Communications With Represented Persons; Final Rule DEPARTMENT OF JUSTICE

SUMMARY: This final rule governs the circumstances under which

attorneys employed by the Department of Justice (``Department'') may

communicate with persons known to be represented by counsel in the

course of law enforcement investigations and proceedings.

The purpose of this rule is to impose a comprehensive, clear, and

uniform set of regulations on the conduct of government attorneys

during criminal and civil investigations and enforcement proceedings.

The rule is intended to ensure that government attorneys adhere to the

highest ethical standards, while eliminating the uncertainty and

confusion arising from the variety of interpretations of state rules,

some of which have been incorporated as local court rules in a number

of federal district courts.

The rule establishes, prospectively, a general prohibition, subject

to limited enumerated exceptions, against contacts with ``represented

parties'' without the consent of counsel. This prohibition derives from

the American Bar Association (``ABA'') Code of Professional

Responsibility and its successor, the ABA Model Rules of Professional

Conduct. The rule, on the other hand, generally permits investigative

contacts with ``represented persons'': that is, individuals or

organizations that are represented by counsel but that have not yet

been named as defendants in a civil or criminal enforcement proceeding

or arrested as part of a criminal proceeding. However, the rule does

not permit contacts with represented persons without the consent of

counsel for the purpose of negotiating plea agreements, settlements, or

other similar legal arrangements.

In addition, the Department intends to issue substantial additions

to the United States Attorneys' Manual (``Manual'') to provide

additional direction to Department attorneys when they deal with

represented individuals and organizations, in order to accommodate more

fully the principles and purposes underlying the state bar rules. Those

provisions will further restrict government attorneys when they contact

targets of criminal or civil law enforcement investigations who are

known to be represented by counsel, and when they communicate with

other represented persons.

EFFECTIVE DATE: September 6, 1994.

FOR FURTHER INFORMATION CONTACT:

F. Mark Terison, Senior Attorney, Legal Counsel, Executive Office for

United States Attorneys, United States Department of Justice, (202)

514-4024. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Background

This final rule on the subject of communications with represented

persons culminates a lengthy rulemaking process in which a proposed

rule on the same subject was issued three separate times for comment.

See 59 FR 10086 (Mar. 3, 1994); 58 FR 39976 (July 26, 1993); and 57 FR

54737 (Nov. 20, 1992). Comments received after the publication in

November 1992 and in July 1993 of earlier versions of the rule resulted

in major substantive changes being made to the rule. As a result, a new

proposal reflecting these changes was published on March 3, 1994.

During the most recent comment period, the Department received many

thoughtful comments from private attorneys, local bar organizations,

state courts, federal prosecutors, and others. The Department closely

scrutinized all of these comments. After considering those comments,

the Department made several relatively minor amendments to the proposed

rule. Therefore, the final rule remains in substantially the same form

as the proposed rule issued in March 1994.

The final rule reflects the Department's commitment to fostering

ethical behavior consistent with the principles informing DR 7-

104(A)(1) of the ABA Code of Professional Responsibility and Rule 4.2

of the Model Rules of Professional Conduct, while setting forth clear

and uniform national guidelines upon which government attorneys can

rely in carrying out their responsibilities to enforce federal laws.

(The term ``attorney for the government'' is defined in paragraph

77.2(a), and where this phrase, or a variant of it, such as

``government attorney,'' is used elsewhere in this commentary, it has

the meaning set forth in paragraph 77.2(a), unless the context clearly

indicates otherwise, and it is typically used interchangeably with

``Department attorney.''). In essence, this regulation permits federal

prosecutors and agents to continue to conduct legitimate criminal and

civil investigations against all individuals, whether or not those

persons are represented by counsel. It allows government attorneys to

continue to make or direct undercover or overt contacts with

individuals and organizations represented by counsel for the purpose of

developing factual information up until the point at which they are

arrested or charged with a crime or named as defendants in a civil law

enforcement action. However, the regulation generally does not permit

federal prosecutors to attempt to negotiate plea agreements,

settlements, or similar arrangements with individuals represented by

counsel without the consent of their attorneys. This regulation also

precludes, with certain narrow exceptions, any contacts with

represented parties after an arrest, indictment, or the filing of a

complaint on the subject matter of the representation.

Additionally, the Department plans to add provisions to the United

States Attorneys' Manual that will set forth further guidance. The

Department intends to prohibit overt approaches by federal attorneys to

represented targets of criminal or civil enforcement proceedings

without the consent of counsel, unless certain enumerated exceptions

are met. The planned provisions also will generally require that

government attorneys receive approval from their supervisors before

communicating with any represented party or represented target.

Since early in this century, the rules of professional conduct that

govern attorneys have required that lawyers for one party in a dispute

communicate only through an adverse party's lawyer, rather than

directly. DR 7-104(A)(1) of the ABA Model Code of Professional

Responsibility provides:

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.

Rule 4.2 of the ABA Model Rules states:

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.

Disciplinary authorities in all 50 states and in the District of

Columbia have adopted one of these rules, or a similar prohibition.

Underlying these rules is the recognition that when two parties in a

legal proceeding are represented, it is generally unfair for an

attorney to circumvent opposing counsel and employ superior skills and

legal training to take advantage of the opposing party.

At the same time, the courts have long recognized that government

law enforcement agents must be allowed broad powers, within

constitutional limits, to investigate crime and civil violations of

police and regulatory laws. These powers properly include the authority

to conduct undercover operations and to interview witnesses, potential

suspects, targets, and even those defendants who waive their right to

remain silent. Although the Fifth and Sixth Amendments significantly

restrict contacts with defendants after their initial appearance before

a judge or after indictment, these constraints generally do not apply

before a person has been taken into custody or charged in an adversary

proceeding. Sound policies support this substantial power of police to

investigate. The general public, victims of crime, and even potential

suspects have a strong interest in vigorous inquiry by law enforcement

officers before arrest or the filing of charges.

As long as investigations were treated as within the province of

the police alone, the traditional rule forbidding counsel from directly

contacting represented persons did not come into conflict with

legitimate law enforcement activities. In recent years, however, the

Department of Justice has encouraged federal prosecutors to play a

larger role in preindictment, prearrest investigations. Some of this

increased involvement stems from the wider use of law enforcement

techniques, such as electronic surveillance, which require the

preparation of legal filings. Also, complex white collar and organized

crime investigations necessitate more intensive engagement of lawyers,

who present such cases to grand juries. Most important, greater

participation of lawyers at the preindictment stage of law enforcement

has been regarded as helpful in assuring that police investigations

comply with legal and ethical standards.

This extension of the traditional prosecutor's responsibility has

been a salutary development. One by-product, however, has been

uncertainty about whether the traditional professional limitation on

attorney contacts with represented parties should be viewed as a

restriction upon prosecutors engaged in investigations and, by

extension, the agents with whom they work. The overwhelming

preponderance of federal appellate courts have held that the

restriction on contacts with represented persons does not apply at the

preindictment investigation stage. See, e.g., United States v. Ryans,

903 F.2d 731, 739 (10th Cir.), cert. denied, 498 U.S. 855 (1990);

United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.), cert.

denied, 464 U.S. 852 (1983); United States v. Kenny, 645 F.2d 1323,

1339 (9th Cir.), cert. denied, 452 U.S. 920 (1981); United States v.

