The Role of a Prosecutor: William W. Thompson, Jr. Latah County Prosecuting Attorney
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THE ROLE OF THE
PROSECUTOR AND YOU
(Care, Feeding and Proper Use of
Your Prosecutor)
WILLIAM W. THOMPSON, JR.
LATAH COUNTY PROSECUTING ATTORNEY
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STATUTES
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Presumption: We always act legally and
properly
STATUTES
3
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STATUTES
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3. To give advice to the board of county
commissioners, and other public officers of
his county, when requested in all public
matters arising in the conduct of the public
business entrusted to the care of such
officers.
STATUTES
31-2001. COUNTY OFFICERS ENUMERATED. The
officers of a county are:
1
.
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4. A prosecuting attorney.
5
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.
STATUTES
31-2227. ENFORCEMENT OF PENAL LAWS –
PRIMARY RESPONSIBLITY
1. Irrespective of police powers vested by statute in
state, county and municipal officers, and except
where otherwise provided in Idaho Code, it is hereby
declared to be the policy of the state of Idaho that the
primary duty of enforcing all the penal provisions of
any and all statutes of this state, in any court, is
vested in the sheriff and prosecuting attorney of each
of the several counties. When, in the judgment of
such county officers, they need assistance from
municipal peace officers within the county, they are
authorized and directed to call for such assistance
and local officers shall render assistance.
STATUTES
31-2607. ADVISER OF COUNTY
COMMISSIONERS.
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STATUTES
31-2607. ADVISER OF COUNTY
COMMISSIONERS.
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ADVICE
Legal advice and policy advice are not
necessarily the same.
ADVICE
All policy decisions have potential legal
consequences
ADVICE
Legal advice should be the foundation for all
policy decisions.
ADVICE
Legal advice is the Prosecutor's
responsibility.
ADVICE
Legal advice is the Prosecutor's
responsibility.
Policy decisions are your responsibility.
LEGAL vs. POLICY
Easy = “the law says you can/cannot do
__________________”
LEGAL vs. POLICY
Easy = “the law says you can/cannot do
__________________”
More difficult (challenging) = “maybe,” “more
likely ____________ than _____________,”
“it’s not clear” . . .
ATTORNEY/CLIENT PRIVILEGE
ATTORNEY/CLIENT PRIVILEGE
Idaho Rule of Evidence 502(b) – A client or a
lawyer (for a client) “has a privilege to refuse
to disclose and to prevent any other person
from disclosing confidential communications
made for the purpose of facilitating the
rendition of professional legal services . . .”
ATTORNEY/CLIENT PRIVILEGE
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ATTORNEY/CLIENT PRIVILEGE
Idaho Rules of Professional Conduct
1.6(a) A lawyer may not reveal information
relating to representation of a client unless the
client gives informed consent, the disclosure is
impliedly authorized in order to carry out the
representation or the disclosure is permitted by
paragraph (b).
ATTORNEY/CLIENT PRIVILEGE
Idaho Rules of Evidence 502(d) exceptions:
(1) Furtherance of crime or fraud. If the services
of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to
commit what the client knew or reasonably
should have known to be a crime or fraud;
(3) Breach of duty by a lawyer or client. As to a
communication relevant to an issue of
breach of duty by the lawyer to the lawyer's
client or by the client to the client's lawyer;
ATTORNEY/CLIENT PRIVILEGE
Idaho Rules of Professional Conduct 1.6(b)
exceptions:
(1) to prevent the client from committing a
crime, including disclosure of the intention to
commit a crime;
(2) to prevent reasonably certain death or
substantial bodily harm;
ATTORNEY/CLIENT PRIVILEGE
Idaho Rules of Professional Conduct 1.6(b)
exceptions:
(3) to prevent, mitigate or rectify substantial
injury to the financial interests or property of
another that is reasonably certain to result or
has resulted from the client's commission of a
crime in furtherance of which the client has
used the lawyer's services;
ATTORNEY/CLIENT PRIVILEGE
Idaho Rules of Professional Conduct 1.6(b)
exceptions:
(5) to establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer
and the client, to establish a defense to a
criminal charge or civil claim against the lawyer
based upon conduct in which the client was
involved, or to respond to allegations in any
proceeding concerning the lawyer's
representation of a client;
ATTORNEY/CLIENT PRIVILEGE
Consent
PURPOSE OF ATTORNEY/CLIENT
PRIVILEGE
Allows open, honest conversation.
PURPOSE OF ATTORNEY/CLIENT
PRIVILEGE
Allows open, honest conversation.
Helps insure well-considered decisions.
