Ethics Corner
Is it ever OK for a prosecutor to be given a bonus for a conviction or plea deal?
This isn’t a hypothetical question. A district attorney in Colorado came under fire for offering such conviction bonuses to the prosecutors in her office. The prosecutors needed to actually obtain a conviction, as opposed to a settlement or a plea bargain, for a felony. The bonuses averaged around $1,100 per conviction. The district attorney claimed that she was merely trying to bring the salaries of prosecutors in her office in line with other counties in Colorado, but the resulting outcry by legal ethicists around the country might cause us to reconsider the wording of Model Rule 1.5 and continue the framework of how we view our ethical rules, as prescriptive or instructive. My problems with conviction bonuses are threefold. First, it presents a conflict of interest for a prosecutor who would be faced with a financial incentive for rejecting all overtures by a defense attorney. That also would hamper the judicial system. Second, it might encourage prosecutors to persuade defendants to not plead guilty to a felony, hoping to take it to trial. Third, this provides little incentive anyway — every licensed lawyer ought to act with “reasonable diligence” to represent his or her client, period. As Justice Sutherland said in Berger v. United States, 295 US 77, 88 (1935), a prosecutor “may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” — Judy Parker JD’06 represents licensed professionals such as lawyers, doctors and architects in professional malpractice suits and before agencies for discipline or admissions issues.
14 | Willamette Lawyer