Weiss, 599 F.2d 730, 739 (5th Cir. 1979); and United States v.

Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied, 415

U.S. 989 (1974). Only the Second Circuit has suggested otherwise. See

United States v. Hammad, 846 F.2d 854, amended, 858 F.2d 834 (2d Cir.

1988), cert. denied, 498 U.S. 871 (1990). However, that suggestion was

muted significantly in a revised opinion by the Second Circuit that

``urge[d] restraint in applying the rule to criminal investigations,''

858 F.2d at 838, and ultimately concluded that ``a prosecutor is

`authorized by law' to employ legitimate investigative techniques in

conducting or supervising criminal investigations * * * '' Id. at 839.

By contrast, state courts and state bar organizations have varied

widely in their interpretation of the scope of the prohibition on

contacts embodied in DR 7-104, Model Rule 4.2, and their analogs. Some

examples of the varying interpretations are detailed below.

Uncertainty about the scope and applicability of DR 7-104, Model

Rule 4.2, and their state counterparts has directly affected the

investigative activities of agents, including Federal Bureau of

Investigation and Drug Enforcement Administration personnel, who work

with prosecutors. The expansive application of these rules in some

jurisdictions may have the effect of blocking preindictment interviews

or undercover operations that most courts have held permissible under

federal constitutional and statutory law. Additionally, the heightened

threat of disciplinary action that accompanies the expansive

application of these rules has created a chilling effect on prosecutors

responsible for directing these legitimate investigative activities.

These problems are compounded when federal attorneys assigned to

the same case are members of different state bars. Under federal law, a

Department attorney must be a member in good standing of a state bar,

but he or she need not belong to the bar in each state in which he or

she is practicing for the government. Therefore, prosecution teams

often comprise attorneys admitted to different bars. The application of

different state disciplinary rules to these individuals creates

uncertainty, confusion, and the possibility of unfairness. Indeed, one

member of a two-member federal prosecution team could receive a

commendation for effective law enforcement while the other member,

licensed in a different state, might be subject to state discipline for

the same conduct.

In light of these circumstances, the Department has concluded that

a compelling need exists that warrants a uniform federal rule to

reconcile the traditional rule against contacts with a represented

party with the obligation of the Department of Justice to enforce the

law vigorously. Indeed, absent a uniform federal rule, prosecutors have

been moved on occasion to reduce their participation in the

investigative phase of law enforcement so as to leave federal agents

unfettered by state disciplinary rules that were never intended to

govern police behavior. Such a retreat from the field by prosecutors

serves neither efficiency nor the interest in elevating legal

compliance and ethical standards in all phases of law enforcement.

Furthermore, the disciplinary rules themselves invite promulgation

of a regulation such as this one. Nearly all the states have adopted

rules that include an ``authorized by law'' exception. This final rule,

a duly promulgated regulation, is intended to constitute ``law'' within

the meaning of those exceptions.

Finally, the Department has long maintained, and continues to

maintain, that it has the authority to exempt its attorneys from the

application of DR 7-104 and Model Rule 4.2 and their state

counterparts. Furthermore, the Department maintains that whether, and

to what extent, such prohibitions should apply to Department attorneys

is a policy question. See Ethical Restraints of the ABA Code of

Professional Responsibility on Federal Criminal Investigations, 4B Op.

O.L.C. 576, 577 (1980). In light of the fact that all 50 states and the

District of Columbia have adopted some form of a prohibition on

contacts with represented parties, and in view of the long history of

those rules, the Department believes that its attorneys should adhere

to the principles underlying those rules to the maximum extent

possible, consistent with the Department's law enforcement

responsibilities. Therefore, even though the Department has the

authority to exempt its attorneys from the reach of these rules, the

Department has decided not to implement a wholesale exemption.

Rather, this regulation attempts to reconcile the purposes

underlying DR 7-104 and Model Rule 4.2 with effective law enforcement.

Recognizing the importance of the attorney-client relationship and the

desirability that an individual who is represented by counsel be fully

advised by counsel before negotiating legal agreements, this regulation

provides that federal attorneys may not negotiate plea bargains,

settlement agreements, immunity agreements, or similar arrangements

without the consent of the individual's attorney. There is a heightened

risk in this context of the prosecutor's superior legal training and

specialized knowledge being used to the detriment of the untutored

layperson. Thus, the regulations comport with the principal purpose of

DR 7-104 and Model Rule 4.2 by insisting that the individual's attorney

participate in these types of negotiations. Further, even when contacts

are allowed, the regulation is designed to minimize any intrusion into

the attorney-client relationship. At the same time, this regulation

does permit direct contacts at the preindictment, prearrest

investigative stage with any individual, whether or not he or she is

represented by counsel. The regulation is drafted to conform to the

approach of most federal appellate courts that have considered the

matter. See, e.g., United States v. Ryans, 903 F.2d 731 (10th Cir.)

(discussing cases), cert. denied, 498 U.S. 855 (1990), and other cases

cited previously in connection with the discussion of preindictment

contacts. The Department believes that public policy and effective law

enforcement would not be served if the simple act of retaining an

attorney could serve to exempt a person from lawful, court-approved

investigative techniques. The Department believes that it is

inappropriate to alter investigative techniques based upon an

individual's financial ability to retain counsel before the point at

which an indigent would be afforded court-appointed counsel.

This regulation and the planned changes to the United States

Attorneys' Manual also will give effect to other important aspects of

the bar rules against contacts with represented parties. For example,

the regulation precludes federal attorneys from disparaging an

individual's counsel or from attempting to gain access to attorney-

client confidences or lawful defense strategy. The guidelines that the

Department intends to add to the Manual also will make clear that once

an individual is in a likely adversarial situation with the government

and has retained an attorney to represent himself or herself with

respect to the particular subject matter under investigation, the

government attorney must take greater care before making any ex parte

contacts. While the regulation authorizes most communications before

arrest, the planned Manual changes provide that, as a matter of

internal policy guidance, federal prosecutors generally should not make

overt contacts with represented targets of investigations. However, the

planned Manual provisions permit overt contacts with a represented

target when initiated by the target; when necessary to prevent death or

physical injury; when the relevant investigation involves ongoing or

additional crimes, or different crimes from that to which the

representation relates; or when a United States Attorney or an

Assistant Attorney General expressly concludes, under all of the

circumstances, that the contact is needed for effective law

enforcement.

Finally, the regulation and planned Manual provisions also address

when a government attorney may communicate with an employee, officer,

or director of a represented corporation or organization without the

consent of counsel. The regulation generally prohibits a government

attorney from communicating with a current, high-level employee of a

represented organization who participates as a ``decision maker in the

determination of the organization's legal position in the proceeding or

investigation of the subject matter'' once the organization has been

named as a defendant in a criminal or civil law enforcement proceeding.

