By Jack Roady
TDCAA Board President & Criminal District Attorney in Galveston County
A recent Reuters article sounded the alarm about the state of our profession: Prosecutor offices across the country are facing a crippling shortage of lawyers due to dramatic declines in hiring and retention. The article cites crushing caseloads, lack of trial opportunities (only made worse by the COVID pandemic), low salaries compared to private practice, burnout, and declining public opinion of the profession as all contributing to the problem.
I’m certain the news comes as no surprise to many of us, as we are daily grappling with the fallout of these conditions. In fact, TDCAA’s Long Range Planning Committee has identified recruitment and retention as one of the biggest challenges we face. Prosecutor offices are fighting battles on multiple fronts.
A current case in point: Among all the urgent matters competing for our attention has been news that a proposal is hurtling our way that could permanently alter our profession—and for the worse. Since September 2021, the State Bar’s Committee on Disciplinary Rules and Referenda has been promoting an amendment to Rule 3.09. The amendment would dramatically increase ethical obligations for prosecutors, and at least as originally proposed, create a practically impossible requirement that prosecutors report, investigate, and litigate potentially exculpatory matters for the lifetime of their careers, even after they are no longer working as prosecutors. This change would not only further discourage new lawyers from entering our profession, but also give veteran prosecutors serious cause to consider leaving it altogether.
Shannon Edmonds’s regular Interim Update emails do a great job of narrating the evolution of this issue, so I commend them to your reading for further detail. The details of the Rule 3.09 proposal are not the point of this column. Rather, as I looked back on months of discussions among prosecutors to coordinate a response to the proposed rule change, I was struck by just how much time, research, and mental and emotional energy they poured into this issue—all for the sake of the good of our profession.
A committee of prosecutors formed to respond to the State Bar’s proposal. The committee drafted multiple letters to the State Bar and engaged in numerous discussions internally about how best to confront what many believe is the latest attack on our profession. When the State Bar recently held a virtual hearing on the proposed rule change, a number of elected and assistant prosecutors testified. They presented a collectively cogent argument as to why the proposed changes were detrimental, duplicative, and downright impossible to implement in the real world. None of this testimony was off-the-cuff—it was apparent that the speakers had put much thought and preparation into this meeting beforehand.
Those serving on the committee and those who prepared and testified at the hearing had plenty of other demands weighing on them. Like prosecutors all over the country, they are shouldering overwhelming caseloads, made even more burdensome by COVID court closures. These same prosecutors also have obligations to the offices and personnel they lead, as well as to the demands of the communities they serve—and not to mention their own families. Yet they took precious time—a lot of time—away from these things to focus on a task that for many of us would have been just another irrelevant distraction.
Some of the men and women working so hard on this issue are nearing the end of their careers. Why then, with the finish line in not-too-distant view, would they invest so heavily in something that likely won’t be their professional concern much longer?
Time and again, I see people in our profession set aside their personal needs and demands because they are committed to “guarding the trust.” A trust is, of course, something of value given into the care of another, to be tended and stewarded for the benefit of someone else. Being a good trustee means we labor not just for the present but for the long term as well. Hyacinthe Loyson, a 19th Century French theologian, offered the following in a sermon about a person’s call to be faithful in our work, though the immediate benefit of our labor may not be apparent: “These trees which he plants, and under whose shade he shall never sit—he loves them for themselves, and for the sake of his children and his children’s children, who are to sit beneath the shadow of their spreading boughs.”
While managing our day-to-day demands, we also have to keep an eye focused on the future and keep a hand ready to tend it well. We must effectively meet the tyranny of the urgent, but as public servants our responsibility goes far beyond that. The people in whose name we serve have entrusted us with an incredible amount of authority so that we might preserve the peace and dignity of the State. The strength of the justice system turns on public trust, and public trust turns on just how well we exercise that authority, now and in the years to come. We must carefully guard what has been committed to our trust—that is, this profession which alone bears the responsibility to see that justice is done. We have a duty to preserve, protect, and improve all that it means to be a prosecutor, for the sake of those who have gone before us and for those who will come after us.
So, let us be more than just prosecutors for the moment. Let’s keep planting and tending trees for the sake of those who will sit beneath the shadow of their spreading boughs, even long after we are gone. Though at times it may seem an overwhelming and impossible task, the stakes are just too high to ignore. Our profession is worth it. i
 1870, The Family and the Church: Advent Conferences of Notre-Dame, Paris, 1866-7, 1868-9, Reverend Father Hyacinthe (Late Superior of the Barefoot Carmelites of Paris), Edited by Leonard Woolsey Bacon, Lecture Fourth, December 23, 1866, Fatherhood, Start Page 106, Quote Page 113, G. P. Putnam & Son, New York.