McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys

Congressional research reportDec 18, 2001

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McDade-Murtha Amendment:

Ethical Standards for

Justice Department Attorneys

Updated December 18, 2001

-name redactedSenior Specialist

American Law Division

Congressional Research Service ˜ The Library of Congress

McDade-Murtha Amendment: Ethical Standards for

Justice Department Attorneys

Summary

The McDade-Murtha Amendment, 28 U.S.C. 530B, requires federal prosecutors

to follow state and federal rules of professional responsibility in effect in the states

where they conduct their activities. It also continues in place the sixty year old

directive that federal prosecutors follow the ethics rules promulgated by the states in

which they are licensed to practice. Proponents claim the change will confirm that

federal prosecutors must follow the same ethical rules as other lawyers and will

enhance the prospect of some protection against wayward federal prosecutors.

Opponents charge that it will implicitly undermine the Attorney General's authority

to preempt state laws that conflict with federal law enforcement interests and that in

doing so it will jeopardize the use of undercover techniques against terrorists, drug

kingpins and child predators because of possible interpretations of the so-called no

contact rule.

Under the no contact rule, accepted in virtually every American jurisdiction, a

lawyer in representing a client may "not communicate about the subject of the

representation with a person the lawyer knows to be represented by another lawyer

in the matter, unless the lawyer has the consent of the other lawyer or is authorized

by law to do so." The rule was designed to prevent lawyers from taking unfair

advantage of their untutored opponents.

The Justice Department is troubled by judicial interpretations of the rule that

indicate that it may apply: (1) in criminal cases prior to arrest or indictment; (2) to

federal prosecutors whose only contact is through informants, cooperative witnesses,

undercover agents, or federal investigators; (3) even though the represented client

initiated the contact; or (4) to contacts with the employees or agents of an

organizational target of a federal administrative and civil investigation. The courts

have thus far repudiated the efforts of the Department to craft an exception for federal

prosecutors administratively.

Similar concerns stimulated by rules covering the disclosure of exculpatory

evidence to the grand jury and the use of grand jury subpoenas against attorneys seem

to have been eased by internal guidelines and more favorable jurisprudence.

At its heart, the debate involves defining the ethical bounds within which

Department of Justice attorneys must operate and deciding to whom that task should

be assigned.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Legislative Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Apparent Points of Disagreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Federal Prosecutorial Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Protective and Corrective Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Department of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Civil Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State Bar Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Objections to the Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

No Contact Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hammad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lopez & Ferrara: Client Initiated Contacts . . . . . . . . . . . . . . . . . . . . . . . . 16

O'Keefe: No Contact & Corporate Civil Enforcement . . . . . . . . . . . . . . . 18

Justice Department Regulations After the Amendment . . . . . . . . . . . . . . . 18

Ethics and the Grand Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Attorney Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Prosecutors and Undercover Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Who Should Regulate the Ethics of Federal Prosecutors . . . . . . . . . . . . . 25

Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

State Standards of Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . . 29

The No Contact Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Grand Jury Exculpatory Evidence Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Grand Jury Subpoena Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

United States District Court Rules:

Standards of Attorney Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

United States Attorneys' Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

§9-11.233 Presentation of Exculpatory Evidence . . . . . . . . . . . . . . . . . . . 52

§9-13.410 Guidelines for Issuing Grand Jury or Trial Subpoena to Attorneys for

Information Relating to the Representation of Clients . . . . . . . . . . 52

[Department of Justice] Criminal Resource Manual 263 . . . . . . . . . . . . . . 53

28 C.F.R. Pt. 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

McDade-Murtha Amendment: Ethical

Standards for Justice Department Attorneys

Introduction

The McDade-Murtha Amendment, 28 U.S.C. 530B, requires federal prosecutors

to follow state and local federal court rules of professional responsibility in effect in

the states where they conduct their activities. Proponents claim the change confirms

that federal prosecutors must follow the same ethical rules as other lawyers and

enhances the prospect of some protection against wayward federal prosecutors.

Opponents charge that it implicitly undermines the Attorney General’s authority to

preempt state laws which conflict with federal law enforcement interests and that in

doing so it jeopardizes the use of undercover techniques against terrorists, drug

kingpins and child predators.

Summary of the Amendment

The Amendment1 declares that “[a]n attorney for the Government shall be

subject to State laws and rules, and local Federal court rules, governing attorneys in

each State where such attorney engages in that attorney's duties, to the same extent

and in the same manner as other attorneys in that State,” 28 U.S.C. 530B(a).

The phrase “attorneys for the government” is defined to include only Justice

Department attorneys and those exercising federal litigation authority, including

federal independent counsel.2 The Attorney General is empowered to promulgate the

The proposition was originally proposed by Congressmen McDade and Murtha as part of

the Citizens Protection Act, H.R. 3396 (106th Cong.).

28 U.S.C. 530B(c)(“(c) As used in this section, the term `attorney for the Government'

includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal

Regulations and also includes any independent counsel, or employee of such a counsel,

appointed under chapter 40").

28 C.F.R. §77.2 provides, “As used in this part, the following terms shall have the

following meanings, unless the context indicates otherwise: (a) the phrase attorney for the

government means the Attorney General, the Deputy Attorney General, the Solicitor General,

the Assistant Attorneys General for, and any attorney employed in, the Antitrust Division,

Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources

Division, and Tax Division; the Chief Counsel of the DEA and any attorney employed in that

office; the General Counsel of the FBI and any attorney employed in that office or in the

(Office of General Counsel) of the FBI; any attorney employed in, or head of, any other legal

office in a Department of Justice agency; any United States Attorney; any Assistant United

States Attorney; any Special Assistant to the Attorney General or Special Attorney duly

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regulations necessary to implement the statute's instructions, 28 U.S.C. 530B(b).

The appropriations law which enacted the Amendment elsewhere reminded the

Department of Justice of the command first issued in 1938 to the effect that its

attorneys must comply with the ethical standards of the state bars to which they are

admitted.3

Legislative Background

Congress included the Amendment as section 801 of the Omnibus Consolidated

and Emergency Supplemental Appropriations Act, 112 Stat. 2681-118 (1998).

Section 801 was a remnant of the Citizens’ Protection Act whose roots extend back

at least to the 101st Congress when the House Government Operations Committee

appointed pursuant to 28 U.S.C. 515; any Special Assistant United States Attorney duly

appointed pursuant to 28 U.S.C. 543 who is authorized to conduct criminal or civil law

enforcement investigations or proceedings on behalf of the United States; and any other

attorney employed by the Department of Justice who is authorized to conduct criminal or civil

law enforcement proceedings on behalf of the United States. The phrase attorney for the

government also includes any independent counsel, or employee of such counsel, appointed

under chapter 40 of title 28, United States Code. The phrase attorney for the government

does not include attorneys employed as investigators or other law enforcement agents by the

Department of Justice who is not authorized to represent the United States in criminal or civil

law enforcement litigation or to supervise such proceedings. . . .

“(c) The phrase civil law enforcement investigation means any investigation of possible

civil violations of, or claims under, federal law that may form the basis for a civil law

enforcement proceeding.

“(d) The phrase civil law enforcement proceeding means a civil action or proceeding

before any court or other tribunal brought by the Department of Justice under the authority

of the United States to enforce federal laws or regulations, and includes proceedings related

to the enforcement of an administrative subpoena or summons or civil investigative demand.”

Sec. 102, P.L.No. 105-277, 112 Stat.2681-66 (1998): “Authorities contained in the

Department of Justice Appropriation Authorization Act, Fiscal Year 1980 (Public Law 96132; 93 Stat. 1040 (1979)), as amended, shall remain in effect until the termination date of

this Act or until the effective date of a Department of Justice Appropriation Authorization

Act, whichever is earlier.” The 1979 limitation has been carried forward in annual Justice

Department appropriations ever since, e.g., P.L.No. 106-113, 113 Stat. 1501A-19 (1999);

P.L.No. 106-553, 114 Stat. 2762A-67 (2000).

Section 3(a) of the 1979 legislation declares that, "None of the sums authorized to be

appropriated by this Act may be used to pay the compensation of any person employed after

the date of the enactment of this Act as an attorney (except foreign counsel employed in

special cases) unless such person shall be duly licensed and authorized to practice as an

attorney under the laws of a State, territory, or the District of Columbia," 93 Stat. 1044

(1979).

Virtually identical language had appeared in every Justice Department appropriation act

prior to 1979 all the way back to 1938, 52 Stat. 269 (1938). Since an attorney can only be

“duly licensed and authorized to practice” if he or she agrees to adhere to the ethical standards

required of members of the bar, the courts have understood this requirement to mean that

Justice Department attorneys must follow the ethical standards prescribed by the states in

which they were admitted to practice, United States v. Ferrara, 847 F.Supp. 964, 969

(D.D.C. 1993), aff'd on other grounds, 54 F.3d 825 (D.C.Cir. 1995).

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conducted hearings4 and recommended among other things a thorough examination

of the ethics rules applicable to Department attorney while expressing concern over

“the problems inherent in any system of self-policing and regulation,” H.Rept. 101986, at 35 (1990).

The issue lay dormant until the 104th Congress, when Representative McDade

introduced a bill, using essentially the same language found in section 801.5 The

House Judiciary Courts and Intellectual Property Subcommittee held hearings,6 but

Congress took no other action.7

Congressman McDade reintroduced the measure early in the 105th Congress

(H.R. 232). He and Congressman Murtha subsequently offered a second bill, the

Citizens Protection Act (H.R. 3396), which added sections on punishable conduct and

on a Misconduct Review Board to ensure enforcement of basic ethical standards.

There were no committee hearings held, nor reports issued, on either bill, but the

House Appropriations Committee incorporated the Citizens Protection Act into its

omnibus appropriations measure (H.R. 4276). The Committee's report tersely

explained that the portion of the bill which was eventually enacted was designed to

Exercise of Federal Prosecutorial Authority in a Changing Legal Environment: Hearing

Before the Government Information, Justice, and Agriculture Subcomm. of the House

Comm. on Government Operations, 101st Cong., 2d Sess. (1990).

H.R. 3386 (104th Cong.): Sec. 1."This Act may be cited as the `Ethical Standards for

Federal Prosecutors Act of 1996.' Sec. 2. ETHICAL STANDARDS FOR FEDERAL

PROSECUTORS. (a) IN GENERAL- Chapter 31 of title 18, United States Code, is amended

by adding at the end the following: `Sec. 530B. Ethical standards for attorneys for the

Government. `(a) An attorney for the Government shall be subject to State laws and rules, and

local Federal court rules, governing attorneys in each State where such attorney engages in

that attorney's duties, to the same extent and in the same manner as other attorneys in that

State.

`(b) The Attorney General shall make and amend rules of the Department of Justice to assure

compliance with this section.

`(c) As used in this section, the term `attorney for the Government' includes any attorney

described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations.'"

Ethical Standards for Federal Prosecutors Act of 1996: Hearing Before the Subcomm. on

Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d

Sess. (1996).

Early in the 104th Congress, Senator Dole introduced a comprehensive crime control bill

that included a provision authorizing the Attorney General to shield Justice Department

attorneys from the otherwise applicable ethical standards under state bar rules and local

federal court rules, S.3, §502 ("Notwithstanding the ethical rules or the rules of the court of

any State, Federal rules of conduct adopted by the Attorney General shall govern the conduct

of prosecutions in the courts of the United States"). While the Senate Judiciary Committee

held hearings on various aspects of S.3, none appear to have focused on the ethical standards

issue, Prison Reform: Enhancing the Effectiveness of Incarceration: Hearing Before the

Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995); Federal Law Enforcement

Priorities: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess.

(1995); The Jury and the Search for Truth: The Case Against Excluding Relevant Evidence

at Trial: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995);

S.3 was never reported out of committee.

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confirm that the Attorney General did not have the authority to exempt Department

attorneys from the ethical standards to which other attorneys were held.8 The Senate

version of the measure had no similar provision.

The conference committee for the appropriations package stripped out the

punishable conduct and review board sections leaving section 801 to be passed with

the rest of the compromise bill. Senators Hatch and Leahy, the Chairman and ranking

minority member the Senate Judiciary Committee, greeted section 801's passage with

dismay.9

During the 106th Congress, Senate Hatch introduced legislation repealing the

Amendment and codifying the requirement that federal prosecutors adhere the ethical

standards of the bar to which they were admitted, S.250.10 The Subcommittee on

Criminal Justice Oversight of the House Committee on the Judiciary held hearings,

but no further action was taken.11

Apparent Points of Disagreement

While no single source in the legislative background supplies a full explanation

or even a full identification of the issues reflected in the McDade-Murtha Amendment,

“The bill includes language to make government attorneys subject to laws and rules of the

State and the rules of the local Federal court in which they are practicing and to establish

conduct standards and procedures for Department of Justice employees. Subtitle A, section

811, addresses the concerns of the Committee about the Department of Justice's issuance of

a regulation that exempts its attorneys from the same State laws and rules of ethics which all

other attorneys must follow (59 Fed.Reg. 39910, August 4, 1994),” H.R.Rep.No. 105-636

at 154 (1998). As discussed below, the Department of Justice had reacted to judicial

construction of the so-called "no contact" rule of professional ethics first with a memorandum

from Attorney General Thornburgh and then with regulations from Attorney General Reno

that purported to authorize federal prosecutors to disregard the rule except to the extent noted

in the memorandum/regulations.

144 Cong.Rec. S12798-799 (daily ed. Oct. 21, 1998)(remarks of Sen. Hatch)("This illadvised provision passed the House as an amendment to the House Commerce, State, Justice

Appropriations bill but it never passed the Senate. . . . I would note, however, that in response

to our concerns, the Leadership has inserted a provision which will delay the implementation

of this provision for six months. At the very least, this will give the Department of Justice and

others the opportunity to educate the Congress as to the serious effect this blanket provision

will have on law enforcement. It is my hope and expectation that, during the next sixth

months, we will be able to develop a more workable and effective solution"); 114 Cong.Rec.

S12858-858 (daily ed. Oct. 21, 1998)(remarks of Sen. Leahy)("mischief"); see also, 144

Cong.Rec. S12996-997 (daily ed. Nov. 12, 1998)(remarks of Sen. Abraham).

Senator Hatch also introduced S. 755 which would have delayed the April, 1999 effective

date of the Amendment for another six months.

The Effect of State Ethics Rules on Federal Law Enforcement: Hearing Before the

Subcomm. Of the Sen. Comm. On the Judiciary, 106th Cong., 1st Sess. (1999). Legislative

activity in this Congress is the subject of separate report entitled McDade-Murtha

Amendment: Legislation in the 107th Congress Concerning Ethical Standards for

Department of Justice Litigators, CRS REP. NO. RL (Dec. 18, 2001).

