This question comes to mind due to the current political situation, but I am looking for GQ answers that are generally applicable, and not political commentary appropriate for other forums.
While investigations and prosecutions are ongoing, prosecutors (and their staffs) are usually pretty tight-lipped about the evidence they are developing and where the proceedings are going, but will sometimes publicly release information or evidence.
Prosecutors – including the head of the prosecution agency – sometimes leave their agencies, whether because they resign, are not re-elected, or are dismissed.
Once a prosecutor leaves his or her agency, are there any laws or ethical requirements that prevent him or her from voluntarily disclosing information relating to investigations or prosecutions he or she was involved with. (Obviously, if the investigation involves classified information, the prosecutor could not disclose that, but I’m asking about information that is not otherwise protected.)
Even if the prosecutor does not have documents or other evidence, could he or she voluntarily publicly discuss what she was investigating or the evidence uncovered? What about being compelled to testify before a legislature?
Or, more pointedly (and remember we’re in GQ, so I’m looking for a factual answer, not the political implications), if a President dismisses (or has the acting Attorney General) dismiss a Special Counsel, is the Special Counsel free to discuss whatever the investigation had uncovered and/or what the investigation was going after at the time of dismissal.
IANAL … but in the general case, no, the collected information cannot be released to the public EXCEPT that information that is to be used as evidence against someone in a court of law … and then only the court of law can approve the information’s release to the public (by way of allowing the evidence to be use in that court) … and this prohibition remains in effect forever, whether the government employee still works of the government or not …
How this works in front of a legislature depends on the rules of that legislature … courts tend to loath telling legislatures what to do or not do …
For example, a forensic accountant will find the suspect regularly travels to Nevada to engage in activities that are lawful in Nevada, but would be horrifically embarrassing if made public … We the People need this accountant to see all the information, but only the information that is evidence of a crime can be released to the public … any other information must remain completely private …
Billdo, wouldn’t the ordinary rules of attorney-client privilege and duty of confidentiality apply to a former prosecutor? As well, wouldn’t there be a legal public servant duty of confidentiality, in addition to the professional duties ?
That would be the case here in Canada. Don’t you have similar rules ?
Do the rules of attorney-client privilege apply to what your private investigator told you about a case? Or what hostile witnesses in a deposition told you? Or what you are obliged to disclose to the other side? Or only to the conversations between client and attorney?
I would assume an ex-prosecutor has an obligation not to disclose anything that would hinder an on-going case, as that would be obstruction…
I would assume that this would be governed by Rules 1.6 and 1.9.
1.6: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” and “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
1.9: “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter . . . reveal information relating to the representation except as these Rules would permit or require with respect to a client.”
I don’t think the duty of confidentiality, under these rules, is limited to information that would be harmful to the former client. I think that revealing any information relating to the investigation (without the former client’s, i.e., the government’s) consent would be an ethical violation.
I suppose there’s a difference between what a former prosecutor can reveal on his own (tell all book) versus what they can reveal when questioned under oath in a valid case - since technically, almost anything the prosecutor learned about a case he would have been obliged to reveal to the defense counsel, so it can’t be considered too privileged… Versus say, strategy deliberations inside the office, which I assume would be fully confidential and privileged.