PURPOSE OF ATTORNEY/CLIENT
PRIVILEGE
Allows open, honest conversation.
Helps insure well-considered decisions.
Protects work product (thoughts/analysis/
weighing of pros and cons/etc.).
EXECUTIVE SESSION
74-206. EXECUTIVE SESSIONS -- WHEN
AUTHORIZED.
(d) To consider records that are exempt from
disclosure as provided in chapter 3, title 9,
Idaho Code;
EXECUTIVE SESSION
74-206. EXECUTIVE SESSIONS -- WHEN
AUTHORIZED.
(d) To consider records that are exempt from
disclosure as provided in chapter 3, title 9,
Idaho Code;
I.C. 74-104. RECORDS EXEMPT FROM
DISCLOSURE -- EXEMPTIONS IN
FEDERAL OR STATE LAW -- COURT FILES
OF JUDICIAL PROCEEDINGS.
(1) Any public record exempt from disclosure by
. . . state law . . .
EXECUTIVE SESSION
I.C. 9-203(2) – STATUTORY ATTORNEY/CLIENT
PRIVILEGE. An attorney cannot, without the
consent of his client, be examined as to any
communication made by the client to him, or his
advice given thereon in the course of professional
employment. The word client used herein shall be
deemed to include a person, a corporation or an
association.
EXECUTIVE SESSION
I
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7
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EXECUTIVE SESSION
I.C. 74-206(1) -
EXECUTIVE SESSIONS -
- WHEN AUTHORIZED.
-
(f) To communicate
with legal counsel for the public agency to
discuss the legal ramifications of and legal
options for pending litigation, or controversies
not yet being litigated but imminently likely to
be litigated. The mere presence of legal
counsel at an executive session does not
satisfy this requirement;
BEST PRACTICE
Have something in writing.
BEST PRACTICE
BEST PRACTICE
3
RD
PARTIES
Prosecutors should not give legal advice to
private citizens
3
RD
PARTIES
Prosecutors should not give legal advice to
private citizens
May provide information
3
RD
PARTIES
Prosecutors should not give legal advice to
private citizens
May provide information
May refer (to a private attorney, law
enforcement, etc.)
3
RD
PARTIES
Prosecutors should not give legal advice to
private citizens
May provide information
May refer (to a private attorney, law
enforcement, etc.)
Exception: part-time prosecutors may
represent and advise 3
rd
parties so long as
there is no conflict with his/her public duties
3
RD
PARTIES
Prosecutor’s duty is to BOCC and elected
officials
3
RD
PARTIES
Prosecutor’s duty is to BOCC and elected
officials
Avoid potential conflicts of interest
3
RD
PARTIES
Prosecutor’s duty is to BOCC and elected
officials
Avoid potential conflicts of interest
Avoid potentially lending the county’s
credibility to a private dispute
3
RD
PARTIES
If referring a third party to the prosecutor's
office, give us a heads up.
SPECIALIZED SERVICES
SPECIALIZED SERVICES
Would you
hire a divorce lawyer in a DUI case?
SPECIALIZED SERVICES
Would you
hire a divorce lawyer in a DUI case?
hire a DUI lawyer for a real estate
transaction?
SPECIALIZED SERVICES
Would you
hire a divorce lawyer in a DUI case?
hire a DUI lawyer for a real estate
transaction?
hire a real estate lawyer for a personal injury
lawsuit?
SPECIALIZED SERVICES
Prosecutors are generally most experienced in
Criminal law
General government/civil law
SPECIALTY AREAS
Bond attorneys
Water law attorneys
Insurance defense attorneys
Deferred compensation plan specialists
Etc.
SPECIALTY AREAS
Can outside counsel be hired?
SPECIALTY AREAS
Can outside counsel be hired?
Yes, but only on a case-by-case basis and
with a specific finding of “necessity”
Idaho Const. Article 18,
§
6; Attorney General
Opinion 93-8
SPECIALTY AREAS
To hire outside counsel
SPECIALTY AREAS
To hire outside counsel
Motion and Order specifying case and
“necessity”
SPECIALTY AREAS
To hire outside counsel
Motion and Order specifying case and
“necessity”
Best practice – get your prosecutor’s
concurrence
SPECIALTY AREAS
If no documented case-specific finding of
“necessity”
Risk = Declared void and all fees subject to
repayment
DISAGREEMENTS
DISAGREEMENTS
Will happen
DISAGREEMENTS
Will happen
Talk it out – “What’s the problem”
DISAGREEMENTS
Will happen
Talk it out – “What’s the problem”
Legal or policy disagreement?