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the legislative record taken as a whole reveals the positions of proponents and

opponents. Proponents maintain:

there are instances of federal prosecutorial abuse

traditional checks on federal prosecutorial abuse have eroded; the

courts have been increasingly reluctant to use their supervisory

powers to prevent or correct prosecutorial abuse; the check once

afforded by scarce resources no longer applies; the incentives for

abuse have become more attractive

the judicial remedies available for prosecutorial abuse (retrial) are

costly and do little to discourage or punish overzealous prosecutors

the Department of Justice's system of self discipline has not been

effective

the disciplinary mechanisms available for enforcement of standards of

conduct for the legal profession offer an impartial means of deterring

and punishing prosecutorial abuse

the disciplinary mechanisms are more effective if they can be invoked

where the abuse occurs rather than where the prosecutor is admitted

to practice

the Attorney General lacks authority claimed by the Justice

Department to waive the ethical standards to which federal

prosecutors must otherwise adhere

the enforcement of standards of professional conduct poses no threat

to effective federal law enforcement; should such a threat develop the

appropriate response is federal legislation

Critics contend:

there are few instances of federal prosecutorial abuse

charges of prosecutorial abuse are the work defense lawyers

attempting to encumber effective law enforcement

the Justice Department has an effective internal means of dealing with

any wayward federal prosecutors

federal prosecutors have and will continue to observe the highest

standards of professional conduct, but under the guise of ethical

standards states have introduced policy determinations (in conflict

with existing federal policies) into the rules, i.e.:

- "no contact" rules that hamstring undercover and other

legitimate investigative techniques

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- requiring the disclosure of exculpatory evidence to the grand

jury

- requiring prior judicial approval before serving a subpoena on

an attorney to appear before the grand jury and testify about clientrelated matters

the Attorney General has preemptive authority to determine the

manner in which federal laws are enforced

state authorities have no power to preempt conflicting law

enforcement policies and standards of conduct founded on federal law

federal law enforcement policies should be determined by federal

authorities not state bar authorities (who are often captives of the

defense bar)

state authorities have no power to pre-empt conflicting federal law

enforcement policies and standards of conduct founded on federal law

requiring federal law enforcement authorities to comply with the

multitude of state bar requirements would impair federal multistate

investigations

Federal Prosecutorial Abuse

During floor debate on the Amendment to strike the Citizens Protection Act

from the appropriations package, several Members of the House spoke from personal

experience of both specific instances12 and of general patterns of prosecutorial

E.g., 144 Cong. Rec. H7229 (daily ed. Aug. 5, 1998) (remarks of Rep. Murtha)

("insidious" and "unethical tactics" used against Rep. McDade); id. at H7230 (remarks of

Rep. Ford) ("5 years of investigating, several years, one trial, a second trial, abuse by the

Justice Department, simply trampling the rights of an individual, another Member of

Congress, I cannot tell you the pain that it exacted on my family and my father personally");

id. at H7233 (remarks of Rep. King) ("I would like to refer to a predecessor that I had here

in the Congress. . . . He was a man who was brought in by the United States Attorney and

told he had to deliver a political leader. When he refused to do that, he was called before the

grand jury. His family was harassed. He was indicted. His friends were indicted. Everything

was leaked to the newspapers. This man's career was destroyed. He was defeated here in the

United States Congress. Finally his case went to trial. The jury was out 30 minutes and he

was acquitted. It came out . . . that all throughout the trial, from day one, the prosecutors had

evidence that would have completely exonerated this defendant . . . the judge said it was

disgrace"); id. at H7245 (remarks of Rep. Duncan) ("We have had far too many cases where

overzealous prosecutors have presented high profile defendants just so that prosecutor could

make a name for himself. I remember the totally unjustified case against President Reagan's

Secretary of Labor, Ray Donovan, in which after he was acquitted, made the famous

statement, "Where do I go to get my reputation back?").

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misconduct.13 Their disclosures often ended with exasperated observations about the

ineffectiveness of existing preventive and remedial measures.14 They were met by

proponents of the amendment who cautioned against overreaction and the dangers of

subjecting federal law enforcement interests to state regulatory authority.15

E.g., 144 Cong. Rec. H7232 (daily ed. Aug. 5, 1998)(remarks of Rep. Kanjorski)("the

prosecutors in the United States today, whether they be special counsels or regular

prosecutors, have shown us that they are going to push it to the end of the envelop and

beyond. They are going to write their own definition of what standards are"); id. at H7233

(remarks of Rep. King)("Prosecutors are out of control. They are ruining the civil liberties

of people in this country"); id. at H7234 (remarks of Rep. Fowler)("Time and time again it

has come to my attention that Department of Justice lawyers have conducted themselves in

a questionable manner while representing the Federal Government without any penalty or

oversight"); id. at H7236 (remarks of Rep. Waters)("I know thousands of Mr. McDades who

do not have any attorneys, whose grandmothers and mothers come crying to my office for me

to help them and I cannot do anything because in my powerful government, prosecutors have

run amuck").

E.g., 144 Cong. Rec. H7229 (daily ed. Aug. 5, 1998)(remarks of Rep. Murtha)("in

addition to trying to intimidate the House of Representatives and ignore the rules of the House,

which the public saw immediately, he was reelected three times during this period, when they

leaked everything that could possibly be leaked, using those unethical tactics we are talking

about during this period of time. Then, after this is all over, they tried to promote the

prosecutor to judge"); id. at H7233 (remarks of Rep. King)(". . . the judge said it was

disgrace. He referred it to the Justice Department to have it investigated. What was done?

Nothing. That is what always happens nothing"); id. at H7239 (remarks of Rep. Hyde)("I go

back to the Iran-Contra days when Elliot Abrams was destroyed by an independent counsel,

I thought very unjustly, when Casper Weinberger was indicted three days before an election,

and there is just no accountability . . ."); id. at H7242 (remarks of Rep. McDade)("Under the

current system that we heard described by my colleagues . . . there is a remedy for a citizen,

once convicted. They can appeal to another court, a higher court. They can make a

recommendation or an argument at OPM, the Office of Professional Responsibility in the

Department of Justice, after they have been convicted; lives ruined, bankrupt. If they can

prove something, they might get a reversal of their case. Let me be specific. In the case of

United States v. Taylor about a year ago, the Department of Justice twisted the testimony of

an individual and convicted him on perjurious testimony. If we read the case, we will read

that the judge that tried it found the employees of the Department guilty of obstruction of

justice. What a charge, corrupting the system that they are supposed to be defending. What

did the Office of Professional Responsibility do after the judge made that finding? Mr.

Chairman, they gave the people who corrupted that system a 5-day suspension form their

jobs").

E.g., 144 Cong. Rec. H7238 (daily ed. Aug. 5, 1998)(remarks of Rep. Bryant)("by and

large these are good prosecutors trying to do the right thing in many cases and in very

dangerous, very tough situations. What I want to guard against here today is an overreaction

to these anecdotal cases"); id. at H7244 (remarks of Rep. Barr)("Let us not throw the baby

out with the bath water. If there have been abuses, then let us address those particular abuses,

but not change and take away the ability of Federal prosecutors to conduct multi-State

investigations"); id. at H7245 (remarks of Rep. Hutchinson)("We have to be careful not to

adopt bad policy because we are sorry for what has happened in the past"); id. at H7246

(remarks of Rep. Harman)("If there is a problem with prosecutorial misconduct, it should

certainly be addressed. But is it better to address it by requiring federal prosecutors adhere

to a single, high standard of conduct, or to 50 different sets of ethics rules? Indeed, some of

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Protective and Corrective Alternatives

The Courts

Although opponents and proponents of the Amendment disagree on its

effectiveness, there are, at least in theory, more than a few devices to prevent and

correct prosecutorial abuse. The courts are perhaps the most obvious source. They

have authority to control criminal trials, to exclude improperly secured evidence, to

overturn convictions, to order new trials, and to punish contempts committed before

them by fine, suspension from practice before them, removal from a particular case,

and/or admonishments and reprimands.

The primary purpose of a federal criminal trial, however, is to determine whether

the accused is guilty beyond a reasonable doubt. Buttressed by tradition and the

Constitution, the courts have long exercised control over the proceedings to ensure

that the determination is made fairly. If a prosecutor's misconduct so infects a trial

as to render any verdict uncertain and unfair or otherwise breaches constitutional

barriers, the courts will respond.16

In the absence of a clear constitutional violation, however, the federal courts,

following the lead of the Supreme Court, have shown a growing reluctance to use

their supervisory powers to exclude evidence, dismiss indictments, or reverse

convictions in order to prevent prosecutorial overreaching.17 Yet courts and

commentators alike have noted a general judicial failure to embrace the alternatives

to exclusion, dismissal, and reversal.18

the state rules may be contrary to the obligations and responsibilities we may require of

federal prosecutors").

United States v. Hastings, 461 U.S. 499, 505 (1983)("guided by considerations of justice

and in the exercise or supervisory powers, federal courts may, within limits, formulate

procedural rules not specifically required by the Constitution or Congress. The purpose

underlying use of the supervisory powers are threefold: to implement a remedy for violation

of recognized rights; to preserve judicial integrity by ensuring that a conviction rests on

appropriate considerations validly before the jury; and finally, as a remedy designed to deter

illegal conduct,") (internal quotations and citations omitted); see also, Twenty-Seventh Annual

Review of Criminal Procedure, "Prosecutorial Misconduct," 86 GEORGETOWN LAW JOURNAL

1677 (1998); Gershman, TRIAL ERROR AND MISCONDUCT (1997).

Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM LAW

REVIEW 355, 363 (1996)("In 1983, in United States v. Hastings, [461 U.S. 499], the

Supreme Court addressed a case in which a Federal Court of Appeals had reversed `gruesome'

sexual abuse convictions `to discipline the prosecutor—and warn other prosecutors' about

their perceived prosecutorial misconduct. The Supreme Court ordered that the convictions be

reinstated, and stated a more restricted view of federal courts' `supervisory power' than was

prevalent in many lower courts. The court noted that remedy `more narrowly tailored' than

reversal on the merits was available: ethical chastisement and discipline of the offending

federal prosecutors").

"We thus find ourselves in a situation with which we are all too familiar: a prosecutor has

engaged in misconduct at trial, but no reversible error has been shown," United States v.

Wilson, 149 F.3d 1726, 1303 (11th Cir.)(Aug. 13, 1998). The Wilson court listed a series

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Department of Justice

The Department of Justice enjoys even more sweeping authority to discipline its

prosecutors, ranging from administrative sanctions to the presentation to a grand jury

for prosecution. In addition to supervisory authority over federal prosecutors by the

various United States Attorneys' Offices, the Department of Justice maintains an

Office of Professional Responsibility (OPR) authorized to receive and review

complaints of prosecutorial misconduct, 28 C.F.R. §0.39a. Neither appear to have

won universal acclaim as an effective hedge against prosecutorial overreaching.19

of alternative sanctions ranging from curative jury instructions to contempt citations, fines,

reprimands, suspension from the bar of the court, removal of the attorney from the case, and

referral to bar disciplinary authorities. It then reiterated an earlier, and apparently unheeded

plea, "`We encourage the district courts in this circuit to remain vigilant . . . and consider

more [fully these sanctions] in cases of persistent or flagrant misconduct,'" 149 F.3d at 1304,

quoting, United States v. Butera, 677 F.2d 1376, 1383 (11th Cir. 1982); Green, Policing

Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement? 8 ST.

THOMAS LAW REVIEW 69, 82 (1995)("In most cases when the propriety of the prosecutor's

conduct is called into question, but no remedy is available to the defendant, district judges

decline to act as disciplinarians, but instead leave it to others to address the question").

A Call for a Uniform Standard of Professional Responsibility in the Federal Court

System: Is Regulation of Recalcitrant Attorneys at the District Court Level Effective? 66

UNIVERSITY OF CINCINNATI LAW REVIEW 901, 919 (1998)("The power to the DOJ to regulate

misconduct over all of its prosecutors in the ninety-four districts has resulted in marked

criticism surrounding the DOJ's ability to effectively regulate its own employees. First, the

OPR has been criticized for rarely asserting its jurisdiction over a DOJ attorney; therefore,

few investigations of DOJ attorneys actually occur. Second, even when the OPR does assert

its jurisdiction, the OPR has been criticized for potential bias because it is regulating one of

its own employees. Third, in the unusual instance where the OPR finds a violation by a DOJ

attorney, the attorney may avoid scrutiny and discipline by simply leaving the employment of

the department. Last, the DOJ rarely issues a public explanation of its internal finding, which

precludes public exposure to OPR findings"); Green, Policing Federal Prosecutors: Do Too

Many Regulators Produce Too Little Enforcement?, 8 ST. THOMAS LAW REVIEW 69, 84-7

(1995); Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal,

or Discipline? 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083, 1109-111 (1994).

A number of courts have lamented the failure of various United States Attorneys' Offices

to supervise wayward Assistant United States Attorneys or to deal with their misconduct, e.g.,

United States v. Kojayan, 8 F.3d 1315, 1324-325 (9th Cir. 1993)("The overwhelming

majority of prosecutors are decent, ethical, honorable lawyers who understand the awesome

power they wield, and the responsibility that goes with it. . . . One of the most important

responsibilities of the United States Attorney and his senior deputies is ensuring that line

attorneys are aware of the special ethical responsibilities of prosecutors, and that they resist

the temptation to overreach. . . . What we find most troubling about this case is not the

AUSA's initial transgression, but that he seemed to be totally unaware he'd done anything at

all wrong, and that there was no one in the United States Attorney's office to set him straight.

Nor does the government's considered response, filed after we pointed out the problem, inspire

our confidence that this kind of thing won't happen again"); United States v. Ming He, 94

F.3d 782, 791 (2d Cir. 1996)("Both cases [Ming He and an earlier case Pinto in which the

Second Circuit warned against a particular form of prosecutorial misconduct] originated in

the same district, and though we characterized the prosecutor's conduct in Pinto as `unseemly,'

the hint to make some sort of change apparently was not acted upon. Instead, the

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Civil Remedies

The victims of federal prosecutorial abuse have few civil remedies at their

disposal. As a general rule, the federal government enjoys sovereign immunity that

prevents it from being sued even for the misconduct of its officers and employees.20

Personally, federal prosecutors enjoy judicial immunity from civil liability for their

court-related activities as prosecutors and qualified immunity for their activities as

investigators.21

Congress may abrogate any of these immunities, but it has done so only to a very

limited extent. It has, for example, authorized the payment of attorneys' fees and

other litigation expenses to "prevailing parties" in a criminal case who are the victims

of prosecutorial misconduct that is "vexatious, frivolous, or in bad faith,"22 and to

government's conduct in this case, we are told, is not a rare occurrence but `standard

practice'"); United States v. Van Engel, 15 F.3d 623, 629 (7th Cir. 1993) ("Someone in the

Milwaukee U.S. Attorney's office should have known . . . [not to] launch a sting operation

[based on meager evidence] against the lawyer of an individual under criminal investigation

by the some office").

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); see also, United States v. Horn, 29 F.3d

754, 767 (1st Cir. 1994)(vacating on sovereign immunity grounds a district court order that

the government pay attorneys' fees resulting from a particularly egregious instance of

prosecutorial misconduct).

Kalina v. Fletcher, 522 U.S. 118 (1997); Imbler v. Pachtman, 424 U.S. 409 (1976);

Buckley v. Fitzsimmons, 509 U.S. 259 (1993).

18 U.S.C. 3006A note, P.L. 105-119, § 617, 111 Stat. 2519 (1997)(“During fiscal year

1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in

which the defendant is represented by assigned counsel paid for by the public) pending on or

after the date of the enactment of this Act [Nov. 26, 1997], may award to a prevailing party,

other than the United States, a reasonable attorney's fee and other litigation expenses, where

the court finds that the position of the United States was vexatious, frivolous, or in bad faith,

unless the court finds that special circumstances make such an award unjust. Such awards

shall be granted pursuant to the procedures and limitations (but not the burden of proof)

provided for an award under section 2412 of title 28, United States Code. To determine

whether or not to award fees and costs under this section, the court, for good cause shown,

may receive evidence ex parte and in camera (which shall include the submission of classified

evidence or evidence that reveals or might reveal the identity of an informant or undercover

agent or matters occurring before a grand jury) and evidence or testimony so received shall

be kept under seal. Fees and other expenses awarded under this provision to a party shall be

paid by the agency over which the party prevails from any funds made available to the agency

by appropriation. No new appropriations shall be made as a result of this provision”).

