lawyer comparative-law unlicensed-practice
Are prosecutors members of the bar?
<p>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? </p>

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

<p>My references on the subject: </p>

<ul>
<li><a href="https://en.wikipedia.org/wiki/Prosecutor" rel="nofollow noreferrer">Definition of Prosecutor</a></li>
<li><a href="https://en.wikipedia.org/wiki/Bar_association" rel="nofollow noreferrer">Definition of Bar association</a>.</li>
</ul>

<p>In <a href="https://youtu.be/etl2krsERko?t=2m10s" rel="nofollow noreferrer">this scene from <em>The Client</em></a> Susan Sarandon threatens to sue Tommy Lee Jones, who I understand acts as a Prosecutor, in front of the State Bar </p>

<p>Would something like that be possible in common-law jurisdictions?</p>

<p>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. </p>

<p>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.</p>

<blockquote>
  <p>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?</p>
  
  <p>If so, does that mean that they are somehow under the bar's
  disciplinary jurisdiction?</p>
</blockquote>

<p><strong>The Practice of Law is Mostly State Regulated</strong></p>

<p>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.  </p>

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

<p><em>Law Clerks</em></p>

<p>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).</p>

<p><em>Admission On A Case By Case Basis</em></p>

<p>It is also not uncommon for someone admitted to the practice of law in one place to be admitted <em>pro hac vice</em> 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.</p>

<p>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.</p>

<p><em>Integrated v. Non-Integrated Bar Associations</em></p>

<p>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.</p>

<p><em>Multi-Jurisdictional Practice Of Law</em></p>

<p>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.</p>

<p><strong>The Practice of Law in U.S. Federal Courts and Agencies</strong></p>

<p>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.</p>

<p>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. </p>

<p>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.</p>

<p><em>Patent Law and Tax Law</em></p>

<p>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. </p>

<p>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 <em>and to take the USPTO bar exam that patent agents take</em>. 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.</p>

<p>The other path is to become a <a href="https://www.uspto.gov/learning-and-resources/patent-and-trademark-practitioners/finding-patent-practitioner" rel="nofollow noreferrer">registered patent agent</a> 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.</p>

<p>Something similar to a registered patent agent profession exists in tax practice before the IRS. An <a href="https://www.naea.org/educating-america/becoming-enrolled-agent-faqs" rel="nofollow noreferrer">enrolled agent</a> can litigate in IRS administrative proceedings and tax court without actually being admitted to the practice of law.</p>

<p>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.</p>

<p><em>Working As A Federal Government Lawyer Without A State Bar Admission</em></p>

<p>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. </p>

<p>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. </p>

<p>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.</p>

<p>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).</p>

<p><em>Additional Regulation Of Federal Government Lawyers</em></p>

<p>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).</p>

<blockquote>
  <p>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</p>
  
  <p>Would something like that be possible in common-law jurisdictions?</p>
</blockquote>

<p>Basically. </p>

<p><em>The Grievance Process</em></p>

<p>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. </p>

<p>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.</p>

<p>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.</p>

<p><em>Grounds For Grievances Of Prosecutors</em></p>

<p>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).</p>

<p><em>Possible Consequences Of Professional Discipline</em></p>

<p>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. </p>

<p><em>Reciprocal Discipline</em></p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

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

<p>In New Zealand, as provided by the <a href="http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3359962.html" rel="nofollow noreferrer">Criminal Procedure Act 2011</a>, <strong>anyone</strong> can be a prosecutor (subject to limitations when the trial is by jury).</p>

<p><a href="http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3359970.html" rel="nofollow noreferrer">Section 5</a> defines "prosecutor" as "<em>the person who is for the time being conducting the case against the defendant in accordance with <a href="http://www.legislation.govt.nz/act/public/2011/0081/latest/link.aspx?id=DLM3360053#DLM3360053" rel="nofollow noreferrer">section 10</a></em>".</p>

<p><a href="http://www.legislation.govt.nz/act/public/2011/0081/latest/link.aspx?id=DLM3360053#DLM3360053" rel="nofollow noreferrer">Section 10</a> specifies who may conduct proceedings against defendant, the first and foremost being "<em>the person who commenced the proceeding</em>".</p>

<p>And, according to <a href="http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865713.html" rel="nofollow noreferrer">Section 15</a>:</p>

<blockquote>
  <p>Any person may commence a proceeding.</p>
</blockquote>

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

<p>The first is the classic type: a Crown entity (e.g. the police) lays charges, and then someone (typically a <a href="http://crownlaw.govt.nz/" rel="nofollow noreferrer">crown lawyer</a>, 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.</p>

<p>In <a href="http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865715.html" rel="nofollow noreferrer">private prosecutions</a> 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:</p>

<ol>
<li>Accept the document ("file" it), in which case they will also issue summons to the defendant (<a href="http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865716.html" rel="nofollow noreferrer">section 33</a>) and schedule the first hearing date where the defendant will need to appear before a judge to plead either guilty or not; OR</li>
<li>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.</li>
</ol>

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