Standard 3-1.5 Duty to Respond to MisconductFirst, I have to point out what I can only assume is a grammatical error. Let's parse the language in subsection (a).
(a) Where a prosecutor knows that another person associated with the prosecutor's office is engaged in action, intends to act or refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters. If such policies are unavailing or do not exist, the prosecutor should ask the person to reconsider the action or inaction which is at issue if such a request is aptly timed to prevent such misconduct and is otherwise feasible. If such a request for reconsideration is unavailing, inapt or otherwise not feasible or if the seriousness of the matter so requires, the prosecutor should refer the matter to higher authority in the prosecutor's office, including, if warranted by the seriousness of the matter, referral to the chief prosecutor.
(b) If, despite the prosecutor's efforts in accordance with section (a), the chief prosecutor insists upon action, or a refusal to act, that is clearly a violation of law, the prosecutor may take further remedial action, including revealing the information necessary to remedy this violation to other appropriate government officials not in the prosecutor's office.
Where a prosecutor knows that another person associated with the prosecutor's office . . . refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters.Hopefully, the policy for refusing to violate legal obligations will be increased pay and job security.
Okay, all goofing aside, this is the typical refutation of the "just following orders" excuse. These sorts of things usually aren't too prospectively useful. Let's be honest, when is the last time you heard of a junior assistant prosecutor turning in Chief Deputy Prosecutor Smith, prosecuting 23 years and heir apparent to the Big Job, into the Bar? It may happen, but it's not likely.
Still, my sense is that a rule like this should be in place to put people on notice. In some cases it may actually lead to some good, but mostly it's there let everyone know that "following orders" isn't going to be a workable defense. This, of course, is why the ABA's Model Ethics Rules have a generic requirement for everyone:
Rule 5.2 Responsibilities Of A Subordinate LawyerStrangely, Virginia did not adopt this section.
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
RULE 5.2 Responsibilities of a Subordinate LawyerI can understand why Virginia might be a little leery of this rule. The nightmare scenario would be a whole bunch of brand-spanking-new law school grads, full of idealism and lacking perspective, flooding the Bar with imagined or exceedingly minor "violations." Still, it does leave a hole. It leaves the "following orders" argument alive. If the Bar has not chosen to kill the "following orders" argument, what does that mean it expects from its younger members (whether in a prosecutor's office, PD office, or civil firm)?
ABA Model Rule not adopted.
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