CRS-11

unindicted subjects of an independent counsel investigation.23 These authorize relief;

they do not speak to either prevention or punishment.

State Bar Authorities

Either the courts or the Department of Justice may refer evidence of a federal

prosecutor's ethical violations to the authorities of the bar in the state in which he or

she is admitted to practice for disciplinary action. For some time, federal prosecutors

have been required to be licensed to practice law in at least one state, district or

territory of the United States and consequently to adhere to the ethical standards

established for the jurisdictions in which they are licensed. Each jurisdiction has its

own means of enforcing adherence to its ethical dictates. Attorneys remain subject

to those demands wherever they go, but disciplinary enforcement for out-of-state

misconduct is more cumbersome. Complaints are less like to be filed, more costly to

investigate, and less convenient to contest. This can be especially telling in the case

of federal prosecutors who need not be licensed in the jurisdiction in which they are

appointed nor in every jurisdiction in which they perform their duties.

The Amendment seeks to overcome this difficulty by requiring federal

prosecutors to follow the ethical standards of any jurisdiction in which they conduct

their duties. Critics challenge not the effectiveness of the proposal, but as discussed

below at greater length, whether federal law enforcement interests ought to preempt

state dictates, at least under some circumstances.

Objections to the Amendment

The basic objections to section 801 seem to address what it does not do and

what it portends rather than what it does. The 1996 hearings on virtually identical

language contain perhaps the clearest statement of the Department of Justice's

objections to passage of the Amendment— concern over state regulation of federal

law enforcement and repudiation of the Department's claim of authority to preempt

state pronouncements that conflict with federal law enforcement interests:

28 U.S.C. 593(f)("(1) Award of fees.—Upon the request of an individual who is the subject

of an investigation conducted by an independent counsel pursuant to this chapter, the division

of the court may, if no indictment is brought against such individual pursuant to that

investigation, award reimbursement for those reasonable attorneys' fees incurred by that

individual during that investigation which would not have been incurred but for the

requirements of this chapter. The division of the court shall notify the independent counsel

who conducted the investigation and Attorney General of any request for attorneys' fees under

this subsection. (2) Evaluation of fees.—The division of the court shall direct such

independent counsel and the Attorney General to file a written evaluation of any request for

attorneys' fees under this subsection, addressing-- (A) the sufficiency of the documentation;

(B) the need or justification for the underlying item; (C) whether the underlying item would

have been incurred but for the requirements of this chapter; and (D) the reasonableness of the

amount of money requested").

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H.R. 3386 does, however, have the potential to seriously compromise the

public's interest in effective law enforcement. Among other things, the bill could

seriously hamstring the Department's ability to conduct undercover

investigations. . . .

The primary manner in which H.R. 3386 would affect Federal law

enforcement would be by implicitly cutting back on the Attorney General's

preemption power. Although the Department requires its attorneys to comply

with State ethics rules, the Attorney General currently has the power to preempt

those rules when they conflict with Federal law enforcement and interfere with

her ability to conduct necessary law enforcement operations. By silently

overriding the Attorney General's power in this area, H.R. 3386 could effect at

least two important and undesirable changes in current law.

First, it would leave Federal law enforcement vulnerable to hostile State

ethics rulings or decisions that interfere with the enforcement of Federal law.

Several States, for example, have tried to use "ethics rules" to alter the nature

and function of the Federal jury, for example, by dictating to Federal prosecutors

what evidence they must present to a grand jury or by requiring that prosecutors

obtain judicial approval before obtaining subpoenas for evidence from attorneys

....

A second and related consequences of H.R. 3386 would be to call into

question the Department's regulation on contacts with represented persons.

Historically, when investigations were carried out exclusively by the police and

Federal investigator, ethics rules governing attorneys' contacts with represented

persons did not interfere with the legitimate needs of law enforcement; lawyers

simply weren't involved. . . . [O]ver the past decades . . . prosecutors have

increasingly become more involved in the early stages of criminal investigations.

Generally overwhelmingly, the judicial response has been to recognize that

contacts rules do not apply to prosecutors engaged in pre-indictment law

enforcement investigations. Nevertheless, prosecutors have increasingly faced

contacts-based challenges to law enforcement techniques that were previously

unquestioned. Over the past decade these developments have resulted in two

highly significant problems for Federal prosecutors.

First, the expansive application of the contacts rule in some jurisdictions has

threatened legitimate and essential law enforcement activities. . . .

Second, Federal prosecutors are facing conflicting interpretations of the

contacts regulations by various State and Federal authorities. . . .

Ethical Standards for Federal Prosecutors Act of 1996: Hearing Before the

Subcomm. on Courts and Intellectual Property of the House Comm. on the

Judiciary, 104th Cong., 2d Sess. 12-3 (1996)(testimony of Seth P. Waxman,

Associate Deputy Attorney General)(emphasis added).

No Contact Rules

Rule 4.2 of the American Bar Association's Model Code of Professional Conduct

declares that, "In representing a client, a lawyer shall not communicate about the

subject of the representation with a person the lawyer knows to be represented by

another lawyer in the matter, unless the lawyer has the consent of the other lawyer or

is authorized by law to do so." Rule 4.2, or its predecessor under the ABA's Code

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of Professional Responsibility,24 has been adopted by each of the States25 and

consequently by the vast majority of federal courts.26

Justice Department discomfort with the rule flows not from its explicit demands

but from its construction in the face of the shifting realities of contemporary law

enforcement practices. These may be best demonstrated by the facts of the cases the

Department finds troubling.

Hammad

Conflicts over the reach of the no contact rule came to a head with a case called

United States v. Hammad.27 The government began an investigation of Hammad, a

ABA Code of Professional Responsibility, DR 7-104(A)("During the course of his

representation of a client a lawyer shall not: (1) Communicate or cause another to

communicate on the subject of the representation with a party he knows to be represented by

a lawyer in that matter unless he has the prior consent of the lawyer representing such other

party or is authorized by law to do so. (2) Give advice to a person who is not represented by

a lawyer, other than the advice to secure counsel, if the interests of such person are or have

a reasonable possibility of being in conflict with the interests of his client"). Disciplinary

Rule 7-104(A) is itself a successor to a provision in the early ABA Canons of Ethics, ABA

Canon 9 ("A lawyer should not in any way communicate upon the subject of controversy with

a party represented by counsel; much less should he undertake to negotiate or compromise the

matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most

particularly to avoid everything that may tend to mislead a party not represented by counsel,

and he should not undertake to advise him as to the law").

State versions of Rule 4.2 are appended.

The local rules of professional conduct for the various federal district courts, which

generally adopt the ethical rules of the states in which they are located, are appended. For a

general discussion of the no contact controversy see, United States Department of Justice,

Attorney General Reno, Communications with Represented Persons: Supplementary

Information, 59 Fed.Reg. 39,928 (1994); Bowman, A Bludgeon by any Other Name: The

Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9

GEORGETOWN JOURNAL OF LEGAL ETHICS 665 (1996); Cramton & Udell, State Ethics Rules

and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules,

53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992); Federalizing the No contact Rule:

The Authority of the Attorney General, 33 AMERICAN CRIMINAL LAW REVIEW 189 (1995);

Dash, Justice Department Contacts With Represented Persons: An Alarming Assertion of

Power, 65 JUDICATURE 137 (1994); Flowers, A Code of Their Own: Updating the Ethics

Codes to Include the Non-Adversarial Roles of Federal Prosecutors, 37 BOSTON COLLEGE

LAW REVIEW 923 (1996); Green, A Prosecutor's Communication With Defendants: What

Are the Limits? 24 CRIMINAL LAW BULLETIN 283 (1988); Lidge, Government Civil

Investigators and the Ethical Ban on Communicating With Represented Parties, 67 INDIANA

LAW JOURNAL 549 (1992); Is DoJ Above the Rules? The Department's Bid to Exempt

Lawyers From Contact Rules Is Blasted by States' Chief Justices, 84 AMERICAN BAR

ASSOCIATION JOURNAL 26 (November 1997); The Continuing Conflict Over the Application

of Model Rule 4.2 to Federal Attorneys, 44 AMERICAN UNIVERSITY LAW REVIEW 855

(1995).

Hammad involves three opinions, a district court decision, United States v. Hammad, 678

F.Supp. 397 (E.D.N.Y. 1987), and two appellate court decisions, United States v. Hammad,

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New York department store owner, based on the suspicion that he was claiming

Medicaid reimbursement for the sale of orthopedic shoes in instances when he had in

fact sold ordinary shoes. Hammad retained the services of a lawyer in connection

with the matter and the prosecution knew he had done so. The prosecutor armed

Goldstein, one of Hammad's shoe suppliers, with a fictitious grand jury subpoena

purporting to call Goldstein as a witness in the Hammad investigation. Goldstein then

engaged Hammad in incriminating conversations that were surreptitiously tape

recorded and videotaped by a Bureau of Alcohol, Tobacco and Firearms agent. After

Hammad was indicted for Medicaid fraud, mail fraud, and obstruction of justice, he

moved to suppress the tapes based on an asserted violation of the no contact rule

adopted by New York bar authorities.

The resulting district and appellate court opinions brought into focus three of the

four points at which interpretation of the no contact rule might be thought to imperil

existing or emerging law enforcement practices:

- application during an investigation but before the client has been arrested or

charged with the crime under investigation;

- application to not only prosecuting attorneys but also to police, undercover

agents, informants and others working with prosecutors; and

- the sanctions are appropriate when a violation occurs.

Left for another day was the question of the rule's application in the case of

clients who are also potential witnesses/informants.

The district court concluded that under the circumstances at hand the no contact

rule applied even before an arrest or indictment, that the rule applied because

Goldstein, who was not a lawyer, had acted as the prosecutor's "alter ego", and that

suppression of the evidence was an appropriate sanction for violation of the rule,

United States v. Hammad, 678 F.Supp. 397 (E.D.N.Y. 1987).

The court of appeals rejected suppression as an appropriate sanction, but agreed

that the rule might be violated by informants acting as alter egos of the prosecutor

prior to the client's arrest or indictment. In its first, more sweeping statement of

violative pre-indictment conduct, it declared that “[c]learlly, clandestine interrogation

by an Assistant United States Attorney [of a suspect known to have retained counsel

with respect to the matter] would contravene his ethical obligation. On the other

hand, the rule is not implicated when an informant comes forth to report

conversations of which the prosecutor lacked foreknowledge,” United States v.

Hammad, 846 F.2d 854, 860 (2d Cir. 1988). The revised opinion used a softer and

yet less instructive characterization, “the use of informants by government prosecutors

in a preindictment, non-custodial situation, absent the type of misconduct that

occurred in this case, will generally fall within the `authorized by law’ exception to

DR 7-104(A)(1) and therefore will not be subject to sanctions," United States v.

Hammad, 858 F.2d 834, 838 (2d Cir. 1988).

846 F.2d 854 (2d Cir. 1988), revised, 858 F.2d 834 (2d Cir. 1988).

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Hammad is generally compatible with the law in other jurisdictions in its view

that suppression is an inappropriate sanction28 but that a prosecutor's non-lawyer alter

egos may trigger application of the rule.29 Most cases elsewhere both before and

after, however, have held that the rule can only be violated after a client has been

taken into custody, arrested, indicted or otherwise formally charged, i.e., after there

is a specific “matter” with respect to which the client is represented.30

The Department of Justice responded to Hammad with the so-called Thornburgh

memorandum, printed in, In re Doe, 801 F.Supp. 478, 489 (D.N.M. 1992), a

memorandum from Attorney General Thornburgh to all Justice Department litigators

announcing that, “it is the Department's position that contact with a represented

individual in the course of authorized law enforcement activity does not violate DR

7-104. The Department will resist, on Supremacy Clause grounds, local attempts to

curb legitimate federal law enforcement techniques. . . . Accordingly, an attorney

employed by the Department, and any individual acting at the direction of that

United State v. Lowery, 166 F.3d 1119, 1125 (11th Cir. 1999); State v. Baker, 931 S.W.2d

232, 236 (Tenn.Crim.App. 1996); State v. Decker, 138 N.H. 432, 438, 641 A.2d 226, 230

(1994); United States v. Heinz, 983 F.2d 609, 614 (5th Cir. 1993); United States v. Ryans,

903 F.2d 731, 740 (10th Cir. 1990); Suarez v. State, 481 So.2d 1201, 1207 (Fla. 1986); State

v. Morgan, 231 Kan. 472, 479, 646 P.2d 1064, 1070 (1982); People v. Green, 405 Mich.

273, 293-94, 274 N.W.2d 448, 454-55 (1979); but see, Henrich v. State, 666 S.W.2d 185,

(Tex.App. 1983)(rule violation constitutes a violation of state law triggering the general

suppression statute); contra, United States v. Powe, 9 F.3d 68, 69 (9th Cir.

1993)(suppression is a permissible but not required remedy for violation of the rule; United

States. v. DeVillio, 983 F.2d 1185, 1192 (2d Cir. 1993)(same); State v. Miller, 600 N.W.2d

457, 467 (1999).

By the same token, most are of the view that the admission of evidence produced as a

consequence of a no contact rule violation does not justify dismissing charges or overturning

a conviction, United States v. Lopez, 4 F.3d 1455, 1463-464 (9th Cir. 1993); State v. Ford,

793 P.2d 397, 400 (Utah App. 1990); Suarez v. State, 481 So.2d 1201, 1207 (Fla. 1986);

People v. Green, 405 Mich. 273, 293, 274 N.W.2d 448, 454 (1979); United States v.

Thomas, 474 F.2d 110, 112 (10th Cir. 1973)

E.g., State v. Lang, 702 A.2d 135, 137 (Vt. 1997); United States v. Heinz, 983 F.2d 609,

613 (5th Cir. 1993); United States v. Ryans, 903 F.2d 731, 833 (10th Cir. 1990); United

States v. Lemonakis, 485 F.2d 941, 956 (D.C.Cir. 1973)

There is general agreement on a threshold question as well, i.e., the no contact rule is not

limited to cases involving civil litigants, but applies with at least equal force in criminal cases,

United States v. Lopez, 4 F.3d 1455, 1459-460 (9th Cir. 1993); State v. CIBA-GEIGY Corp.,

247 N.J.Super. 314, 317, 589 A.2d 180, 181 (1991); State v. Ford, 793 P.2d 397, 399-400

(Utah App. 1990); Suarez v. State, 481 So.2d 1201, 1205 (Fla. 1985); United States v.

Thomas, 474 F.2d 110, 111 (10th Cir. 1973); United States v. Springer, 460 F.2d 1344,

1354 (7th Cir. 1972).

E.g., United States v. Balter, 91 F.3d 427, 436 (3d Cir,. 1996); State v. Roers, 520

N.W.2d 752, 758-79 (Minn.App. 1994); United States v. Powe, 9 F.3d 68, 69 (9th Cir.