Further, the contemplated Manual provisions would generally prohibit

contacts without the consent of counsel with controlling individuals of

organizations that have not yet been named as defendants but are

targets of federal criminal or civil law enforcement investigations.

This final rule recognizes that state courts and disciplinary

bodies generally play the primary role in regulating the conduct of all

attorneys, including those who work for the federal government. The

Department also recognizes that with respect to most matters,

Department attorneys are subject to the bar rules and disciplinary

proceedings of the states in which they are licensed. However, the

Department believes it must be the final arbiter of the scope of

policing with respect to ex parte contacts involving federal

prosecutors, subject to the Constitution and the laws of the United

States. As noted above, because of the expanded participation of

federal prosecutors in preindictment investigations, and the trend of

state courts increasingly to apply DR 7-104 and Model Rule 4.2

expansively against federal prosecutors, these rules have affected and

circumscribed the power of federal officials to carry out their legally

mandated responsibilities. This regulation provides that the Attorney

General shall have exclusive authority to determine these rules.

Further, the Department's rules are intended fully to preempt and

supersede the application of state and local court rules relating to

contacts by Department of Justice attorneys when carrying out their

federal law enforcement functions. Only if the Attorney General finds

that a Department attorney has willfully violated these new rules would

that attorney continue to be subject to the full measure of state

disciplinary jurisdiction.

The Department is confident that, taken together, this regulation,

the planned Manual amendments, and this supplemental information will

promote the public interest in effective law enforcement in a manner

that also conforms to the highest standards of legal ethics.

The procedures established by this rule apply to conduct occurring

after the rule's publication.

II. Rulemaking History

On November 22, 1992, the Department of Justice published in the

Federal Register a proposed rule regarding communications with

represented persons. 57 FR 54737. By December 21, 1992, the close of

the comment period, the Department had received comments from 20

sources.

The Department was concerned that not all interested parties had

received sufficient opportunity to respond during the initial comment

period. Noting ``the complex and important nature of the rule to the

criminal and civil justice systems and the licenses and livelihoods of

its attorneys,'' on July 26, 1993, the Department reissued the proposed

rule for an additional 30-day comment period. 58 FR 39976. The

Department received 219 comments following this second publication of

the proposed rule.

On March 3, 1994, the Department issued a new proposed rule

governing the same subject matter for an additional 30-day comment

period. 59 FR 10086. In response to concerns raised by bar

organizations, bar counsel, state and federal judges, and others, that

proposal reflected substantial changes from the earlier proposals. This

publication of the proposed rule was accompanied by the issuance of

companion provisions that the Department intends to include in the

United States Attorneys' Manual, which set forth certain more

restrictive policies with regard to overt investigatory communications.

The discussion that follows summarizes the issues that were raised in

response to the Department's latest publication of the proposed rule.

III. Summary of Comments Received

During the most recent comment period, which closed on April 4,

1994, timely comments were received from 31 sources, including nine

individuals, nine organizations, four state court judges, one federal

court judge, five U.S. Attorney's Offices, two Department of Justice

components, and one other federal agency. Of the 31 comments received,

nine comments supported promulgation of the proposed rule, 20 comments

opposed the rule, and two other comments failed to take any definitive

position on the proposed rule as a whole. As with previous versions of

this rule, many writing in opposition to the Department's proposal

argued that it unfairly permits the Department to hold its attorneys to

ethical rules different from those that apply to all other attorneys.

Other opponents of the proposed rule--most notably the ABA and a

special committee of the Conference of State Supreme Court Chief

Justices--challenged the proposed rule on constitutional and statutory

grounds, arguing that the Department lacks authority to preempt state

ethics rules or to supersede local federal district court rules. Those

writing in support of the proposal generally praised it for bringing

certainty and clear guidance to an area that previously has been

unclear and disruptive of law enforcement functions.

The Department has considered carefully each comment and

appreciates the thoughtfulness reflected in them. The Department's

responses to those comments are discussed below, either in the

``General Comments'' section or in the context of the particular

section or paragraph to which they pertain as part of the ``Section-by-

Section'' analysis. All revisions adopted in the final rule are

indicated.

IV. General Comments

Comments were received on the following three general issues: (1)

the need for the rule; (2) the constitutional and statutory authority

for the rule; and (3) the sufficiency of the rule's internal

enforcement mechanisms. These general comments essentially repeated

comments received in response to previous versions of the proposed

rule. After careful reconsideration of these recurring issues, the

Department's position on many of these subjects--in particular, the

constitutional and statutory basis for this rule and the need for and

advisability of such a rule--remains the same. Therefore, the

Department's response in this section builds upon responses published

in previous commentaries.

A. The Need for the Rule. One state court judge, one federal judge,

five individuals, and six organizations criticized the proposed rule as

holding government attorneys to lower ethical standards than those that

apply to all other attorneys. This comment was formulated in a variety

of ways, with the following as illustrative examples: ``[t]he rules

apply to everyone, and it should especially apply to attorneys in

Government service;'' ``I do not know why it is that the department

somehow thinks [it] can exempt [its] attorneys from the rules of

conduct that all of the lawyers must abide by;'' ``[Department] lawyers

should be treated as subject to the same rule of law that applies to

the conduct of all other lawyers;'' and ``[f]airness simply will not

tolerate exalting the role of one adversary's advocate above the

other.''

In response to these comments, the Department finds it important,

first, to make clear that this rule is not designed to diminish the

ethical responsibilities of government attorneys; it is intended to

clarify those responsibilities. The current situation, in which state

contact rules purport to govern the substantive conduct of federal law

enforcement attorneys, has proven unsatisfactory because the standards

of ethical conduct are uncertain and subject to unpredictable and

varying interpretations. This uncertainty as to what constitutes

appropriate conduct by Department attorneys has interfered with the

responsible exercise of the law enforcement duties of Department

attorneys. The basic purpose of this regulation is to provide a uniform

rule of ethics regarding contacts with represented persons that can be

consistently and predictably applied. By doing so, the regulation will

allow all Department attorneys involved in a federal law enforcement

proceeding to understand and abide by applicable standards. There is

simply no basis for believing that there will be a reduction in

compliance with ethical standards by federal prosecutors.

Many commenters opposing the proposed rule dismissed as unnecessary

the creation of a uniform set of rules for Department attorneys. Some

commented that the ex parte contact rules currently in place do not

vary significantly, given that virtually every jurisdiction has adopted

some version of the ABA's anti-contact rule. Other commenters argued

that, in any event, state and local ethics rules do not interfere

substantially with federal law enforcement activities because only in

rare instances have federal prosecutors actually been investigated by a

state disciplinary authority.

Although an anti-contact rule is in effect in nearly all

jurisdictions, it is not interpreted uniformly. Among other things,

jurisdictions differ as to whether the anti-contact rule applies in the

investigatory stage, compare United States v. Ryans, 903 F.2d 731, 739

(10th Cir.), cert. denied, 498 U.S. 855 (1990) with United States v.