OPINION SHOPPING
Who is your favorite?
ATTORNEY GENERAL?
ICRMP?
IAC
Be up front
Be up front
We call them, too
Be up front
We call them, too
Agree to consult with attorneys experienced
in the area
Agree to disagree
IF ALL ELSE FAILS
Case specific motion and order listing
“necessity”
CONFLICTS BETWEEN ELECTED
OFFICIALS
CONFLICTS BETWEEN ELECTED
OFFICIALS
Prosecutor’s primary duty is to the Board of
County Commissioners
CONFLICTS BETWEEN ELECTED
OFFICIALS
3
1
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2
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WARRANTY:
With the proper care, feeding and use, your
prosecutor can:
Help insure that the policy decisions you make
are legal
Can even give you “immunity” in certain
situations (i.e. Idaho Code 59-704 regarding
potential conflicts of interests).
STATUTES
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QUESTIONS?
In this informative text, the duties and responsibilities of a prosecuting attorney, exemplified by William W. Thompson, Jr. of Latah County, are discussed. The loyalty oath, statutes, and primary responsibilities associated with the role of a prosecutor are highlighted, emphasizing legal and proper conduct at all times.
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THE ROLE OF THE PROSECUTOR AND YOU (Care, Feeding and Proper Use of Your Prosecutor) WILLIAM W. THOMPSON, JR. LATAH COUNTY PROSECUTING ATTORNEY IAC
STATUTES I.C. 59-401. LOYALTY OATH -- FORM. Before any officer elected or appointed to fill any office created by the laws of the state of Idaho enters upon the duties of his office, he must take and subscribe an oath, to be known as the official oath, which is as follows: "I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Idaho, and that I will faithfully discharge the duties of (insert office) according to the best of my ability."
STATUTES 31-2604. DUTIES OF PROSECUTING ATTORNEY. It is the duty of the prosecuting attorney:
STATUTES 31-2604. DUTIES OF PROSECUTING ATTORNEY. It is the duty of the prosecuting attorney: 3. To give advice to the board of county commissioners, and other public officers of his county, when requested in all public matters arising in the conduct of the public business entrusted to the care of such officers.
STATUTES 31-2001. COUNTY OFFICERS ENUMERATED. The officers of a county are: 1. A sheriff. 2. A clerk of the district court, who shall be ex officio auditor and recorder, and ex officio clerk of the board of county commissioners. 3. An assessor. 4. A prosecuting attorney. 5. A county treasurer, who shall be ex officio public administrator and ex officio tax collector. 6. A coroner. 7. Three (3) members of the board of county commissioners.
STATUTES 31-2227. ENFORCEMENT OF PENAL LAWS PRIMARY RESPONSIBLITY 1. Irrespective of police powers vested by statute in state, county and municipal officers, and except where otherwise provided in Idaho Code, it is hereby declared to be the policy of the state of Idaho that the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the sheriff and prosecuting attorney of each of the several counties. When, in the judgment of such county officers, they need assistance from municipal peace officers within the county, they are authorized and directed to call for such assistance and local officers shall render assistance.
STATUTES 31-2607. ADVISER OF COUNTY COMMISSIONERS. The prosecuting attorney is the legal adviser of the board of commissioners; he must attend their meetings when required, and must attend and oppose all claims and accounts against the county when he deems them unjust or illegal.
STATUTES 31-2607. ADVISER OF COUNTY COMMISSIONERS. The prosecuting attorney is the legal adviser of the board of commissioners; he must attend their meetings when required, and must attend and oppose all claims and accounts against the county when he deems them unjust or illegal. The Board of County Commissioners is the prosecutor s primary client.
ADVICE Legal advice and policy advice are not necessarily the same.
ADVICE All policy decisions have potential legal consequences
ADVICE Legal advice should be the foundation for all policy decisions.
ADVICE Legal advice is the Prosecutor's responsibility.
ADVICE Legal advice is the Prosecutor's responsibility. Policy decisions are your responsibility.
LEGAL vs. POLICY Easy = the law says you can/cannot do __________________
LEGAL vs. POLICY Easy = the law says you can/cannot do __________________ More difficult (challenging) = maybe, more likely ____________ than _____________, it s not clear . . .
ATTORNEY/CLIENT PRIVILEGE Idaho Rule of Evidence 502(b) A client or a lawyer (for a client) has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services . . .
ATTORNEY/CLIENT PRIVILEGE Idaho Code 9-203(2) - An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. The word client used herein shall be deemed to include a person, a corporation or an association.