1993); United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993); United States v. Ryans,

903 F.2d 731, 739-40 (10th Cir. 1990); United States v. Sutton, 801 F.2d 1346, 1366

(D.C.Cir. 1986); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983); State v. Irving,

231 Kan. 258, 262, 644 P.2d 389, 394 (1982); United States v. Durham, 475 F.2d 208, 211

(7th Cir. 1973).

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attorney, is authorized to contact or communicate with any individual in the course

of an investigation or prosecution unless the contact or communication is prohibited

by the Constitution, statute, Executive Order, or applicable federal regulation,” id. at

493.31

Lopez & Ferrara: Client Initiated Contacts

The Department's position was not well received in either the Lopez32 or the

Ferrara33 case, both of which grew out of contacts initiated by client/ defendants in

custody, rather than by government authorities during a pre-indictment investigation.

Lopez retained Tarlow to represent him after he and two co-defendants had been

indicted on drug charges. Tarlow, however, indicated that it was his policy not to

engage in plea negotiations and that Lopez should retain another attorney if he were

interested in plea bargaining. After Twitty, the attorney for one his co-defendants,

indicated that the government might consider probation if Lopez and Twitty's client

cooperated, Lopez agreed to meet with the prosecutor to discuss a plea bargain. He

did so without Tarlow's knowledge, fearing that Tarlow might refuse to represent him

at trial if negotiations failed. The prosecutor arranged for Lopez to appear before a

magistrate to be advised of his rights and be warned of the dangers of negotiating with

the government without having counsel present. Lopez met with federal prosecutors

without Tarlow's knowledge, but the plea bargains were never finalized. Tarlow

learned of the negotiations from the attorney for the third defendant. Tarlow

withdrew as attorney for Lopez and Lopez moved to dismiss his indictment based on

the asserted violation of the California no contact rule that had been adopted for the

federal district court by the local rule.

The district court granted the motion to dismiss, United States v. Lopez, 765

F.Supp. 1433 (N.D.Cal. 1991). The Court of Appeals agreed that the prosecutor had

violated the no contact rule, but found that the district court had exceeded its

authority when it dismissed the indictment, United States v. Lopez, 4 F.3d 1455,

1463-464 (9th Cir. 1993).

The court rejected the contentions that since Lopez had initiated the contact, he

had waived the benefits of the no contact rule, and that he was represented by Tarlow

only with respect to any subsequent trial and not with respect to the plea bargain

negotiations. The no contact rule imposes a duty upon attorneys that cannot be

The foundation for the Thornburgh memorandum had been laid several years earlier in an

opinion from the Department's Office of Legal Counsel, Ethical Restraints of the ABA Code

of Professional Responsibility on Federal Criminal Investigations, 4B OP.OFF.LEG.C. 576

(1980).

United States v. Lopez, 765 F.Supp. 1433 (N.D.Cal. 1991), vac'd and remanded, 4 F.3d

1455 (9th Cir. 1993); In re Twitty, 2 Cal.State Bar Ct.Rprt. 664 (1994)(disciplinary

proceedings against defense counsel arising out the Lopez case).

United States v. Ferrara, 847 F.Supp. 964 (D.D.C. 1993), aff'd on jurisdictional grounds,

54 F.3d 825 (D.C.Cir. 1995); In re Doe, 801 F.Supp. 478 (D.N.M. 1992)(related case arising

out the same facts); In re Howes, 123 N.M. 311, 940 P.2d 159 (1997)(disciplinary

proceedings the prosecutor in Ferrara).

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waived by the contacted party, 4 F.3d at 1462, and as a factual matter Lopez was

represented by Tarlow at the time of contact with the prosecutor, 4 F.3d at 1462-463.

The government's argument that the contact come within the rule's "authorized

by law" exception because of the Thornburgh memorandum fared no better. Since

the general statutory authorities cited by the government did not specifically authorize

the contact, they were found insufficient to qualify for the rule's "authorized by law"

exception, 4 F.3d at 1461.34 Nor could the magistrate's approval qualify, since the

lower court found that the magistrate had been materially misled, 4 F.3d at 1461-262.

Like Lopez, the Ferrara case35 grew out of a contact initiated by a client without

his attorney's knowledge. Smith was arrested and charged with murder in the District

of Columbia. The public defender assigned to represent him refused to give

permission to allow the prosecutor to talk to Smith unless Smith were granted

immunity. Smith, nevertheless, frequently contacted and discussed the case with a

detective assigned to it who was acting under the prosecutor's instructions. Smith

even phoned the detective in the prosecutor's office and raised the matter in a

conversation to which the prosecutor was a party. When the public defender learned

of the conversations, she sought to have the resulting evidence suppressed. The court

denied the motion but the matter was referred to the disciplinary authorities of the

New Mexico bar where the prosecutor was admitted. The prosecutor had the case

removed to the district court in New Mexico which remanded it back to state

authorities.36 The Department then sued to enjoin further inquiry by Ferrara, the Chief

Disciplinary Counsel for the New Mexico Supreme Court's Disciplinary Board. The

The government claimed authority under 28 U.S.C. 509 (vesting the functions of

Department of Justice officers, employees and agencies in the Attorney General), 515

(authorizing Department of Justice officials to represent the United States in legal

proceedings, 516 (reserving authority to conduct litigation on behalf of the United States to

the Department of Justice), 533 (authorizing the Attorney General to appoint officials to

conduct the business of the Department of Justice), and 547 (empowering United States

Attorneys within their districts to prosecute, defend, and appear on behalf of the United

States).

The government did not cite the Thornburgh Memorandum as authorization: "The

government, on appeal, has prudently dropped its dependence on the Thornburgh

Memorandum in justifying AUSA Lyons' conduct, and has thereby spared us the need of

reiterating the district court's trenchant analysis of the inefficacy of the Attorney General's

policy statement," 4 F.2d at 1458.

In re Doe, 801 F.Supp. 478 (D.N.M. 1992); United States v. Ferrara, 847 F.Supp. 964

(D.D.C. 1993), aff'd on jurisdictional grounds, 54 F.3d 825 (D.C.Cir. 1995); In re Howes,

123 N.M. 311, 940 P.2d 159 (1997)(disciplinary proceedings with an extensive statement of

facts).

In doing so the court rejected the interpretation of an earlier court, Kolibash v. Committee

on Legal Ethics, 872 F.2d 571 (4th Cir. 1989), which had concluded that state disciplinary

proceedings were removable to federal court under 28 U.S.C. 1442, In re Doe, 801 F.Supp.

at 481-84. Like Lopez, the court was unpersuaded by the arguments that the Department of

Justice's general statutory authority or the Thornburgh memorandum either preempted state

no contact rules or constituted qualified for the "authorized by law" exception to the no

contact rule, 801 F.Supp. at 484-87. It found the claim of prosecutorial immunity equally

uncompelling, 801 F.Supp. at 487-89.

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effort failed for want of personal jurisdiction over Ferrara in the District of Columbia

where the suit was brought.37 The New Mexico Supreme Court subsequently found

that the prosecutor had violated the no contact rule, publicly censured him, and

ordered him to pay $8,663.52 as reimbursement for the cost of the disciplinary

proceeding.38

O'Keefe: No Contact & Corporate Civil Enforcement

O'Keefe features the no contact rule in a corporate, civil law enforcement

context.39 It originated as a qui tam action brought against a government contractor

for overcharging.40 Following initial discovery, the contractor sought a protective

order requiring the government to refrain from contacting the company's employees

in violation of the no contact rule. The district court granted the order, denying that

contacts authorized by federal regulation then in effect (28 C.F.R. Pt. 77 (1995))

came within the “authorized by law” exception to the no contacts rule.41 The court of

appeals agreed and added that the regulations exceed the Attorney General's

authority.42

Justice Department Regulations After the Amendment

The Justice Department promulgated revised regulations after the effective date

of the Amendment, 28 C.F.R. Pt. 77 (appended), which eliminate the explicit rejection

of state no contact rules found in their predecessors. The new regulations, however,

appear to require adherence to local no contact rules (and other local state ethical

standards) only following a formal judicial appearance or when the government

Although the appellate court decision was limited to the jurisdictional question, United

States v. Ferrara, 54 F.3d 825 (D.C.Cir. 1995), the district court in Ferrara, jointed Lopez

and Doe in rejection of the Supremacy argument, United States v. Ferrara, 847 F.Supp. at

958-70.

The Supremacy and "authorized by law" arguments proved unavailing here too, In re

Howes, 123 N.M. 311, 318-21, 940 P.2d 159, 166-69 (1997). The severity of the sanctions

was driven by the prosecutor's substantial legal experience (i.e., the violation could not be

blamed on either ignorance or incompetence), and by his refusal to "accept or even recognize

the wrongful nature of his conduct," 123 N.M. at 322, 940 P.2d at 170.

The district court in Lopez declined to refer the matter to bar authorities, but Tarlow

complained of the prosecutor's conduct to authorities in Arizona where the prosecutor was

admitted, 765 F.Supp. at 1462; In re Twitty, 2 Cal.State Bar.Ct.Rprt. 664, 672 (1994). There

does not appear to have been any reported action on the complaint.

United States ex rel. O'Keefe v. McDonnell Douglas Corp., 961 F.Supp. 1288 (E.D.Mo.

1997), aff'd, 132 F.2d 1252 (8th Cir. 1998).

United States ex rel. O'Keefe, 918 F.Supp. 1347 (E.D.Mo. 1996).

961 F.Supp. at 1293-296. The regulations in question, the so-call Reno regulations, are

a revised form of the Thornburgh Memorandum, promulgated by Attorney General Reno, 59

Fed.Reg. 39928 (Aug. 4,1994).

132 F.3d at 1254-257.

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attorney is locally licensed. The regulations repeat the command of the Amendment

that government attorneys must follow the local rules “where such attorney engages

in that attorney’s duties,” but only as the phrase is defined in section 77.2 of the

regulation, 28 C.F.R. §77.3. “The phrase where such attorney engages in that

attorney’s duties identifies which rules of ethical conduct a Department attorney

should comply with, and means . . . (i) if there is a case pending, the rules of ethical

conduct adopted by the local federal court or state court before which the case is

pending; or (ii) if there is no case pending, the rules of ethical conduct that would be

applied by the attorney’s state of licensure,” 28 C.F.R. §77.2(j). Although the phrase

“case pending” is not defined, the term “case” is: “The term case means any

proceeding over which a state or federal court has jurisdiction, including criminal

prosecutions and civil actions. This term also includes grand jury investigations and

related proceedings (such as motions to quash grand jury subpoenas and motions to

compel testimony), applications for search warrants, and applications for electronic

surveillance,” 28 C.F.R. §77.2.

This may be insufficient in a state which applies its no contact rule prior to the

initiation of formal judicial proceedings, cf., State v. Miller, 600 N.W.2d 457, 467

(Minn. 1999) (“Thus we do not perceive that the application of MRPC 4.2

[Minnesota’s no contact rule] should be limited, in a criminal context, to contacts with

an attorney Adverse counsel’s contacts with an attorney’s client can be disruptive and

deleterious to the attorney’s’s relationship with a client irrespective of whether the

client has been charged with a crime, and the need for the an attorney’s counsel in an

adverse interview is certainly no less before the client is charged than after”).’s client

after the client has been charged.

Ethics and the Grand Jury

One criticism of the Amendment is that it fails to overturn Hammad, Lopez,

Ferrara, and O'Keefe. A second area of Department of Justice concern is the impact

of ethical standards upon federal grand jury practice, i.e., requiring prosecutors to

disclose exculpatory evidence to the grand jury and limiting the circumstances under

which a prosecutor may subpoena defense attorneys to appear before the grand jury.43

It is an area where the ethical precepts are more recently developed, where some

courts have been more receptive to the Department's arguments, and where internal

Department guidelines seem to have been effective.

See generally, Bowman, A Bludgeon by any Other Name: The Misuse of "Ethical Rules"

Against Prosecutors to Control the Law of the State, 9 GEORGETOWN JOURNAL OF LEGAL

ETHICS 665 (1996) Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas

of Attorneys, 76 MINNESOTA LAW REVIEW 917 (1992); Cramton & Udell, State Ethics Rules

and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules,

53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992).

CRS-20

Attorney Subpoenas

Rule 3.8(f) of the American Bar Association's Model Rules of Professional

Conduct declares that:

The prosecutor in a criminal case shall . . . (f) not subpoena a lawyer in a

grand jury or other criminal proceeding to present evidence about a past or

present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any

applicable privilege;

(2) the evidence sought is essential to the successful completion of an

ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information.

The standard is of relatively recent origin and has been adopted by only a few

jurisdictions.44 Its application, or the application of an earlier version which required

judicial approval for such subpoenas, has been found contrary to federal law by some

courts. The rule is a product of complaints of grand jury abuse by federal prosecutors

that appear to have been addressed by internal Justice Department regulation.45

It first appeared as a Massachusetts rule binding on members of the state bar46

and adopted by the federal district court under local rule.47 It was challenged

The States of Alaska, Colorado, Louisiana, Massachusetts, North Carolina, Oklahoma,

Pennsylvania, Rhode Island, Tennessee, and Virginia have such provisions (text appended),

that have been adopted along with the other state rules by the district courts in Alaska,

Colorado, Louisiana, Massachusetts, North Carolina, Oklahoma, Rhode Island. In addition,

the provisions of the American Bar Association Code of Professional Conduct have been

adopted by the federal district courts in Delaware, Georgia, Montana and West Virginia and

for the Northern District of New York, the Western District of North Carolina, and the Middle

and Southern Districts of Alabama (text of federal adoption rules are appended).

The United States Attorneys' Manual advises federal prosecutors that the head of the

Justice Department's Criminal Division must approve attorney subpoenas issued to secure

client information and informs them that approval will be based on considerations comparable

to those in the ABA rules. In considering a request to approve the issuance of a subpoena to

an attorney for information relating to the representation of a client, the Assistant Attorney

General of the Criminal Division applies the following principles: The information sought

shall not be protected by a valid claim of privilege. All reasonable attempts to obtain the

information from alternative sources shall have proved to be unsuccessful. In a criminal

investigation or prosecution, there must be reasonable grounds to believe a crime has been or

is being committed, and that the information sought is reasonably needed for the successful

completion of the information or prosecution. . . ." UNITED STATES ATTORNEYS' MANUAL §913.410 (1997)(a version of the text of §9-13.410 and the accompanying CRIMINAL RESOURCE

MANUAL section is appended.

Mass.S.Jud.Ct.R., R. 3:08, PF15 ("It is unprofessional conduct for a prosecutor to

subpoena an attorney to a grand jury without prior judicial approval in circumstances where

the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person

who is represented by the attorney/witness").

D.Mass.Local.R., R.5(d)(4)(B).

CRS-21

immediately, and at first unsuccessfully, as contrary to the Supremacy Clause and the

Federal Rules of Criminal Procedure, and as beyond the supervisory power of the

district court.48 When the Pennsylvania Supreme Court adopted the rule,49 however,

the Third Circuit found the Justice Department arguments more persuasive.50

The Circuits remain divided on the issue in spite of passage of the Amendment.