Hammad, 858 F.2d 834, 839 (2d Cir. 1988), cert. denied, 498 U.S. 871

(1990); whether the rule applies to prosecutors, compare Matter of Doe,

801 F. Supp. 478 (D.N.M. 1992) with District of Columbia Rules of

Professional Conduct Rule 4.2 cmt.  8; whether the rule applies to

former employees of a represented corporate party, compare Public Serv.

Elec. & Gas v. Associated Elec. & Gas, 745 F. Supp. 1037, 1042 (D.N.J.

1990) with Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621,

628 (S.D.N.Y. 1990); and whether the rule applies to all corporate

employees who could make admissions on behalf of the corporation or

only to employees who belong to a so-called ``control group.'' Compare

Model Rules of Professional Conduct Rule 4.2 cmt. (1983) with Wright

by. Wright v. Group Health Hosp., 691 P.2d 564 (Wash. 1984). The lack

of uniformity in interpreting existing anti-contact rules has created

concern among government attorneys of inadvertently running afoul of

state court or federal district court rules. The threat of disciplinary

proceedings (and the possible resulting loss of license and livelihood)

against a government attorney engaged in legitimate law enforcement

activities has had a chilling effect on the responsible exercise of law

enforcement duties. Many federal prosecutors who submitted comments in

connection with the earlier versions of this rule stated that they feel

compelled to refrain from authorizing or participating in legitimate

and ethical law enforcement activities because of the current

uncertainty as to the acceptability of various ex parte contacts.

To add to the confusion inherent in the current situation, the

Department's attorney staff consists of members of many different state

bars who commonly appear in multiple jurisdictions. Under the Model

Rule's approach, an attorney practicing in a jurisdiction in which he

or she is not a member of the bar remains subject to the jurisdiction

of the bar of which he or she is a member, but if the rules in the two

places differ, principles of conflict of laws may apply. Model Rules of

Professional Conduct Rule 8.5 and cmt. (1983). As a result, when state

anti-contact rules purport to govern the conduct of federal attorneys,

the question of which rule governs the conduct of Department lawyers

may often be complicated. Indeed, as was noted in the ``Background''

section of this commentary, government attorneys may be subject to

substantially different rules when they are working alongside one

another on the same case. One commenter proposed that instead of

issuing a uniform contacts rule for Department attorneys, the

Department should encourage its attorneys to practice only in a given

jurisdiction and to obtain bar membership in that jurisdiction.

However, Congress has made clear that Department attorneys should be

able to practice in different jurisdictions so long as they are a

member of some state bar, and there is a significant federal interest

in preserving the Department's ability to assign its attorneys wherever

there are law enforcement needs to be met. This uniform rule regarding

contacts with represented persons achieves consistency and high ethical

standards without hampering federal law enforcement activity.

In formulating this uniform rule, the Department has not

disregarded existing state ethics rules, as a number of comments imply.

As set forth in section 77.12, this regulation is specifically intended

to fit within the structure of DR 7-104 and Model Rule 4.2, as well as

analogous state and local district court disciplinary rules. Both DR 7-

104 and Model Rule 4.2 provide that communications that are

``authorized by law'' are exempted from the general prohibition of the

rule and, according to the Reporter for the commission that developed

the Model Rules, Yale Law School ethics professor Geoffrey Hazard, this

exception was drafted with the ``government lawyer'' problem in mind.

See Letter of January 19, 1994 from Professor Geoffrey C. Hazard, Jr.

to Chief Justice E. Norman Veasey, at 2 (``I can state from first-hand

knowledge that this [authorized by law] qualification was drafted

mindful of the government lawyer problem, among others. In my opinion

it is within the authority of the federal government, particularly the

Justice Department, to promulgate such regulations.'') (This letter and

all comments are on file with the Office of the Associate Attorney

General, United States Department of Justice). As explained later in

this commentary, the Department's position is that communications with

represented persons undertaken pursuant to this duly promulgated

regulation clearly constitute communications ``authorized by law.''

Therefore, in nearly all jurisdictions, communications approved under

the Department's rules will be appropriate under existing ethical rules

as well.

Furthermore, the content of this rule derives largely from DR 7-104

and Model Rule 4.2 and is wholly consistent with the principles

underlying these rules. This regulation grants greater latitude for

lawyer communications with a represented ``person'' during the

investigative phase of law enforcement than with a represented

``party'' after adversarial proceedings have commenced. This

distinction appears in the texts of DR 7-104 and Model Rule 4.2, which

prohibit only communications with ``a party'' the lawyer knows to be

represented by another lawyer in the matter. This distinction also

accords with the great weight of federal court interpretations of the

state ethics rules. See Ryans, 903 F.2d at 739 (``We are not convinced

that the language of [the anti-contact rule] calls for its application

to the investigative phase of law enforcement'' because ``the rule

appears to contemplate an adversarial relationship between litigants,

whether in a criminal or a civil setting''); United States v. Sutton,

801 F.2d 1346, 1365-66 (D.C. Cir. 1986) (anti-contact rule ``was never

meant to apply to [pre-indictment, non-custodial] situations such as

this one''); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983)

(agent's ``noncustodial interview of [suspect] prior to the initiation

of judicial proceedings against the appellant did not constitute an

ethical breach''); United States v. Fitterer, 710 F.2d 1328, 1333 (8th

Cir.) (anti-contact rule does not prohibit prosecutors from using

undercover informants to communicate with represented persons prior to

indictment), cert. denied, 464 U.S. 852 (1983); United States v. Jamil,

707 F.2d 638 (2d Cir. 1983) (prosecutor's use of undercover informant

in pre-indictment, non-custodial setting to communicate with

represented person does not violate DR 7-104); United States v.

Vasquez, 675 F.2d 16, 17 (2d Cir. 1982) (anti-contact rule was not

intended to prohibit use of undercover informants prior to indictment);

United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.) (``the

government's use of such investigative techniques at this stage of a

criminal matter does not implicate the sorts of ethical problems

addressed by the Code''), cert. denied, 452 U.S. 920 (1981); United

States v. Weiss, 599 F.2d 730, 739-40 (5th Cir. 1979) (prosecutor's

investigatory communications upheld against challenge under anti-

contact rule); United States v. Lemonakis, 485 F.2d 941, 953-56 (D.C.

Cir. 1973) (anti-contact rule does not apply prior to indictment, and

use of undercover informant did not violate rule in any event), cert.

denied, 415 U.S. 989 (1974); In re U.S. Dept. of Justice Antitrust

Investigation, 1992-2 Trade Cases (CCH) 69,933, at 68,469 (D. Minn.