ATTORNEY/CLIENT PRIVILEGE Idaho Rules of Professional Conduct 1.6(a) A lawyer may not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
ATTORNEY/CLIENT PRIVILEGE Idaho Rules of Evidence 502(d) exceptions: (1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; (3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the lawyer's client or by the client to the client's lawyer;
ATTORNEY/CLIENT PRIVILEGE Idaho Rules of Professional Conduct 1.6(b) exceptions: (1) to prevent the client from committing a crime, including disclosure of the intention to commit a crime; (2) to prevent reasonably certain death or substantial bodily harm;
ATTORNEY/CLIENT PRIVILEGE Idaho Rules of Professional Conduct 1.6(b) exceptions: (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime in furtherance of which the client has used the lawyer's services;
ATTORNEY/CLIENT PRIVILEGE Idaho Rules of Professional Conduct 1.6(b) exceptions: (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of a client;
ATTORNEY/CLIENT PRIVILEGE Consent
PURPOSE OF ATTORNEY/CLIENT PRIVILEGE Allows open, honest conversation.
PURPOSE OF ATTORNEY/CLIENT PRIVILEGE Allows open, honest conversation. Helps insure well-considered decisions.
PURPOSE OF ATTORNEY/CLIENT PRIVILEGE Allows open, honest conversation. Helps insure well-considered decisions. Protects work product (thoughts/analysis/ weighing of pros and cons/etc.).
EXECUTIVE SESSION 74-206. EXECUTIVE SESSIONS -- WHEN AUTHORIZED. (d) To consider records that are exempt from disclosure as provided in chapter 3, title 9, Idaho Code;
EXECUTIVE SESSION 74-206. EXECUTIVE SESSIONS -- WHEN AUTHORIZED. (d) To consider records that are exempt from disclosure as provided in chapter 3, title 9, Idaho Code; I.C. 74-104. RECORDS EXEMPT FROM DISCLOSURE -- EXEMPTIONS IN FEDERAL OR STATE LAW -- COURT FILES OF JUDICIAL PROCEEDINGS. (1) Any public record exempt from disclosure by . . . state law . . .
EXECUTIVE SESSION I.C. 9-203(2) STATUTORY ATTORNEY/CLIENT PRIVILEGE. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. The word client used herein shall be deemed to include a person, a corporation or an association.
EXECUTIVE SESSION I.C. 74-107(11) RECORDS EXEMPT FROM DISCLOSURE -- (11) Records of any risk retention or self- insurance program prepared in anticipation of litigation or for analysis of or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund except as otherwise discoverable under the Idaho or federal rules of civil procedure. These records shall include, but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in settlement shall be deemed a public record unless otherwise ordered to be sealed by a court of competent jurisdiction. Provided however, nothing in this subsection is intended to limit the attorney client privilege or attorney work product privilege otherwise available to any public agency or independent public body corporate and politic.
EXECUTIVE SESSION I.C. 74-206(1) - EXECUTIVE SESSIONS - - WHEN AUTHORIZED. - (f) To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement;
BEST PRACTICE Have something in writing.
3RDPARTIES Prosecutors should not give legal advice to private citizens
3RDPARTIES Prosecutors should not give legal advice to private citizens May provide information
3RDPARTIES Prosecutors should not give legal advice to private citizens May provide information May refer (to a private attorney, law enforcement, etc.)
3RDPARTIES Prosecutors should not give legal advice to private citizens May provide information May refer (to a private attorney, law enforcement, etc.) Exception: part-time prosecutors may represent and advise 3rdparties so long as there is no conflict with his/her public duties
3RDPARTIES Prosecutor s duty is to BOCC and elected officials
3RDPARTIES Prosecutor s duty is to BOCC and elected officials Avoid potential conflicts of interest
3RDPARTIES Prosecutor s duty is to BOCC and elected officials Avoid potential conflicts of interest Avoid potentially lending the county s credibility to a private dispute
3RDPARTIES If referring a third party to the prosecutor's office, give us a heads up.
SPECIALIZED SERVICES Would you hire a divorce lawyer in a DUI case?
SPECIALIZED SERVICES Would you hire a divorce lawyer in a DUI case? hire a DUI lawyer for a real estate transaction?
SPECIALIZED SERVICES Would you hire a divorce lawyer in a DUI case? hire a DUI lawyer for a real estate transaction? hire a real estate lawyer for a personal injury lawsuit?
SPECIALIZED SERVICES Prosecutors are generally most experienced in Criminal law General government/civil law
SPECIALTY AREAS Bond attorneys Water law attorneys Insurance defense attorneys Deferred compensation plan specialists Etc.