The Tenth Circuit has concluded that the Amendment obviates any Supremacy Clause

problem and confirms that the rule is within the rule-making powers of the state and

lower federal courts.51 The First Circuit believes first that the Amendment does not

introduce state ethical rules into federal grand jury practice or any other area of

federal activity because it does not constitute a clear, specific congressional mandate

and that the rule exceeds the rule-making powers the state and lower federal courts.52

Although the Justice Department regulations declare that the Amendment

“should not be construed in any way to alter federal substantive, procedural, or

evidentiary law,” 28 C.F.R. §77.1(b), and that the phrase “state laws and rules and

local federal court rules governing attorneys” describing the Amendment’s reach

“does not include: (1) any . . . rule . . . which does not govern ethical conduct, such

as rules of procedure, evidence, or substantive law, whether or not such rule is

included in a code of professional responsibility for attorneys,” 28 C.F.R. §77.2(h)(1).

Exculpatory Evidence

The Constitution requires the government in a criminal case to supply the

accused with any evidence in its possession material to his guilt, the credibility of

witnesses against him, or to the appropriate sentence to be imposed.53 There is no

United States v. Klubock, 639 F.Supp. 117 (D.Mass. 1986), aff'd 832 F.2d 649 (1st Cir.

1987), aff'd en banc by an equally divided court, 832 F.2d 664 (1st Cir. 1987); Whitehouse

v. United States District Court, 53 F.3d 1349 (1st Cir. 1995); but see, Stern v. United States

District Court, 214 F.3d 4 (1st Cir. 2000)(petition for rehearing en banc denied by equally

divided court).

Pa.R.Prof.Conduct, R. 3.10; the rule became applicable in the federal district courts in

Pennsylvania by virtue of their general adoption of the Pennsylvania state bar rules,

E.D.Pa.Civ.R., R.14; M.D.Pa.R., R.304; W.D.Pa.R., R.22.

Baylson v. Disciplinary Board, 975 F.2d 102 (3d Cir. 1992), aff'g, 764 F.Supp. 328

(E.D.Pa. 1991).

United States v. Colorado Supreme Court, 189 F.3d 1281, 1286-288 (10th Cir. 1999).

United States v. United States District Court, 214 F.3d 4, 19-21 (1st Cir. 2000)(petition

for rehearing en banc denied by an equally divided court). The rules before the Tenth and

First Circuits differed in that the rule in the First Circuit assigned the task of finding the three

threshold circumstances required for an attorney-client subpoena to the court while the rule

in the Tenth Circuit assigned it to the prosecutor. The First Circuit found the difference

critical when distinguishing its opinion from that of an earlier First Circuit panel in

Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir. 1995), and from the

opinion of the Tenth Circuit, Stern v. United States District Court, 214 F.3d at 16-7, 21.

Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972).

CRS-22

constitutional requirement, however, that the government disclose such exculpatory

evidence to the grand jury that indicts the accused.54 The states are divided as to

whether prosecutors have an ethical obligation to disclose exculpatory evidence to the

grand jury.

The ethics of the legal profession have long demanded that attorneys address the

courts candidly.55 In this vein, Rule 3.3(d) of the ABA Model Rules of Professional

Conduct notes that, “In an ex parte proceeding, a lawyer shall inform the tribunal of

all material facts known to the lawyer which will enable the tribunal to make an

informed decision, whether or not the facts are adverse.” In its comments upon the

special duties of public prosecutors under Rule 3.8, the ABA makes it clear that the

obligations of Rule 3.3(d) include the responsibility of prosecutors to disclose

exculpatory evidence to the grand jury:

A prosecutor has the responsibility of a minister of justice and not simply

that of an advocate. This responsibility carries with it specific obligations to see

that the defendant is accorded procedural justice and that guilt is decided upon

the basis of sufficient evidence. Precisely how far the prosecutor is required to

go in this direction is a matter of debate and varies in different jurisdictions.

Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating

to Prosecution Function, which in turn are the product of prolonged and careful

deliberation by lawyers experienced in both criminal prosecution and defense.

See also Rule 3.3(d) governing ex parte proceedings, among which grand jury

proceedings are included. Applicable law may require other measures by the

prosecutor and knowing disregard of those obligations or a systematic abuse of

prosecutorial discretion could constitute a violation of Rule 8.4 [i.e.,

professional misconduct]. ABA Model Code of Professional Conduct, R.3.8,

Comment [1] (emphasis added).

A majority of the states have adopted both Rule 3.3(d) and the comments under

Rule 3.8.56 Some have implicitly repudiated the notion that prosecutors have an

United States v. Williams, 504 U.S. 36 (1992).

ABA Canons of Ethics 22 ("The conduct of the lawyer before the Court and with other

lawyers should be characterized by candor and fairness. . .") (1908); ABA Code of

Professional Responsibility DR7-106(B)(1)("In presenting a matter to a tribunal, a lawyer

shall disclose: (1) Legal authority in the controlling jurisdiction known to him to be directly

adverse to the position of his client and which is not disclosed by opposing counsel").

Alaska R. of Prof.Conduct, R.3.3(d), R.3.8, Comment; Ariz.R. of Prof.Conduct, ER

3.3(d), R.3.8, Comment; Ark.R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Conn.R. of

Prof.Conduct, R.3.3(d), R.3.8, Comment; Del.R. of Prof.Conduct, R.3.3(d), R.3.8, Comment;

Fla.R. of Prof.Conduct, R. 4-3.3, R. 4-3.8, Comment; Haw. R. of Prof.Conduct, R. 3.3(d),

R.3.8, Comment; Ind.R. of Prof.Conduct, R.3.3(d), R.3.8, Comment; Kan.S.Ct.R., R. 226,

Model R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Ky.S.Ct.R., R. of Prof. Conduct,

R.3.3(d), R.3.8, Comment; Md.Lawyers' R. of Prof. Conduct, R. 3.3(d), R.3.8, Comment;

Mich.R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Miss.R. of Prof. Conduct, R.3.3(d),

R.3.8, Comment; Mo.St.Ct.R., R.4-3.3(d), R.3.8, Comment; N.H.R.Prof.Conduct, R.3.3(d),

R.3.8, Comment; N.Mex.R.Prof.Conduct, R. 16-303D, R.16-308, Comment;

N.D.R.Prof.Conduct, R.3.3(f), R.3.8, Comment; Okla.R.Prof.Conduct, R.3.3(d), R.3.8,

CRS-23

obligation to disclose exculpatory evidence to the grand jury by deleting the reference

to 3.3(d)(italicized above) from the comment on the special duties of a public

prosecutor under Rule 3.8.57 Some have opted to adopt the Rules but not the

Comments.58 Others continue to use the formulation of the earlier ABA Code of

Professional Responsibility under which the issue does not arise.59 The pattern among

the federal courts is similarly diverse, since the vast majority have chosen to impose

standards compatible with those of the states in which they sit.

The United States Attorneys' Manual calls for disclosure in an apparently more

limited number of instances and alerts its prosecutors to the possible disciplinary

consequences within the Justice Department of a failure to comply:

In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court

held that the Federal courts' supervisory powers over the grand jury did not

include the power to make a rule allowing the dismissal of an otherwise valid

indictment where the prosecutor failed to introduce substantial exculpatory

evidence to a grand jury. It is the policy of the Department of Justice, however,

that when a prosecutor conducting a grand jury inquiry is personally aware of

substantial evidence that directly negates the guilt of a subject of the

investigation, the prosecutor must present or otherwise disclose such evidence

to the grand jury before seeking an indictment against such a person. While a

failure to follow the Department's policy should not result in dismissal of an

indictment, appellate courts may refer violations of the policy to the Office of

Professional Responsibility for review. UNITED STATES ATTORNEYS' MANUAL,

§9-11.233.

Comment; Pa.R.Prof.Conduct, R.3.3(d), R.3.8, Comment; R.I.R.Prof.Conduct, R.3.3(d),

R.3.8, Comment; S.C.App.Ct.R., R.407: R.3.3, R 3.8 Comment; Tex.State Bar R., Art.10,

§9: Tex.Code of Prof.Conduct, R.3.03(d), R.3.09, Comment; Utah R.Prof.Conduct, R.3.3(d),

R.3.8, Comment; Vt.R.Prof.Conduct, R.3.3(d), R.3.8, Comment; W.Va.R.Prof. Conduct,

R.3.3(d), R.3.8, Comment; Wis.S.Ct.R., R.20:3.3(d), R.20:3.8, Comment; Wyo.R. of

Prof.Conduct, R.3.3(d), R.3.8, Comment. See also, D.C.R. of Prof.Conduct, R.3.8: "The

prosecutor in a criminal case shall not . . . (g) In presenting a case to a grand jury,

intentionally interfere with the independence of the grand jury, preempt a function of the grand

jury, abuse the processes of the grand jury, or fail to bring to the attention of the grand jury

material facts tending substantially to negate the existence of probable cause."

Ala.R. of Prof.Conduct, R. 3.3, 3.8 Comment; Colo.R. of Prof.Conduct, R. 3.3, R.3.8

Comment; Mass.R. of Prof.Conduct, R. 3.3,.R. 3.8 Comment; Minn.R. of Prof.Conduct, R.

3.3, 3.8 Comment; Nev.S.Ct.R., RR.172, 179; N.J.Rules of Prof.Conduct, RPC 3.3, 3.8

Comment; N.C.R.Prof.Conduct R.3.3, R. 3.8 Comment; S.D.R. of Prof.Conduct, R. 3.3, 3.8

Comment; R. of S.Ct. of Va., Pt.6, §II, RR.R. 3.3, 3.8 Comment.

Idaho R. of Prof. Conduct, R. 3.3, R. 3.8; Ill.R. of Prof.Conduct, R.3.3, R.3.8; La.R. of

Prof. Conduct, R.3.3, R.3.8; Me.Code of Prof. Responsibility, R.3.3, R.3.8;

Mont.R.Prof.Conduct, R.3.3, R.3.8; Wash.R.Prof.Conduct, R.3.3, R.3.8.

Ga. Code of Prof.Responsibility; Iowa Code of Prof. Responsibility; Neb. Code of

Prof.Responsibility; N.Y. R. of Ct. §1200.35; Ohio Code of Prof. Responsibility; Ore. Code

of Prof.Responsibility; Tenn.S.Ct.R., R.8.

CRS-24

Prosecutors and Undercover Tactics

Rule 4.1(a) of the ABA Model Rules of Professional Conduct declares that “[i]n

the course of representing a client a lawyer shall not knowingly: (a) make a false

statement of material fact or law to a third person;” and Rule 8.4(c) that it “is

professional misconduct for a lawyer to . . . (c) engage in conduct involving

dishonesty, fraud, deceit or misrepresentation.” Its predecessors, Disciplinary Rules

DR7-102(A)(5) and DR1-102(A)(4) of the ABA Model Code of Professional

Responsibility are similarly worded. In one form or another, they are in effect in

virtually every jurisdiction.60

The Oregon Supreme Court has concluded that its versions of these two honesty

disciplinary rules apply to instances where private attorneys misidentify themselves

and make other false statements in the course of an undercover investigation of

possible fraud committed against a client, In re Gatti, 330 Ore. 517, 8 P.3d 966

(2000). Gatti had claimed the benefit of an “investigation exception” to the

prohibitions. The Oregon Attorney General and the United States Attorney for

Oregon argued the Court should recognize an exception for government undercover

Ala.R.Prof.Conduct, RR. 4.1(a), 6.4(c); AlaskaR.Prof.Conduct, RR.4.1(a), 8.4(c); Ariz.R

Prof.Conduct, ERR 4.1(a), 8.4(c); Ark.R.Prof.Conduct, RR. 4.1(a), 8.4(c); Colo.R. Prof.

Conduct, RR. 4.13(a), 8.4(c); Conn.R.Prof.Conduct, RR.4.1(a), 8.4(3); Del.R.Prof. Conduct,

RR.4.1(a), 8.4(c); D.C.R.Prof.Conduct, RR.4.3(a), 8.4(c); Fla.R. Prof.Conduct, RR. 44.1(a), 4-8.4(c); Ga. Code of Prof.Responsibility, DR7-102(A)(5), DR1-102(A)(4); Haw.

R. Prof. Conduct, RR. 4.1(a), 8.4(c); IdahoR.Prof.Conduct, RR. 4.1,(a), 8.4(c); Ill.R.

Prof.Conduct, RR.4.1(a), 8.4(c); Ind.R.Prof. Conduct, RR.4.1(a), 8.4(c); Iowa Code of Prof.

Responsibility, DR 7-102(A)(5), DR1-102(A)(4); Kan.S.Ct.R., R. 226, Model R. of

Prof.Conduct, RR. 4.1(a), 8.4(c); Ky.S.Ct. R.3.130, R. of Prof. Conduct, RR.4.1, 8.3(c);

La.R. Prof. Conduct, RR.4.1, 8.4(c); Me.Code of Prof. Responsibility, RR.3.7(b), 3.2(f)(3);

Md.Lawyers' R.Prof. Conduct, R. 4.1(a)(1), 8.4(c); Mass.R. Prof. Conduct, RR. 4.1(a),

8.4(c); Mich.R. Prof. Conduct, RR. 4.1, 8.4(c); Minn.R. Prof.Conduct, RR. 4.1, 8.4(c);

Miss.R. Prof. Conduct, R4.1(a); Mo.R. Prof. Conduct, RR.4-4.1(a), 4-8.4(c); Mont.R.

Prof.Conduct, R.4.1(a), 8.4(c); Neb. Code of Prof.Responsibility, DR 7-102(A)(5), DR1102(A)(4); Nev.S.Ct.R., RR.181, 203; N.H.R.Prof. Conduct, RR.4.1(a), 8.4(c);N.J.Rules of

Prof. Conduct, RRPC 4.1(a)(1), 8.4(c); N.Mex.R. Prof.Conduct, RR.16-401, 16-804[C];

N.Y. R. of Ct. §§1200.33[DR7-102](a)(5), 1200.3[DR1-102](a)(4); N.C.R.Prof.Conduct

RR.4.1, 8.4(c); N.D.R.Prof.Conduct, R. 4.1;Ohio Code of Prof. Responsibility, DR7102(A)(5), DR1-102(A)(4); Okla.R.Prof.Conduct, RR.4.1(a), 8.4(c); Ore.Code of Prof.

Responsibility, DR7-102(A)(5), DR1-102(A)(3); Pa.R.Prof.Conduct, RR.4.1(a), 8.4(c);

R.I.R.Prof.Conduct, RR.4.1(a), 8.4(c); S.C.App.Ct.R., R.407: RR.4.1(a), 8.4(c);

S.D.Cod.Laws 16-18App., R. Prof.Conduct, RR.4.1, 8.4(d); Tenn.S.Ct.R., R.8:DR7102(A)(5), DR1-102(A)(5); Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct,

RR.4.01, 8.04(a)(3); Utah R.Prof. Conduct, RR.4.1(a), 8.4(c); Vt. R.Prof. Conduct, RR4.1,

8.4(c); R. of S.Ct. of Va., Pt.6, §II, RR.4.1(a), 8.4(c); Wash.R.Prof. Conduct, RR.4.1(a),

8.4(c); W.Va.R.Prof.Conduct, RR.4.1(a), 8.4(c); Wis.S.Ct.R., RR.20: 4.1(a), 20:8.4(c);

Wyo.R. of Prof. Conduct, RR.4.1(a), 8.4(c).