1992) (Minnesota's Rule 4.2 held inapplicable because ``[t]he word

`parties' in Rule 4.2 indicates the presence of a lawsuit'' and ``[t]he

present controversy relates to an investigation, not a lawsuit'');

United States v. Infelise, 773 F. Supp. 93, 95 n.3 (N.D. Ill. 1991) (DR

7-104(A)(1) ``speaks in terms of communications with a `party',

suggesting that the rule is to be applied only when adversarial

proceedings have been initiated''); United States v. Western Electric

Co., 1990-2 Trade Cases (CCH) 69,148, at 64,314 & n.6 (D.D.C. 1990);

United States v. Buda, 718 F. Supp. 1094, 1096 (W.D.N.Y. 1989); United

States v. Chestman, 704 F. Supp. 451, 454 (S.D.N.Y. 1989), rev'd on

other grounds, 903 F.2d 75 (2d Cir. 1990), aff'd in part, 947 F.2d 551

(2d Cir. 1991) (en banc); United States v. Galanis, 685 F. Supp. 901,

903-04 (S.D.N.Y. 1988); United States v. Guerrerio, 675 F. Supp. 1430,

1438 (S.D.N.Y. 1987). But see United States v. Hammad, 858 F.2d 834,

839 (2d Cir. 1988) (pre-indictment communications may be improper if

accompanied by ``misconduct'' on the part of the government), cert.

denied, 498 U.S. 871 (1990); United States v. Pinto, 850 F.2d 927, 935

(2d Cir.), cert. denied, 488 U.S. 867 (1988); United States v. Sam

Goody, Inc., 518 F. Supp. 1223, 1224-25 n.3 (E.D.N.Y. 1981), appeal

dismissed, 675 F.2d 17 (2d Cir. 1982); see also Comment to ABA Model

Rule 4.2 (notwithstanding use of the term ``party,'' the rule does not

require that a person be ``a party to a formal legal proceeding'').

The courts have readily recognized that Department attorneys

engaged in criminal and civil law enforcement matters perform

distinctly different functions from attorneys engaged in the private

practice of law. The courts have further recognized that the rules

governing communications with represented persons should take account

of these differences. To disregard these differences would therefore

impose substantial and deleterious restrictions on the legitimate law

enforcement duties of Department attorneys that do not presently exist.

For much the same reasons, the Department believes that there is a

basis for distinguishing for purposes of this regulation between

Department attorneys engaged in law enforcement activities (who are

covered by this regulation) and Department attorneys engaged in civil

suits in which the United States is not acting under its police or

regulatory powers (who are not covered). One commenter proposed

extending these rules to cover also the latter activities of Department

attorneys; however, because government attorneys engaged in other,

ordinary civil litigation are not engaged in distinctly different

functions from private attorneys involved in civil cases, they are not

brought under this regulation.

Two organizations further criticized the Department for holding

government attorneys to ethical standards no higher than what the

Constitution provides. The Department agrees that the constitutional

baseline does not provide the proper measure of government attorneys'

ethical obligations. But this regulation does not purport to equate the

two standards. On the contrary, the Department's final rule imposes a

range of restrictions that go beyond those that are constitutionally

compelled. For example, the regulation prohibits government attorneys

generally from engaging in negotiations of certain specified legal

agreements with any represented individual without the consent of that

individual's counsel, even if that individual is not in custody and not

formally charged. Such communications are not constitutionally

proscribed. See Brewer v. Williams, 430 U.S. 387, 398 (1979); Miranda

v. Arizona, 384 U.S. 436 (1966). Additionally, the Department plans to

issue United States Attorneys' Manual provisions that will place

significant limits on the ability of government attorneys to engage in

noncustodial communications with a represented ``target'' of a federal

criminal or civil law enforcement investigation, even though narrowing

an investigation to focus on a particular suspect does not trigger the

suspect's right to counsel. See Hoffa v. United States, 385 U.S. 293

(1966). Therefore, in constructing these standards to guide the ethical

conduct of its attorneys, the Department has imposed ethical

restrictions on Department attorneys that extend significantly beyond

what the Constitution requires.

B. The Constitutional and Statutory Authority for the Rule. 1. The

Department's Authority To Promulgate the Rule. A number of commenters

argued that the Attorney General lacks delegated authority to

promulgate this regulation. Comments stressed that ``[n]o act of

Congress purports to authorize the Department to adopt regulations to

override state ethics rules governing lawyers,'' and that the proposed

regulation in fact is ``contrary to . . . the explicit mandate of

Congress'' that every Department attorney must get a license from a

State and maintain that license.

Rules governing the conduct of Department attorneys, or any other

officials of the Executive Branch, may be promulgated only pursuant to

constitutional or statutory authority. Congress's delegation of

authority need not be specific or explicit. Chrysler Corp. v. Brown,

441 U.S. 281, 307-08 (1979). The Department believes that it possesses

appropriate statutory authority to promulgate this regulation pursuant

to two distinct sources: 5 U.S.C. 301 (``commonly referred to as the

`housekeeping statute,''' Chrysler Corp., 441 U.S. at 309 (citation

omitted)), and title 28 of the United States Code, which in a variety

of provisions authorizes the Attorney General and the Department to

enforce federal law and to regulate the conduct of Department

attorneys.

Section 301 of title 5, United States Code, authorizes the Attorney

General to ``prescribe regulations for the government of [her]

department,'' ``the conduct of its employees,'' and ``the distribution

and performance of its business.'' 5 U.S.C. 301. The Supreme Court has

held that this provision authorizes the Attorney General to issue

regulations with extra-departmental effect. See, e.g., Georgia v.

United States, 411 U.S. 526, 536 (1973) (holding that section 301

provided the Attorney General with ``ample legislative authority'' to

issue regulations that established procedural and substantive standards

binding on state and local governments); United States ex rel. Touhy v.

Ragen, 340 U.S. 462 (1951) (federal government attorney could not be

held in contempt for following an Attorney General regulation

promulgated pursuant to a predecessor to section 301).

Title 28 of the United States Code grants the Attorney General and

the Department a variety of law enforcement powers including the power

(through intermediary officials) to conduct grand jury proceedings or

any other kind of civil or criminal legal proceeding; to conduct

litigation, and to ``secur[e] evidence'' therefor; to detect and

prosecute crimes; and to prosecute ``civil actions, suits, and

proceedings in which the United States is concerned.'' 28 U.S.C.

515(a), 516, 533, 547; see 28 U.S.C. 509, 510. The Attorney General is

also authorized to ``supervise all litigation'' to which the United

States is a party and to direct United States Attorneys and other

subordinate attorneys in the ``discharge of their respective duties.''

28 U.S.C. 519. These provisions grant the Attorney General extremely

broad authority to supervise the enforcement of federal law.

In order for a Department regulation to have the force and effect

of law, it must rest on a reasonable construction of the statutes

delegating the authority to promulgate it and must not in substance

contradict any act of Congress. See, e.g., NLRB v. United Food and

Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987); Capital

Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-700 (1989). These rules

represent the reasoned judgment of the Attorney General and of the

Department about the lawful authority of federal lawyers effectively to

investigate and prosecute crimes.

One individual and a number of organizations, including the

Conference of Chief Justices, posited that the Department is acting

outside the scope of its congressionally delegated authority because

this regulation assertedly contravenes the Department of Justice

Appropriation Authorization Act of 1979, which requires all Department

attorneys to be ``duly licensed and authorized to practice as an

attorney under the laws of a State, territory, or the District of

Columbia.'' Pub. Law No. 96-132, Sec. 3(a), 93 Stat. 1040, 1044 (Nov.

