – cpast Jan 8 '16 at 22:03
  • @cpast thanks a lot. By the way, are judges required to be, or to have been, member of a bar too? – mario Jan 9 '16 at 12:23
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In Australia this is not the case. Specifically, "the bar" refers to barristers who act either for the prosecution/plaintiff or the defendant. However, particularly in lower courts, people may be represented by solicitors who are not barristers. In addition, minor crimes are often prosecuted by Police Prosecutors who are serving police officers and may have no legal qualifications at all.

  • So are there no licensing or other qualifications on who may address the court or practice in it? – feetwet Jan 9 '16 at 3:13
  • @feetwet that's not what I said, you have to be a police prosecutor, solicitor or barrister: only barrister's have passed the bar. – Dale M Jan 9 '16 at 6:14
  • @DaleM, you let me understand that even in .au it is the case for major cases, don't you? – mario Jan 9 '16 at 15:45
  • @maro Cases in the Supreme Courts of each state or the High Court would be argued by barristers. District Court matters could go either way and Local Court matters would rarely see a barrister - you don't hire a guy who charges $800/hour to defend your $360 speeding fine. – Dale M Jan 9 '16 at 19:58
  • @DaleM are you from Australia? – Putvi Apr 11 at 16:18
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It depend on whether you are talking about a state supreme court (and the D.C. Court of appeals) have a bar. Being a member of that allows you to appear in the all the courts of the jurisdiction.

Each federal court (supreme court, circuit, and district) has its own bar. The rules vary for admission vary. However, you have a member of a bar of some state.

A Federal Prosecutor could then not be a member of the bar in the state in which he practice. A state Prosecutor would be.

  • just to avoid basic misunderstanding: a bar is just a kind of Registry of licensed attorney maintained by somebody (mostlikely, a court) , or more like an association with some kind of governance (officials, a President, a Board, maybe a general Assembly, by-rules, and so on)? – mario Jan 12 '16 at 16:05
  • I should have clarified that a federal prosecutor may or may not be a member of the state bar. There is a good chance he might not be. DOJ lawyers go all over the country. – user3344003 Jan 13 '16 at 0:06
  • You did not answer to my request about Bars as (kind of) Registry or Association. I understand that there is not a Federal bar, just State bars. DOJ lawyers are members of at least a State bar, aren't they? – mario Jan 13 '16 at 0:11
  • They have to be a member of at least on state bar to get admitted to a federal court. At the federal level, each court admits individually. Usually (but not in all cases-Say "Hi" D.C. District), you only pay a one-time entry fee. You get different privileges too. As a member of the Supreme Court bar you can use the library and sit in the members' section of the gallery (much to the chagrin of the media who things they should get the seats.). Of course, the more courts you're a member of, the more courts that can discipline you. A violation in one bar can be penalized in all. – user3344003 Jan 13 '16 at 0:16
  • Fine, and thanks; still you don't help me to understand the Registry vs. Association question. Is it clear what I am trying to understand? – mario Jan 20 '16 at 12:57
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In New Zealand, as provided by the Criminal Procedure Act 2011, anyone can be a prosecutor (subject to limitations when the trial is by jury).

Section 5 defines "prosecutor" as "the person who is for the time being conducting the case against the defendant in accordance with section 10".

Section 10 specifies who may conduct proceedings against defendant, the first and foremost being "the person who commenced the proceeding".

And, according to Section 15:

Any person may commence a proceeding.

So, how does that work? Prosecutions in New Zealand are either public or private.

The first is the classic type: a Crown entity (e.g. the police) lays charges, and then someone (typically a crown lawyer, but could be just an employee of the Crown entity without a law degree at all) appears in court to present the case against the defendant.

In private prosecutions a layman can download the official charging document form, fill it with details of whom he wants to prosecute and for what, and present it to a court registrar for NZ$30. The court registrar may:

  1. Accept the document ("file" it), in which case they will also issue summons to the defendant (section 33) and schedule the first hearing date where the defendant will need to appear before a judge to plead either guilty or not; OR
  2. Refer the document to a judge who will direct what happens next. Typically the judge will request that the layman provides evidence to support the charges. His/Her Honour will assess if the evidence appears sufficient to prove guilt beyond reasonable doubt should the case go on trial, and if so, go to #1. If the evidence is weak, the charges will not be accepted.

If #1 above happens, the defendant will face the fact that a layman can be a prosecutor in New Zealand.

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