CRS-25

operations. The Court refused to recognize either exception, 330 Ore. at 530-33, 8

P.3d at 974-76. There are few comparable decisions elsewhere.61

Who Should Regulate the Ethics of Federal Prosecutors

Questions of undercover investigations, grand jury practice, and client contact

aside, the fundamental objection to the McDade-Murtha Amendment is its

preservation of the twin notions that federal prosecutors, like other lawyers, should

be bound by state regulation of the practice of law and that the rules governing the

practice of law in the federal courts should mirror the rules of the states in which they

sit, subject to modification by the federal courts in a particular district. It is a theme

that runs throughout federal law: compatibility versus uniformity. Should federal law

be the same nation wide or should attorneys in any given state be subject to different

ethical standards depending upon whether federal or state law governs a particular

case.

The alternatives for future Congressional action include provisions that: (1)

regulate the practice of law generally (an option with obvious constitutional

limitations), (2) regulate the ethical standards of federal attorneys, (3) delegate the

authority either to regulate the practice of law or to regulate the practice of law by

federal attorneys to (a) the states, (b) the federal courts, (c) the Attorney General, or

(d) some administrative rule making body like the Judicial Conference, or (4) address

no contact rule, grand jury practice, undercover questions individually.62

Gatti cites conflicting federal authority for whether private attorneys enjoy an investigation

exception, 330 Ore. at 531, 8 P.3d at 975, citing, “Apple Corps Ltd. v. International

Collectors Soc., 15 F.Supp.2d 456, 475 (D.N.J. 1998)(lawyers in private practice may use

an undercover investigator to detect ongoing violations rather of the law * * *, especially

where it would be difficult to discover the violations by other means). But see Sequa Corp.

v. Lititech Inc., 807 F.Supp. 653, 663 (D.Colo. 1992)(lawyers in private practice may not use

deception to investigate disciplinary violations rather than reporting conduct to authorities).”

In a related matter, the jurisdictions to consider the question generally recognize a law

enforcement exception for otherwise lawful wiretapping and electronic surveillance, see,

Wiretapping, Tape Recorders & Legal Ethics: Questions Posed by Attorney Involvement in

Secretly Recording Conversation, CRS REP. NO. 98-280 (Mar. 6, 1998).

The relative strengths and weaknesses of these alternatives are beyond the scope of this

report, see generally, Uniform Federal Rules of Attorney Conduct: A Flawed Proposal, 111

HARVARD LAW REVIEW 2063 (1998); A Call for a Uniform Standard of Professional

Responsibility in the Federal Court System: Is Regulation of Recalcitrant Attorneys at the

District Level Effective? 66 UNIVERSITY OF CINCINNATI LAW REVIEW 901 (1998); Green,

Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How

Should The Rules Be Created? 64 GEORGE WASHINGTON LAW REVIEW 460 (1996); Little,

Who Should Regulate the Ethics of Federal Prosecutors? 65 FORDHAM LAW REVIEW 355

(1996); Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who

Should Regulate the Regulators? Response to Little, 65 FORDHAM LAW REVIEW 429 (1996);

Developments in the Law — Lawyers' Responsibilities and Lawyers' Responses, 107

HARVARD LAW REVIEW 1547 (1994); Wilkins, Who Should Regulate Lawyers? 105

HARVARD LAW REVIEW 799 (1992); Abel, Why Does the ABA Promulgate Ethical Rules?,

59 TEXAS LAW REVIEW 639 (1981); AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW:

CRS-26

Appendices

Bibliography

Books & Articles

Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TEXAS LAW REVIEW 639 (1981)

AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW: THE LAW GOVERNING LAWYERS

(Council Draft No. 12)(1996)

Bowman, A Bludgeon by any Other Name: The Misuse of "Ethical Rules" Against

Prosecutors to Control the Law of the State, 9 GEORGETOWN JOURNAL OF LEGAL ETHICS

665 (1996)

Burke, Reconciling Professional Ethics and Prosecutorial Power: The No contact Rule

Debate, 46 STANFORD LAW REVIEW 1635 (1994)

Cramton & Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the

Anti-Contact and Subpoena Rules, 53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992)

Delonis & Leibson, State Codes of Ethics and the Federal Lawyer: Refighting the Civil War,

48 FEDERAL LAWYER 23 (2001)

Dash, Justice Department Contacts With Represented Persons: An Alarming Assertion of

Power, 65 JUDICATURE 137 (1994)

Flowers, A Code of Their Own: Updating the Ethics Codes to Include the Non-Adversarial

Roles of Federal Prosecutors, 37 BOSTON COLLEGE LAW REVIEW 923 (1996)

Gleeson, Supervising Criminal Investigations: The Proper Scope of the Supervisory Power

of Federal Judges, 64 JOURNAL OF LAW AND POLICY 423 (1997)

Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little

Enforcement?, 64 ST. THOMAS LAW REVIEW 69 (1995)

, A Prosecutor's Communication With Defendants: What Are the Limits? 24 CRIMINAL

LAW BULLETIN 283 (1988)

, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and

How Should the Rules Be Created, 64 GEORGE WASHINGTON LAW REVIEW 460 (1996)

Lidge, Government Civil Investigators and the Ethical Ban on Communicating With

Represented Parties, 67 INDIANA LAW JOURNAL 549 (1992)

Little, Who Should Regulate the Ethics of Federal Prosecutors, 65 FORDHAM LAW REVIEW

355 (1996)

THE LAW GOVERNING LAWYERS (Council Draft No. 12)(1996).

Legislative proposals in the 107th Congress are discussed in a separate report entitled

McDade-Murtha Amendment: Legislation in the 107th Congress Concerning Ethical

Standards for Justice Department Litigators, CRS REP. NO. RL (Dec. 18, 2001).

CRS-27

Mashburn, A Clockwork Orange Approach to Legal Ethics: A Conflicts Prospective on the

Regulation of Lawyers by Federal Courts, 8 GEORGETOWN JOURNAL OF LEGAL ETHICS 473

(1995)

Morton, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal,

or Discipline, 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083 (1995)

Thornburgh, Ethics and the Attorney General: The Attorney General Responds, 74

JUDICATURE 290 (1994)

United States Congress, Ethical Standards for Federal Prosecutors Act of 1996: Hearings

Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the

Judiciary, 104th Cong., 2d Sess. (1996)

, Exercise of Federal Prosecutorial Authority in a Changing Legal Environment:

Hearing Before the Government Information, Justice and Agriculture Subcomm. of the

House Comm. on Government Operations, 101st Cong., 2d Sess. (1990)

United States Department of Justice, Attorney General Reno, Communications with

Represented Persons: Supplementary Information, 59 Fed.Reg. 39,928 (1994)

, Attorney General Thornburgh, Memorandum to All Justice Department Litigators . . .

[In re] Communication with Persons Represented by Counsel (June 8, 1989), appended to,

In re Doe, 801 F.Supp. 478, 489-93 (D.N.M. 1992)

, Office of Legal Counsel, Ethical Restraints of the ABA Code of Professional

Responsibility on Federal Criminal Investigations, 4B OPINIONS OF THE OFFICE OF LEGAL

COUNSEL 576 (1980)

, UNITED STATES ATTORNEYS MANUAL

, CRIMINAL RESOURCE MANUAL

Wilkins, Who Should Regulate Lawyers? 105 HARVARD LAW REVIEW 799 (1992)

Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys, 76

MINNESOTA LAW REVIEW 917 (1992)

, Federalizing Legal Ethics, 73 TEXAS LAW REVIEW 335 (1994)

, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice, 44

VANDERBILT LAW REVIEW 45 (1991)

, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who Should Regulate

the Regulators? Response to Little, 65 FORDHAM LAW REVIEW 429 (1996)

Zacharias & Green, The Uniqueness of Federal Prosecutors, 88GEORGETOWN LAW

JOURNAL 207 (2000)

Notes & Comments

The Big Chill: Negative Effects of the McDade Amendment and the Conflict Between

Federal Statutes, 14 GEORGETOWN JOURNAL OF LEGAL ETHICS 707 (2001)

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A Call for a Uniform Standard of Professional Responsibility in the Federal Court System:

Is Regulation of Recalcitrant Attorneys at the District Level Effective? 66 UNIVERSITY OF

CINCINNATI LAW REVIEW 901 (1998)

The Continuing Conflict Over the Application of Model Rule 4.2 to Federal Attorneys, 44

AMERICAN UNIVERSITY LAW REVIEW 855 (1995)

Developments in the Law — Lawyers' Responsibilities and Lawyers' Responses, 107

HARVARD LAW REVIEW 1547 (1994)

FBA Questions Measure Targeting Federal Prosecutors, 45 FEDERAL LAWYER 5 (1998)

Federal Prosecutor, State Ethics Regulations, and the McDade Amendment, 113 HARVARD

LAW REVIEW 2080 (2000)

The Federal Prosecutors Ethics Act: Solution or Revolution, 86 IOWA LAW REVIEW 1251

(2001)

Federalizing the No contact Rule: The Authority of the Attorney General, 33 AMERICAN

CRIMINAL LAW REVIEW 189 (1995)

Is DoJ Above the Rules? The Department's Bid to Exempt Lawyers From Contact Rules Is

Blasted by States' Chief Justices, 84 AMERICAN BAR ASSOCIATION JOURNAL 26 (November

1997)

Lawyers Ethics—One Size Fits All? A Judicial Conference Committee Proposes Standard

Rules for Federal Courts, 84 AMERICAN BAR ASSOCIATION JOURNAL 28 (July 1998)

Limiting the Prosecutor's Use of Informants: The Second Circuit's Misreading of DR 7104(A)(1), 67 WASHINGTON UNIVERSITY LAW QUARTERLY 613 (1989)

Prosecutorial Ethics Under the Reno Rule: Authorized by Law?, 14 CRIMINAL JUSTICE

ETHICS 17 (1995)

Reconciling Professional Ethics and Prosecutorial Power: The No contact Rule Debate, 46

STANFORD LAW REVIEW 1635 (1994)

Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or

Discipline, 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083 (1994)

Uniform Federal Rules of Attorney Conduct: A Flawed Proposal, 111 HARVARD LAW

REVIEW 2063 (1998)

Who Has the Last Word? An Examination of the Authority of State Grievance Committees

to Investigate and Discipline Prosecutors for Breach of Ethics, 22 JOURNAL OF THE LEGAL

PROFESSION 201 (1998)

Wisdom Without Power: The Department of Justice's Attempt to Exempt Federal

Prosecutors from State No contact Rules, 71 NEW YORK UNIVERSITY LAW REVIEW 1067

(1996)

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State Standards of Professional Conduct

The No Contact Rule

Alabama: Ala.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Alaska: Alaska R. of Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party or person the lawyer knows

to be represented by another lawyer in the matter, unless the lawyer has the consent of the

other lawyer or is authorized by law to do so.

Arizona: Ariz.R. of Prof.Conduct, ER 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Arkansas: Ark.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

California: Cal.R. of Prof.Conduct, R. 2-100: (A) While representing a client, a member shall

not communicate directly or indirectly about the subject of the representation with a party the

member knows to be represented by another lawyer in the matter, unless the lawyer has the

consent of the other lawyer.

(B) For purposes of this rule, a "party": includes: (1) An officer, director, or managing

agent of a corporation or association, and a partner or managing agent of a partnership; or (2)

An association member or an employee of an association, corporation, or partnership, if the

subject of the communication is any act or omission of such person in connection with the

matter which may be binding upon or imputed to the organization for purposes of civil or

criminal liability or whose statement may constitute an admission on the part of the

organization.

committee, or body; (2) Communications initiated by a party seeking advice or representation

from an independent lawyer of the party's choice; or (3) Communications otherwise authorized

by law.

Colorado: Colo.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Connecticut: Conn.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Delaware: Del.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

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District of Columbia: D.C.R. of Prof.Conduct, R.4.2: (a) During the course of representing

a client, a lawyer shall not communicate or cause another to communicate about the subject

of the representation with a party known to be represented by another lawyer in the matter,

unless the lawyer has the consent of the lawyer representing the other party or is authorized

by law to do so.

(b) During the course of representing a client, a lawyer may communicate about the

subject of the representation with a nonparty employee of the opposing party without

obtaining the consent of that party's lawyer. However, prior to communicating with any such

nonparty employee, a lawyer must disclose to such employee both the lawyer's identity and

the fact that the lawyer represents a party with a claim against the employee's employer.

employee of a party organization, who has the authority to bind a party organization as to the

representation to which the communication relates.

(d) This Rule does not prohibit communications by a lawyer with government officials

who have the authority to redress the grievances of the lawyer's client, whether or not those

grievances or the lawyer's communications relate to matters that are the subject of the

representation, provided that in the event of such communications the disclosures specified in

(b) are made to the government official to whom the communication is made.

Florida: Fla.R. of Prof.Conduct, R. 4-4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a person the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so. Notwithstanding the foregoing, an attorney may,

without such prior consent, communicate with another's client in order to meet the

requirements of any statute or contract requiring notice or service of process directly on an

adverse party, in which event the communication shall be strictly restricted to that required

by statute or contract, and a copy shall be provided to the adverse party's attorney.

Georgia: Ga.State Bar R., R.4-102, R .4.2: (a) A lawyer who is representing a client in a

matter shall not communicate about the subject of the representation with a person the lawyer

knows to be represented by another lawyer in the matter, unless the lawyer has the consent of

the other lawyer or is authorized to do so by constitutional law or statute.

(b) Attorneys for the State and Federal Government shall be subject to this Rule in the

same manner as other attorneys in this State.

The maximum penalty for a violation of this Rule is disbarment.

Hawaii: Haw. R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a person the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Idaho: Idaho R. of Prof. Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Illinois: Ill.R. of Prof.Conduct, R. 4.2: During the course of representing a client a lawyer

shall not communicate or cause another to communicate on the subject of the representation

with a party the lawyer knows to be represented by another lawyer in the matter, unless the

first lawyer has obtained the prior consent of the lawyer representing such other party or as

may otherwise be authorized by law.

CRS-31

Indiana: Ind.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Iowa: Iowa Code of Prof. Responsibility, DR 7-104(A)(1): (A) During the course of his

representation of a client a lawyer shall not: (1) Communicate or cause another to

communicate on the subject of the representation with a party known to be represented by a

lawyer in that matter except with the prior consent of the lawyer representing such other party

or as authorized by law.

Kansas: Kan.S.Ct.R., R. 226, Model R. of Prof.Conduct, R. 4.2: In representing a client, a

lawyer shall not communicate about the subject of the representation with a party the lawyer

knows to be represented by another lawyer in the matter, unless the lawyer has the consent of

the other lawyer or is authorized by law to do so.

Kentucky: Ky.S.Ct.R., R. of Prof. Conduct, R. 4.2: In representing a client, a lawyer shall

not communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Louisiana: La.R. of Prof. Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so. A lawyer shall not effect the prohibited

communication through a third person, including the lawyer's client.

Maine: Me.Code of Prof. Responsibility, R 3.6(f): During the course of representation of a

client, a lawyer shall not communicate or cause another to communicate on the subject of the

representation with a party the lawyer knows to be represented by a lawyer in that matter

unless the lawyer has the prior consent of the lawyer representing such other party or is

authorized by law to do so.

Maryland: Md.Lawyers' R. of Prof. Conduct, R. 4.2: In representing a client, a lawyer shall

not communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Massachusetts: Mass.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a person the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Michigan: Mich.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Minnesota: Minn.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so. A party who is a lawyer may communicate directly

CRS-32

with another party unless expressly instructed to avoid communication by the lawyer for the

other party, or unless the other party manifests a desire to communicate only through counsel.