30, 1979), as carried forward by Pub. Law No. 103-121, 107 Stat. 1153,

1163 (Oct. 27, 1993) (reenacting provisions of Pub. Law No. 96-132).

These commenters suggested that when Congress required Department

attorneys to be licensed by a state bar, Congress implied that

Department attorneys should be subject to all the rules and regulations

of state authorities, regardless of their impact on officials carrying

out federal law enforcement. Therefore, this regulation, by shielding

Department attorneys from state disciplinary proceedings for violations

of state rules interfering with effective federal law enforcement, is

alleged to violate Congress's clear intent in enacting the Department's

appropriation statute.

The Department believes that these comments mistake the purpose and

effect of the congressional requirement that federal attorneys have

state licenses. That requirement, which is satisfied by admission to

the state's bar and maintenance of bar membership, simply serves to

ensure that the professional qualifications of all Department lawyers

have in fact been examined. No comment received by the Department

demonstrates that Congress intended the requirement to have the further

effect of interfering with the Attorney General's ability to ensure

effective federal law enforcement or of compelling federal attorneys to

comply with state bar ethical standards that contradict federal rules.

2. The Department's Power to Preempt State Ethics Rules. One

individual, one state court judge, and five organizations, including

the Special Committee of the Conference of Chief Justices, commented

that the Department does not have the constitutional power to preempt

state regulation of its attorneys.

It should first be noted that in most instances the force and

effect of these rules should not depend on whether they preempt state

ethics rules under the Supremacy Clause. As already noted,

communications within the scope of the regulation are intended to

constitute communications that are ``authorized by law'' within the

meaning of DR 7-104, Model Rule 4.2, and analogous disciplinary rules.

Therefore, if the relevant state rule contains an authorized-by-law

exception, this regulation should be seen as constituting such

authorization, thereby bringing any attorney communication permissible

under these rules in conformity with that state law and eliminating the

Supremacy Clause issue.

The Committee of Chief Justices commented that it is the exclusive

province of the state supreme courts to construe state disciplinary

rules and to determine whether this regulation falls within the

``authorized by law'' exception to these rules. The Department has

simply expressed its intention to fit communications made pursuant to

these rules within the ``authorized by law'' exception to state and

local federal court rules, and its belief that this regulation indeed

constitutes legal authorization for such communications. The Department

notes that it would seem to require a very strained reading to conclude

that a regulation duly promulgated after notice and comment and within

the scope of its delegated authority does not also constitute ``law.''

Cf. Chrysler Corp., 441 U.S. at 295-96 (1979) (``It has been

established in a variety of contexts that properly promulgated

substantive agency regulations have the `force and effect of law.'. . .

It would therefore take a clear showing of contrary legislative intent

before the phrase `authorized by law' in [18 U.S.C.] Sec. 1905 could be

held to have a narrower ambit than the traditional understanding.''

(citation omitted)).

However, the Department recognizes that situations may arise in

which the power of this regulation to displace state rules will depend

on its preemptive force under the Supremacy Clause. Such situations may

arise in several forms: where the applicable ethics rule has no

``authorized by law'' exception; where this regulation is deemed not to

constitute ``law'' for purposes of such exception; or where a

communication is held to violate the applicable ethics rule and not be

``authorized'' by this regulation. Therefore, an important feature of

this regulation is its express intention to preempt and supersede the

operation of state and local federal court rules as they relate to

contacts by Department attorneys, regardless of whether such rules are

inconsistent or consistent with this regulation, absent a finding of a

willful violation of these rules by the Attorney General.

The preemption of state regulation of contacts with represented

persons, except when the Attorney General has found a willful violation

of the federal regulation, was an integral feature of this rule as

proposed earlier. The proposed rule reflected the Department's belief

that preemption of state and local rules, which have been unevenly

applied, is necessary to ensure that government attorneys' conduct

respecting ex parte contacts is subject to uniform and predictable

standards. The Department has made minor revisions to section 77.12 to

clarify that the Department's intent is to displace even purportedly

consistent state regulation in this area (or, as it is commonly

phrased, to ``occupy the field'' of reviewing ex parte contacts by

Department attorneys). The rules and this commentary now state in more

express terms the Department's intention to preclude any state

regulation of government attorneys respecting the subject matter of

these rules, unless the Attorney General first finds a willful

violation of these rules.

Several comments suggested that the Attorney General lacks the

authority to preempt state disciplinary rules, absent an explicit

Congressional authorization to do so. These comments misconceive the

power of a federal agency or department to preempt state regulation.

Congress may, of course, expressly preempt all state regulation in a

particular field, see Rice v. Sante Fe Elevator Corp., 331 U.S. 218,

247, 255 (1947); accord Jones v. Rath Packing Co., 430 U.S. 519, 536-37

(1977), and, in proper circumstances, a federal agency similarly ``may

determine that its authority is exclusive and preempts any state

efforts to regulate in the forbidden area.'' City of New York v. FCC,

486 U.S. 57, 64 (1988). See generally Fidelity Federal Sav. & Loan

Ass'n v. De La Cuesta, 458 U.S. 141, 153-54 (1982) (``[f]ederal

regulations have no less pre-emptive effect than federal statutes''

under the Supremacy Clause); Hillsborough County, Fla. v. Automated

Med. Labs, 471 U.S. 707, 713 (1985) (``We have held repeatedly that

state laws can be pre-empted by federal regulations as well as by

federal statutes.''). A federal agency may preempt state regulation

whenever the agency, in doing so, is acting within the proper scope of

its congressionally delegated authority. Louisiana Public Serv. Comm'n

v. FCC, 476 U.S. 355, 368-69 (1986). Accord City of New York, 486 U.S.

at 64 (``if the agency's choice to pre-empt `represents a reasonable

accommodation of conflicting policies that were committed to the

agency's care by the statute, we should not disturb it unless it

appears from the statute or its legislative history that the

accommodation is not one that Congress would have sanctioned'''

(citation omitted)). Thus, contrary to the commenters' suggestion,

``[a] preemptive regulation's force does not depend on express

congressional authorization to displace state

law . . . .'' Fidelity Federal Sav. & Loan Ass'n, 458 U.S. at 154.

In promulgating this regulation, the Department is acting within

the scope of its discretionary authority. The ample consideration given

to this regulation and its earlier versions reflects the Department's

effort reasonably to accommodate the relevant policies concerning law

enforcement and professional conduct, and, as discussed in the previous

section, there is no basis for concluding that the Department has

exceeded its statutory authority. Moreover, the purpose of these rules,

as defined in section 77.1, is to ``ensure the Department's ability to

enforce federal law effectively and ethically'' and so fulfill the

Department's statutory responsibilities. See Capital Cities Cable, Inc.

v. Crisp, 467 U.S. 691, 700 (1984) (authority to regulate extends to

all regulatory actions necessary to ensure the achievement of statutory

responsibilities).

The ``presumption against finding preemption of state law in areas

traditionally regulated by the States,'' California v. ARC America

Corp., 490 U.S. 93, 101 (1989), and the traditional state regulation of

legal practice and lawyers' ethics, Leis v. Flynt, 439 U.S. 438, 442

(1979), does not foreclose the Attorney General from concluding that it

is appropriate here to displace those state rules that regulate the

conduct of federal officials in the performance of their law

enforcement duties. Here, the presumption against preemption is

overcome by this regulation's express preemption provision, which is

fully effective even in matters traditionally occupied by the states.

Furthermore, under the intergovernmental immunity doctrine, states

may not directly regulate or punish federal officials for acts

undertaken in their official capacities, or otherwise substantially

interfere with the lawful functions of federal officials. See, e.g.,

Hancock v. Train, 426 U.S. 167, 178-79 (1976); M'Culloch v. Maryland,

17 U.S. (4 Wheat) 316, 437 (1819); Ethical Restraints of the ABA Code

of Professional Responsibility on Federal Criminal Investigations, 4B

Op. O.L.C. 576, 601-02 (1980). ``An officer of the United States

cannot, in the discharge of his duty, be governed and controlled by

state laws, any further than such laws have been adopted and sanctioned

by the legislative authority of the United States.'' Bank of the United

States v. Halstead, 23 U.S. (10 Wheat.) 51, 63 (1825). Contacts covered

by this regulation fall within the scope of federal attorneys' duties

to carry out the law enforcement activities of the United States. The

application to those attorneys of state ethics laws prohibiting such

conduct therefore would constitute interference with the activities of

the federal government forbidden by the intergovernmental immunity

doctrine.

For the foregoing and other reasons, the Department believes that

this regulation effectively preempts state ethical rules regarding

contacts with represented persons.

3. The Department's Authority to Supersede Federal District Court

Rules. Most federal district courts have adopted as local federal

district court rules one of the two sets of ABA rules or a similar

anti-contact rule of the state in which the district court sits. See

Rand v. Monsanto Co., 926 F.2d 596, 601-603 (7th Cir. 1991). Such

adoption gives the state rules the force of federal law. See United

States v. Hvass, 355 U.S. 570, 575 (1958). One individual and two

organizations commented that this regulation, if promulgated, would

abrogate the primary authority of federal courts to regulate the

conduct of attorneys arising out of federal law enforcement

proceedings.

The Department views this concern as significant but essentially

theoretical, because the regulation has been crafted so that it will

not operate in a way that puts it into conflict with local district

court rules. However, in response to these comments, it should be noted

that through this regulation the Department does intend not only to

preempt the application by state courts of state rules relating to

contacts by attorneys for the government, but also to supersede the

application by federal courts of the local federal district court rules

relating to contacts by government attorneys in civil and criminal law

enforcement investigations and proceedings. See Sec. 77.12 and

accompanying commentary.

There are two reasons why the promulgation and operation of this

regulation is unlikely to present the issue of abrogation of federal

court authority identified by these commenters. The first is that the

regulation adopts the line of analysis adopted by the great weight of

authority interpreting local district court rules governing contacts

with represented persons. See United States v. Ryans, 903 F.2d 731, 739

(10th Cir.) (discussing cases), cert. denied, 498 U.S. 855 (1990). The

Department has not sought in this regulation to validate conduct that

would otherwise be invalid under most local district court rules.

In addition, nearly all district courts that have adopted local

rules governing contacts with represented persons have incorporated the

``authorized by law'' exception in the Model Rules or in the

corresponding state rule. See generally Rand, 926 F.2d at 601-603. As

explained above, this regulation constitutes ``law'' within the meaning

of any such exception. Thus, the conduct this regulation authorizes is

for that reason equally authorized by these local district court rules.

Thus, this regulation in practice should not present any tension

between the federal executive and judicial powers. In response to the

commenters' suggestion that any tension would have to be resolved in

favor of the judicial power, however, the Department disagrees. Were

the issue to arise, it would be properly considered, as an initial

matter, as a question of the proper exercise of delegated legislative

authority. Congress, not the courts, has the primary power to prescribe

rules for the federal courts. See Palermo v. United States, 360 U.S.

343, 353 n. 11 (1959); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10

(1941). See generally Hanna v. Plumer, 380 U.S. 460, 472-73 (1965). In

the case of this regulation, Congress has delegated that authority by

statute to the Attorney General. This regulation therefore has no less

legal force than, for example, the Federal Rules, which derive their

ultimate authority from legislation. See 28 U.S.C. Secs. 2071 et seq.

Local district court rules, even those dealing with attorney

discipline, may not displace legislatively-authorized national rules of

procedure. Rand, 926 F.2d at 600 (Rules of Civil Procedure). Accord,

Baylson v. Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 107

(3d Cir. 1992) (Rules of Criminal Procedure). A local rule inconsistent

with a regulation lawfully issued under statutory authority is, as a

matter of law, inconsistent with the underlying statute, and must yield

to Congress's paramount authority as delegated to the department or

agency issuing the regulation. Thus, the conclusion that the Attorney

General has the statutory authority to promulgate the proposed

regulation entails the further conclusion that the regulation displaces

inconsistent local federal court rules.

Furthermore, the regulation has been carefully drawn in such a way

so that once a person has been brought before a court, in general no

substantive communication can occur without the consent of counsel

unless: the court finds a knowing, intelligent, and voluntary waiver;

the communication is made pursuant to court-approved discovery

procedures; or the communication concerns a criminal or civil offense

different from the offense before the court. The regulation thus

accords substantial and appropriate deference to the court's

supervisory authority over the parties and proceedings before it.

Moreover, this regulation does not purport to disturb the authority of

federal courts to fashion appropriate remedies when an ex parte contact

violates the Constitution. See Sec. 77.11(b) and accompanying

commentary. Therefore, federal courts will retain significant powers

under the Constitution to respond to or sanction improper ex parte

contacts by government attorneys with represented parties.

The balance of the regulation regulates contacts with persons who

are not before the court, and as to whom the supervisory authority of a

federal court is, at best, attenuated. See, e.g., United States v.

Payner, 447 U.S. 727, 735 n. 7 (1980) (``The supervisory power merely

permits federal courts to supervise the administration of criminal

justice among the parties before the bar.''); United States v.

Williams, 112 S. Ct. 1735, 1742 (1992) (federal court has no

``supervisory'' judicial authority to prescribe standards of

prosecutorial conduct before the grand jury in the first instance). It

would raise significant separation of powers concerns for a district

court to assert supervisory authority to regulate and sanction the

conduct of executive branch attorneys when the Attorney General has

adjudged such conduct legitimate and necessary for law enforcement

purposes, when that judgment has been embodied in a duly promulgated

regulation, and when the conduct concerns persons who have not yet come

before the court.

C. Sufficiency of Internal Enforcement Mechanisms. Four

organizations and two individuals commented that these rules, as

proposed, lacked enforcement mechanisms sufficient to deter prohibited

communications. These comments took two forms: (1) a general suggestion

that the Department could not be trusted to police itself (or as, one

commenter put it, it would be a case of ``the fox maintain[ing] . . .

guard over the hen-house''); and (2) a specific concern that the

restrictions to be placed in the United States Attorneys' Manual would

not in fact be enforced against Department attorneys who violated them.