Mississippi: Miss.R. of Prof. Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Missouri: Mo.St.Ct.R., R.4-4.2: In representing a client, a lawyer shall not communicate

about the subject of the representation with a party the lawyer knows to be represented by

another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is

authorized by law to do so.

Montana: Mont.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Nebraska: Neb.Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his

or her representation of a client, a lawyer shall not: (1) Communicate or cause another to

communicate on the subject of the representation with a party he knows to be represented by

a lawyer in that matter unless he has the prior consent of the lawyer representing such other

party or is authorized by law to do so.

Nevada: Nev.S.Ct.R., R.182: In representing a client, a lawyer shall not communicate about

the subject of the representation with a party the lawyer knows to be represented by another

lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by

law to do so.

New Hampshire: N.H.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

New Jersey: N.J.Rules of Prof.Conduct, RPC 4.2 In representing a client, a lawyer shall not

communicate about the subject of the representation with a person the lawyer knows, or by

the exercise of reasonable diligence should know, to be represented by another lawyer in the

matter, including members of an organization's litigation control group as defined by RPC

1.13, unless the lawyer has the consent of the other lawyer or is authorized by law to do so,

or unless the sole purpose of the communication is to ascertain whether the person is in fact

represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the

person as to whether that person is represented by counsel. Nothing in this rule shall,

however, preclude a lawyer from counseling or representing a member or former member of

an organization's litigation control group who seeks independent legal advice.

New Mexico: N.Mex.R.Prof.Conduct, R. 16-402: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so. Except for persons having a managerial

responsibility on behalf of the organization, an attorney is not prohibited from communicating

directly with employees of a corporation, partnership or other entity about the subject matter

of the representation even though the corporation, partnership or other entity itself is

represented by counsel.

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New York: N.Y. R. of Ct. §1200.35 [DR 7-104] : (A) During the course of his representation

of a client a lawyer shall not: (1) Communicate or cause another to communicate on the

subject of the representation with a party he knows to be represented by a lawyer in that

matter unless he has the prior consent of the lawyer representing such other party or is

authorized by law to do so.

North Carolina: N.C.R.Prof.Conduct R.4.2: During the representation of a client, a lawyer

shall not communicate about the subject of the representation with a party the lawyer knows

to be represented by another lawyer in the matter, unless the lawyer has the consent of the

other lawyer or is authorized by law to do so. It is not a violation of this Rule for a lawyer

to encourage his or her client to discuss the subject of the representation with the opposing

party in a good faith attempt to resolve the controversy.

North Dakota: N.D.R.Prof.Conduct R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Ohio: Ohio Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his

representation of a client a lawyer shall not: (1) Communicate or cause another to

communicate on the subject of the representation with a party he knows to be represented by

a lawyer in that matter unless he has the prior consent of the lawyer representing such other

party or is authorized by law to do so.

Oklahoma: Okla.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate, or cause another to communicate about the subject of the representation with

a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer

has the consent of the other lawyer or is authorized by law to do so.

Oregon: Ore. Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his or

her representation of a client, a lawyer shall not: (1) Communicate or cause another to

communicate on the subject of the representation, or on directly related subjects, with a person

he knows to be represented by a lawyer in that subject, or on directly related subjects, unless

(a) the lawyer has the prior consent of the lawyer representing such other party; the lawyer

is authorized by law to do so; or (c) a written agreement requires a written notice or demand

to be sent to such other person, in which case a copy of such notice or demand shall also be

sent to such other person's lawyer.

Pennsylvania: Pa.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Rhode Island: R.I.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

South Carolina: S.C.App.Ct.R., R.407: 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

CRS-34

South Dakota: S.D.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Tennessee: Tenn.S.Ct.R., R.8: DR 7-104(A)(1): During the course of a lawyer's

representation of a client a lawyer shall not: (1) Communicate or cause another to

communicate on the subject of the representation with a party the lawyer knows to be

represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer

representing such other party or is authorized by law to do so.

Texas: Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct, R.4.02: (a) In representing

a client, a lawyer shall not communicate or cause or encourage another to communicate about

the subject of the representation with a person, organization or entity of government the

lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer

has the consent of the other lawyer or is authorized by law to do so.

(b) In representing a client, a lawyer shall not communicate or cause another to

communicate about the subject of the representation with a person or organization the lawyer

knows to be employed or retained for the purpose of conferring with or advising another

lawyer about the subject of the representation, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

those persons presently having a managerial responsibility with an organization or entity of

government that relates to the subject of the representation, or (2) those persons presently

employed by such organization or entity and whose act or omission in connection with the

subject of representation may make the organization or entity of government vicariously liable

for such act or omission.

(d) When a person, organization, or entity of government that is represented by a lawyer

in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not

prohibited by paragraph (a) from giving such advice without notifying or seeking consent of

the first lawyer.

Utah: Utah R.Prof.Conduct, R.4.2: (a) General Rule. A lawyer who is representing a client,

in a matter shall not communicate about the subject of the representation with a person the

lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the

consent of the other lawyer or is authorized by: (1) constitutional law or statute; (2) decision

or a rule of a court of competent jurisdiction; (3) a prior written authorization by a court of

competent jurisdiction obtained by the lawyer good faith; or (4) paragraph (b) of this rule.

(b) Rules Relating to Government Lawyers Engaged in Civil or Criminal Law

Enforcement. A government lawyer engaged in a criminal or civil law enforcement matter,

or a person acting under the lawyer’s direction in the matter, may communciate with a persion

known to be represented by a lawyer if:

(1) the communciation is in the course of, and limited to, an investigation of a different

matter unrelated to the representation or any ongoing, unlawful conduct; or

(2) the communication is made to protect against imminent risk of death or serious

bodily harm or substantial property damage that the government lawyer reasonably relieves

may occur, and the communciation is limited to those matters necessary to protect against the

imminent risk; or

(3) the communciation is made at the time of the arrest of the represented person and

after he or she is advised of his or her rights to remain silent and to counsel and voluntarily

and knowingly waives these rights; or

(4) the communication is initiated by the represented person, directly or through an

intermediary, if prior to the communciation the represented person has given a written or

CRS-35

recorded voluntary and informed wiaver of counsel, including the right to have substitute

counsel, for that communciation.

organization, an individual is “represented” by counsel for the organization if the individual

is not separately represented with respect to the subject matter of the communciation, and

(A) with respect to a communcation by a government lawyer in a civil or criminal law

enforcement matter, is known by the government lawyer to be a current member of the control

group of the represented organization; or

(B) with respect to a communication by a lawyer in any other matter, is known by the

lawyer to be (i) a current member of the control group of the represented organization; or (ii)

a reprsentative fo the organizaiton whose acts or omissions in the matter may be imputed to

the organization under applicable law; or (iii) a representative of the organization whose

statements under applicable rules of evidence would have the effect of binding the

organization with respect to proof of the matter.

(2) The term “contorl group” means the following persons: (A) the chief executive

officer, chief operating officer, chief financial officer, and chief legal officer of the

organization; and (B) to the extent not encompassed by the foregoing, the chair of the

organization’s governing body, president, treasurer, and secretary, and a vice-president or

vice-chair who is in charge of a princial business unit, division, or function (such as sales,

adminstration, or finance) or performs a major policy making function for hte organization;

and (C) any other current employee or official who is known to be participating as a principal

decision maker in the detemination of the organization’s legal position in the matter.

(3) This rule does not apply to communications with government parties, employees, or

officials unless litigation about the subject of the representation is pending or imminent.

Communications with eleected officials on policy matters are permissible when litigation is

pending or imminent after disclosure of hte representation to the official.

(D) Limitations on Communciations. When communicating with a represented person

pursuant to this Rule, no lawyer may (1) inquire aobut privileged communciaitons between

the person and counsel or about information regarding litigation strategy or legal arguments

of counsel, or seek to induce the person to forego representation or disregard the advice of the

person’s counsel; or

(2) engage in negotations of a plea agreement, settlement, statutory or nonstauttory

immunity agreement, or other disposition of actual or potential criminal charges or civil

enforcement claims, or sentences or penalties with repsect to the matter in which the person

is represented by counsel unless such negotiations are permitted by paragraphs (a)(1), (2) or

(3), or (b)(4).

Vermont: Vt.D.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a person the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Virginia: Va.,R.Prof.Conduct, R.4.2: In representing a client, alwyer shall not communicate

about the subjectj of the representation with a person that the lawyer knows to be represented

by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is

authorized by law to do so.

Washington: Wash.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

West Virginia: W.Va.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

CRS-36

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Wisconsin: Wis.S.Ct.R., R.4.2: In representing a client, a lawyer shall not communicate

about the subject of the representation with a party the lawyer knows to be represented by

another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is

authorized by law to do so.

Wyoming: Wyo.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Grand Jury Exculpatory Evidence Rule

Alaska: Alaska R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which are necessary to enable the

tribunal to make an informed decision, including facts are adverse to the lawyer’s position.

R.3.8, Comment “A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.”

Arizona: Ariz.R. of Prof.Conduct, ER 3.3(d): In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Arkansas: Ark.R. of Prof.Conduct, R. 3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Connecticut: Conn.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Delaware: Del.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included."

District of Columbia: D.C.R. of Prof.Conduct, R.3.8: The prosecutor in a criminal case

shall not . . . (g) In presenting a case to a grand jury, intentionally interfere with the

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independence of the grand jury, preempt a function of the grand jury, abuse the processes of

the grand jury, or fail to bring to the attention of the grand jury material facts tending

substantially to negate the existence of probable cause.

Florida: Fla.R. of Prof.Conduct, R. 4-3.3: In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

R. 4-3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 4-3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Indiana: Ind.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Kansas: Kan.S.Ct.R., R. 226, Model R. of Prof.Conduct, R. 3.3(d): In an ex parte

proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which

will enable the tribunal to make an informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Kentucky: Ky.S.Ct.R., R. of Prof. Conduct, R.3.3(d): In an ex parte proceeding, a lawyer

shall inform the tribunal of all material facts known to the lawyer which will enable the

tribunal to make an informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Maryland: Md.Lawyers' R. of Prof. Conduct, R. 3.3(d): In an ex parte proceeding, a lawyer

shall inform the tribunal of all material facts known to the lawyer which will enable the

tribunal to make an informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Michigan: Mich.R. of Prof.Conduct, R. 3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Mississippi: Miss.R. of Prof. Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

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Missouri: Mo.St.Ct.R., R.4-3.3(d): In an ex parte proceeding, a lawyer shall inform the

tribunal of all material facts known to the lawyer which will enable the tribunal to make an

informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

New Hampshire: N.H.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

New Mexico: N.Mex.R.Prof.Conduct, R. 16-303D.: In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.13-308, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d) [16-303D], governing ex parte

proceedings, among which grand jury proceedings are included.

North Dakota: N.D.R.Prof.Conduct, R.3.3(f): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(f), governing ex parte proceedings, among

which grand jury proceedings are included.

Oklahoma: Okla.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Pennsylvania: Pa.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Rhode Island: R.I.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform

the tribunal of all material facts known to the lawyer which will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

South Carolina: S.C.App.Ct.R., R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a

lawyer shall inform the tribunal of all material facts known to the lawyer which will enable

the tribunal to make an informed decision, whether or not the facts are adverse.

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R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

South Dakota: S.D.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Texas: Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct, R.3.03(a): A lawyer shall

not knowingly . . . (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged

fact which the lawyer reasonably believes should be known by that entity for it to make an

informed decision.

R.3.09, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.03(a)(3), governing ex parte proceedings,

among which grand jury proceedings are included.

Utah: Utah R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform the

tribunal of all material facts known to the lawyer which will enable the tribunal to make an

informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Vermont: Vt..R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform the

tribunal of all material facts known to the lawyer which will enable the tribunal to make an

informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

West Virginia: W.Va.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

Wisconsin: Wis.S.Ct.R., R.20:3.3(d): In an ex parte proceeding, a lawyer shall inform the

tribunal of all material facts known to the lawyer which will enable the tribunal to make an

informed decision, whether or not the facts are adverse.

R.20:3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 20:3.3(d), governing ex parte proceedings,

among which grand jury proceedings are included.

Wyoming: Wyo.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer which will enable the tribunal to

make an informed decision, whether or not the facts are adverse.

R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not

simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among

which grand jury proceedings are included.

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Grand Jury Subpoena Rules

Alaska: Alaska R. of Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall: . . . (f)

not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about

a past or present client unless: (1) the prosecutor reasonably believes: (i) the information

sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought

is essential to the successful completion of an ongoing investigation or prosecution; (iii) there

is no other feasible alternative to obtain the information; and (2) the prosecutor obtains prior

judicial approval after an opportunity for an adversarial proceeding.

Colorado: Colo.R. of Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall: . . . (f)

not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence abut

a past or present client unless: (1) the prosecutor reasonably believes: (i) the information

sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought

is essential to the successful completion of an ongoing investigation or prosecution; and (iii)

there is no other feasible alternative to obtain the information.

Georgia: Ga.State Bar R., R.4-102, R .3.8: The prosecutor in a criminal case . . . (f) not

supoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past

or present client unless the proscutor reasonably believes: (1) the information sought is not

protected from disclosure by any applciable privilege; (2) the evidence sought is essential to

the successful completion of an ongoing investigation or prosecution; and (3) there is no other

feasible alternative to obtain the information.

Louisiana: La.R. of Prof. Conduct, R. R. 3.8: The prosecutor in a criminal case shall: . . . (f)

Not, except in habitual offender proceedings for the purpose of identification only, or in a post

conviction proceeding on the issue of competency of counsel raised by his/her former client,

subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a

past or present client unless: (1) the prosecutor reasonably believes: (i) the information sought

is not protected from disclosure by any applicable privilege; (ii) the evidence sought is

essential to the successful completion of an ongoing investigation or prosecution; and (iii) the

purpose of the subpoena is not to harass the attorney or his or her client.

Massachusetts: Mass.R. of Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall .

. . (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence

about a past or present client unless: (1) the prosecutor reasonably believes: (i) the information

sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought

is essential to the successful completion of an ongoing investigation or prosecution; and (iii)

there is no other feasible alternative to obtain the information; and (2) the prosecutor obtains

prior judicial approval after an opportunity for an adversarial proceeding. In representing a

client, a lawyer shall not communicate about the subject of the representation with a person

the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the

consent of the other lawyer or is authorized by law to do so.

North Carolina: N.C.R.Prof.Conduct R. 3.8: The prosecutor in a criminal case shall: . . . (f)

not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about

a past or present client unless: (1) the information sought is not protected from disclosure by

any applicable privilege; (2) the evidence sought is essential to the successful completion of

an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain

the information.

Oklahoma: Okla.R.Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall: . . . (g) not

subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a

CRS-41

past or present client unless: (1) the information sought is not protected from disclosure by

any applicable privilege; (2) the evidence sought is essential to the successful completion of

an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain

the information. The lawyer upon whom a subpoena is served shall be afforded a reasonable

time to file a motion to quash compulsory process of his/her attendance. Whenever a

subpoena is issued for a lawyer who then moves to quash it by invoking attorney/client

privilege, the prosecutor may not press further in any proceeding for the subpoenaed lawyer's

appearance as a witness until an adversary in camera hearing has resulted in a judicial ruling

which resolves all the challenges advanced in the lawyer's motion to quash.

Pennsylvania: Pa.R.Prof.Conduct, R.3.10: A public prosecutor or other government lawyer

shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury

or other tribunal investigating criminal activity in circumstances where the prosecutor or other

governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a

person who is or has been represented by the attorney witness.

Rhode Island: R.I.R.Prof.Conduct, R.3.8: The prosecutor in a criminal case shall: . . . (f) not,

without prior judicial approval, subpoena a lawyer for the purpose of compelling the lawyer

to provide evidence concerning a person who is or was represented by the lawyer when such

evidence was obtained as a result of the attorney-client relationship.

South Carolina: S.C.App.Ct.R., R.Prof.Conduct, R.3.8: The prosecutor in a criminal case

shall: . . . (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present

evidence about a past or present client unless: (1) the information sought is not protected from

disclosure by any applicable privilege; (2) the evidence sought is essential to the successful

completion of an ongoing investigation or prosecution; and (3) there is no other feasible

alternative to obtain the information.

Tennessee: Tenn.S.Ct.R., R.8: DR 7-103(C): It is unprofessional conduct for a prosecutor

to subpoena an attorney to the grand jury or to any state or federal administrative body with

a similar function without prior judicial approval in circumstances where the prosecutor or

such other government attorney seeks to compel the attorney-witness to provide evidence

concerning a person who at the time is represented by the attorney-witness.

Vermont: Vt..R.Prof.Conduct, R.3.8: R.3.8:The prosecutor in a criminal case shall: . . . (f)

not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about

a past or present client unless: (1) the information sought is not protected from disclosure by

any applicable privilege; (2) the evidence sought is essential to the successful completion of

an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain

the information.

United States District Court Rules:

Standards of Attorney Conduct

Alabama

N.D.Ala.Local R., LR83.1(f)(“Each attorney who is admitted to the bar of this court or

who appears in this court pursuant to subsection (b) or (c) of this Rule is required to be

familiar with, and shall be governed by, the Local Rules of this court and, to the extent not

inconsistent with the preceding, the Alabama Rules of Professional Conduct adopted by the

Alabama Supreme Court and, to the extent not inconsistent with the preceding, the American

Bar Association Model Rules of Professional Conduct, except Rule 3.8(f) thereof [relating to

grand jury subpoenas]”)

CRS-42

M.D.Ala.Local R., LR83.1(f)(“Attorneys admitted to practice before this Court shall

adhere to this Court's Local Rules, the Alabama Rules of Professional Conduct, the Alabama

Standards for Imposing Lawyer Discipline, and, to the extent not inconsistent with the

preceding, the American Bar Association Model Rules of Professional Conduct”)

S.D.Ala.Local R., LR83.5(f)(“Any attorney who is admitted to the Bar of this Court or

who appears in this court pursuant to subsection (b), (c), (d) or (e) of this rule shall agree to

read and abide by the Local Rules of this Court, the ethical limitations and requirements

governing the behavior of members of the Alabama State Bar, and, to the extent not

inconsistent with the preceding, the American Bar Association Model Rules of Professional

Conduct”)

Alaska

D.Alaska R., LR 83.1(h)(“Every member of the bar of this court and any attorney

admitted to practice in this court under D.Ak.LR 83.1(c)-(d) shall be familiar with and comply

with the Standards of Professional Responsibility required of the members of the State Bar

of Alaska and contained in the Alaska Rules of Professional Conduct and decisions of any

court applicable thereto, except insofar as such rules and decisions shall be otherwise

inconsistent with federal law . . .”)

Arizona

D.Ariz.R. R.1.6(d)(“The ‘Rules of Professional Conduct,’ in the Rules of the Supreme

Court of the State of Arizona, shall apply to attorneys admitted or otherwise authorized to

practice before the United States District Court for the District of Arizona”)

Arkansas

E.D.Ark. & W.D.Ark.R, LR 83.5(e)(“All persons enrolled as attorneys in either of these

courts shall be subject to the Uniform Federal Rules of Disciplinary Enforcement, which are

hereby adopted and included in the Appendix to these rules.”)

Model Fed.R. of Disc.Enf., R.IV.B. (“. . . The Code of Professional Responsibility or

rules of Professional Conduct adopted by this Court is the Code of Professional Responsibility

or Rules of Professional Conduct adopted by the highest court of the state in which this Court

sits, as amended from time to time by that state court, except as otherwise provided by

specific Rule of this Court after consideration of comments by representatives of bar

associations within the state”)

California

C.D.Cal.Local R., Ch.VII. R1.2. (“In order to maintain the effective administration of

jsutice and the integrity of hte ocurt, each attorney shall become familiar with and comply

with the standards of professional conduct required of members of the State Bar of California

and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of

California and the decisions of any curt applicable thereto. These statutes, rules and decisions

are hereby adopted as the standards of professional conduct, and any breach or violationt

hereof may be the basis for the imposition of discipline. The Model Code of Professional

Responsibility of the American Bar Association may be considered guidance.”)

E.D.Cal.Local R., Civ.L.R. 83-180(e)(“Every member of the Bar of this Court and any

attorney permitted to practice in this Court under subsection (b) shall become familiar with

and comply with the standards of professional conduct required of members of the State Bar

of California and contained in the State Bar Act, the Rules of Professional Conduct of the

State Bar of California and the decisions of any Court applicable thereto, which are hereby

adopted as standards of professional conduct in this Court. In the absence of an applicable

standard therein, the Model Code of Professional Responsibility of the American Bar

Association may be considered guidance. No attorney admitted to practice before this Court

shall engage in any conduct which degrades or impugns the integrity of the Court or in any

manner interferes with the administration of justice”)

CRS-43

E.D.Cal.Local R., L.R.Crim. 50-400(a) (“The general rules ending in 100 to 199. . . are

fully applicable inc riminal cases in the absence of a specific criminal rule directly on point”)

N.D.Cal.Civ.Local R., CivilL.R. 11-4(a)(“Every member of the bar of this Court any

any attorney permitted to practice in this Court under Civil L.R. 11 must: (1) Be familar and

comply with the standards of professional conduct required of members of the State Bar of

California”)

N.D.Cal.Crim.Local R., Crim.L.R. 2.1(“. . . The provisi0ons of the Civil Local Rules

of the Court shall apply to criminal actions and proceedings, except where they may be

inconsistent with these criminal local rules, the Federal Rules of Criminal Procedure or

provisions of law specifically applicable to criminal cases”)

S.D.Cal.Civ.Local R., LR83.4.b. (“Every member of the bar of this court and any

attorney permitted to practice in this Court shall become familiar with and comply with the

standards of professional conduct required of members of the State Bar of California and

contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of

California, and decisions of any court applicable thereto, which are hereby adopted as

standards of professional conduct in this court. This specification shall not be interpreted to

be exhaustive of the standards of profession conduct. In that connection, the Code of

Professional Responsibility of the American Bar Association should be noted. No attorney

admitted to practice before this Court shall engage in any conduct which degrades or impugns

the integrity of the Court or in any manner interferes with the administration of justice.”)

S.D.Cal.Crim.Local Rules, Crim.L.R. 1.1[e.] (“The provosions of the following Civil

Local Rules shall apply to criminal actions and proceedings, except where they may be

inconsistent with the Federal Rules of Criminal procedure or provisions of law specifically

applicable to criminal cases: . . . 21. Rule 83.4. . . .”)

Colorado

D.Colo.Local R., LR 83.6 (“The rules of professional conduct, as adopted by the

Colorado Supreme Court, are adopted as standards of professional responsibility applicable

in this court”)

Connecticut

D.Conn.Local R.Civ.P., R.3(a)1.(“Other than the specific Rules enumerated in Rule

3(a)2 of these Local Rules [identifying Conn.R.Prof.Conduct 3.6, 3.7(b) relating to ], this

Court recognizes the authority of the Rule of Professional Conduct as approved by the Judges

of the Connecticut Superior Court as in effect on November 1, 1997, as expressing the

standards of professional conduct expected of lawyers practicing in the District of

Connecticut”)

D.Conn.Local.R.Crim.P., R.1(c) (“The following Local Civil Rules shall apply in

criminal proceedings: Rule . . . 3 (Discipline of Attorneys) . . . .”)

Delaware

D.Del.Local R.Civ.P.&P., R.83.6(d)(2)(“Acts or omissions by an attorney admitted to

practice before this Court, individually or in concert with any other person or persons, which

violate the Model Rules of Professional Conduct of the American Bar Association, subject to

such modifications as may be required or permitted by Federal statute, court rule or decision

of law, shall constitute misconduct and be grounds for discipline, whether or not the act or

omission occurred in the course of an attorney-client relationship”)

District of Columbia

D.D.C.Local R., LCvR.83.15(a), LCrR.57.26(a) (“Violations of the Rules of

Professional Conduct (as adopted by the District of Columbia Court of Appeals except as

otherwise provided by specific Rule of this Court) by attorneys subject to these Rules shall

be grounds for discipline, whether or not the act or omission occurred in the course of an

attorney-client relationship”).

CRS-44

Florida

N.D.Fla.Gen.R., R.11.1(G)(1)(“Except where an act of Congress, federal rule of

procedure, Judicial Conference Resolution or rule of court provides otherwise, the

professional conduct of all members of the bar of this district shall be governed by the Rules

of Professional Conduct of the Rules Regulating the Florida Bar”)

M.D.Fla.R., R.2.02(c)(“Any attorney who appears specially in this Court pursuant

subsections (a) or (b) of this rule shall be deemed to be familiar with, and shall be governed

by, these rules in general, including Rule 2.04 hereof in particular; and shall also be deemed

to be familiar with and governed by the Code of Professional Responsibility and other ethical

limitations or requirements then governing the professional behavior of members of the Florida

Bar”)

S.D.Fla.Local R., Gen.R., R.11.1(C)(“The standards of professional conduct of

members of the Bar of this Court shall include the current Rules Regulating The Florida Bar”)

Georgia

N.D.Ga.Civ.Local R., LR 83.1C (“All lawyers practicing before this court shall be

governed by and shall comply with the specific rules of practice adopted by this court and,

unless otherwise provided, with the Code of Professional Responsibility and the Standards of

Conduct contained in the Rules and Regulations of the State Bar of Georgia and with the

decisions of this court interpreting these rules and standards”)

N.D.Ga.Crim.Local R., LCrR 57.1C (“Refer to LR.83.1C”)

M.D.Ga.Local R., LR 83.2.1 (“. . . Attorneys practicing before this Court shall be

governed by this Court's Local Rules, by the Rules of Professional Conduct adopted by the

highest court of the state in which this Court sits, as amended from time to time by that state

court, and to the extent not inconsistent with the preceding, the American Bar Association

Model Rules of Professional Conduct, except as otherwise provided by specific Rule of this

Court”)

S.D.Ga.Local R., LR 83.5(d) (“The standards of professional conduct of the members

of the bar of this Court shall include the current canons of professional ethics of the American

Bar Association. A violation of any of these rules in connection with any matter pending

before this Court may constitute a contempt of this Court potentially subjecting such attorney

to appropriate disciplinary action”)

Hawaii

D.Haw.Gen.R.& Civ.R., LR 83.3(“Every member of the bar of this court and any

attorney permitted to practice in this court pursuant to LR 83.1(d) shall be governed by and

shall observe the standards of professional and ethical conduct required of members of the

Hawaii State Bar, except as follows: [Rule 1.6 relating to confidentiality of information and

Rule 8.4 relating to misconduct but include the prohibition on dishonesty, fraud, deceit or

misrepresentation]”)

Idaho

D.Id. Local R., R.83.5(a)(“All members of the bar of this court and all attorneys

permitted to practice in this court shall familiarize themselves with and comply with the

standards of professional conduct required of members of the Idaho State Bar and decisions

of any court applicable thereto which are hereby adopted as standards of professional conduct

of this court . . .”)

Illinois

N.D.Ill.R.Prof.Conduct, LR.83.50.1. (“LR83.50.1 through LR83.58.9 are the rules of

professional conductj for the Northern District of Illinois. The rules have been numbered to

permit a ready identificaiton of the comparable rule in the ABA Model Rules. The ABA

Model Rules run from 1.1 through 8.5. The local rules are of the fomr LR83.5x.x. where the

x.x. part of therule is the same as the comparable ABA Model Rule”)(Included are the the

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candor to the tribunal-grand jury rules and comments of LR83.53.3 and LR.83.53.8; the no

contact rule of LR83.54.2; and the honesty rules of LR83.54.1 and LR83.58.4).

C.D.Ill.Local R., Gen.& Civ.R., LR 83.6(D) (“The Rules of Professional Conduct

adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court

of Illinois, as amended from time to time by that court, except as otherwise provided by

specific rule of this court after consideration of comments by representatives of bar

associations within the state”)

S.D.Ill.LocalR., R 83.4(d)(2)(“. . . The Rules of Professional Conduct adopted by this

Court are the Rules of Professional Conduct adopted by the Supreme Court of Illinois as

amended from time to time except as otherwise provided by specific Rule of this Court”)

Indiana

N.D.Ind.Local R., L.R.83.5(f)(“The Rules of Professional Conduct, as adopted by the

Indiana Supreme Court, and the Standards for Professional Conduct, as adopted by the

Seventh Circuit, shall provide the standards of conduct for those practicing in this court”)

S.D.Ind.Local R., L.R.83.5(f)(“The Rules of Professional Conduct, as adopted by the

Indiana Supreme Court, shall provide the standards of conduct for those practicing in this

Court”)

Iowa

N.D.Iowa & S.D.Iowa Local Civ.R. do not appear to specify a standard of conduct to

which members of their bars are held other than to observe that, “Any member of the bar of

the court may, for good cause shown, and after an opportunity has been given the member to

be heard, be disbarred, suspended from practice for a definite time, reprimanded, or subject

to such other discipline as the court may deem proper,” LR 83.2.g.

Kansas

D.Kan.Local R., LR.83.6.1(a)(“The Kansas Rules of Professional Conduct as adopted

by the Supreme Court of Kansas, and as amended by that court from time to time, except as

otherwise provided by a special rule of this court, are adopted by this court as the standards

of professional conduct”)

Kentucky

E.D.Ky. & W.D.Ky. Jt.Local R., LR 83.3(c) (“If it appears to the Court that an attonrey

practicing before the Court has violated the rules of the Kentucky Supreme jCourt governing

jprofessional conduct or is guilty of othe rconduct unbecoming an officerj of the Court, any

judge may order an attorney to show cause–within a specified time–why the Court should not

discipline the attorney . . .”)

Louisiana

E.D.La., M.D.La., & W.D.La. Uniform Local R., LR83.2.4E (“This court hereby

adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter

may be amended from time to time by the Louisiana Supreme Court, except as otherwise

provided by a special rule or general order of a court”)

E.D.La., M.D.La., & W.D.La. Uniform Local R., LR83.2.4M (“Except as otherwise

provided by a special rule of the court, the Rules of Professional Conduct of the Louisiana

State Bar Association promulgated by the Louisiana Supreme Court and in effect on May 15,

1989 are hereby adopted by this court. Subsequently promulgated, or other rules of

professional conduct may be adopted by this court by general rule”)

E.D.La., M.D.La., & W.D.La. Uniform Local R., LR83.2.4W (“This court hereby

adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter

may be amended from time to time by the Louisiana Supreme Court, except as otherwise

provided by a special rule of the courts”)

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Maine

D.Me.R, Civ.R. 83.3(d)(2)(“. . . The Code of Professional Responsibility adopted by

this Court is the Code of Professional Responsibility adopted by the Supre

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