The Attorney General has exclusive authority over any violations of

these rules. As a general matter, violations of these rules will be

addressed as matters of attorney discipline by the Department, rather

than by any external disciplinary authority. Only if the Attorney

General finds a willful violation of these rules may sanctions for the

violations be imposed by a state disciplinary authority. This

disciplinary structure reflects the Department's belief that allowing

sanctions to be issued independent of the Department's internal review

process would frustrate the Department's efforts to eliminate the

current uncertainty arising from the differing interpretations of the

various anti-contact rules by federal courts, state courts, and state

disciplinary authorities. The Department intends fully to enforce these

rules and to issue appropriate and strong sanctions for any violation

of these rules.

The Department also disagrees with those comments that suggest that

the provisions the Department currently intends to add to the United

States Attorneys' Manual will not be enforced. The Manual contains a

great number of significant Department of Justice policies, many of

which impose substantial restrictions on Department attorneys. There is

no evidence that such policies are routinely overlooked by Department

attorneys or that violations of policies set forth in the Manual are

not regarded by the Department as serious breaches of professional

duties. On the contrary, the failure to follow such policies is taken

very seriously. The Department expects its attorneys involved in

criminal or civil law enforcement to follow all provisions in the

Manual amendments that it intends to issue regarding ex parte contacts.

Failure to follow such rules will result in appropriate discipline by

the Department.

V. Section-by-Section Analysis

Section 77.1: Purpose and Authority

Comments relating to this section are addressed in the ``General

Comments'' section above. No changes have been made to this section.

Section 77.2: Definitions

The following terms are defined in section 77.2 of this part. In

the final rule, unlike in the proposed rule, these terms are arranged

alphabetically for the reader's ease.

a. ``Attorney for the government.'' The term ``attorney for the

government'' includes virtually all Department of Justice attorneys

with investigative, litigative, or management responsibilities,

regardless of title. It does not, however, include law enforcement

agents employed by the Department of Justice who are also members of

state bars, if they are employed as, and are performing the function

of, agents rather than attorneys. The Federal Bureau of Investigation,

Drug Enforcement Agency and other investigative agencies have long

recruited individuals with advanced degrees--including, for example,

engineering, business, and law degrees--to serve as agents. The

Department strongly encourages the recruitment of educated and

specially-trained individuals for positions as agents. An agent's bar

membership should not adversely affect his or her ability to conduct

comprehensive investigations and otherwise to fulfill his or her law

enforcement functions. Therefore, the rule specifically exempts

attorney-agents from its scope if they are employed by the government

as investigative agents and not as attorneys.

The term also does not include attorneys for departments or

agencies outside the Department of Justice, regardless of their

litigative authority, except to the extent such persons have been

specially appointed pursuant to 28 U.S.C. 515 or 543.

Two Department of Justice components commented that the definition

of ``attorney for the government,'' which explicitly covers attorneys

employed in the six main divisions of the Department, should be amended

to cover all attorneys working in the legal offices of the various

Department agencies, such as the Drug Enforcement Administration and

the Federal Bureau of Investigation. The Department agrees that the

definition of ``attorney for the government'' should not distinguish

between attorneys employed in the Department's divisions and attorneys

employed in the Department's agencies, given that both sets of

attorneys exercise similar functions and responsibilities with respect

to criminal investigations and prosecutions. Accordingly, the

definition of ``attorney for the government'' has been modified to

include explicitly ``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 Legal Counsel Division of

the FBI, and, in addition, any attorney employed in, or head of, any

other legal office in a Department of Justice agency.''

b. ``Civil Law Enforcement Investigation.'' This term includes any

investigation of potential civil violations of, or claims under,

federal law that may form the basis of a civil law enforcement

proceeding, as defined in paragraph 77.2(c).

c. ``Civil Law Enforcement Proceeding.'' The term ``civil law

enforcement proceeding'' encompasses a variety of activities beyond the

particular areas identified in the definition, which are intended only

to be illustrative.

The exclusion of proceedings related to the enforcement of an

administrative subpoena or summons or a civil investigative demand

(CID) is intended to ensure that the filing of such a proceeding does

not trigger the limitations of section 77.5, which generally prohibits

ex parte communications once adversary proceedings have commenced

against a represented ``party.'' Thus, the filing by the United States

of a proceeding to enforce a subpoena, summons, or CID will not

prohibit further investigatory communications regarding the underlying

substantive violations.

The final sentence of paragraph 77.2(c)(2) ensures that the United

States need not be the plaintiff in order for a civil action to be

``brought by the United States,'' but may be a counterclaimant or

cross-claimant if the counterclaim or cross-claim otherwise fits within

the description of civil law enforcement.

d. ``Cooperating witness or individual.'' A ``cooperating witness

or individual'' is defined to include informants, witnesses, and other

persons who are not law enforcement agents, but only to the extent that

such a person is acting ``to assist the government in an undercover or

confidential capacity.''

e. ``Employee.'' The term ``employee'' is not limited to its

literal meaning, but also includes officers, directors, partners,

members, and trustees. See Sec. 77.10 (communications involving

organizations). An independent contractor would not be considered an

``employee'' for purposes of these rules.

f. ``Organization.'' The term ``organization'' includes any

corporation, partnership, association, joint-stock company, union,

trust, pension fund, unincorporated organization, state or local

government or political subdivision thereof, or non-profit

organization. It does not, of course, include groups of individuals

``associated in fact'' within the meaning of the racketeering statutes.

See 18 U.S.C. 1961(4).

Communications with organizations and their employees are governed

generally by section 77.10.

g. ``Person.'' The term ``person'' includes individuals and

organizations as defined in paragraph 77.2(f).

h. ``Undercover investigation.'' Under this definition, the

hallmark of an ``undercover operation'' is an investigation in which an

individual ``whose identity as an official of the government or a

person acting at the behest thereof is concealed or is intended to be

concealed.'' This definition is intended to be read broadly to include

every type of law enforcement investigation in which the identity of a

government employee, or the fact that an individual is cooperating with

the government, is concealed.

Section 77.3: Represented Party; Represented Person

This section differentiates between a represented ``party'' and a

represented ``person.'' This distinction is fully consistent with the

language of and principles underlying DR 7-104(a)(1) and Model Rule

4.2, which establish general prohibitions against ex parte contacts

with a represented ``party.'' Section 77.5 of this part generally

prohibits government attorneys from initiating ex parte contacts with

represented parties, but does not prohibit ex parte contacts with

represented persons. (However, sections 77.8 and 77.9 also prohibit

certain contacts with represented persons).

An individual is considered to be a ``represented party'' under

paragraph 77.3(a) if: (1) the person is represented by counsel; (2) the

representation is current and concerns the subject matter in question;

and (3) the person has either been arrested or charged in a federal

criminal case or is a defendant in a civil law enforcement proceeding

concerning the subject matter of the representation. If the person is

currently represented in fact regarding the subject matter in question,

but has not been charged or arrested, that person is considered a

``represented person.'' Thus, witnesses, suspects, and targets of

investigations who have not been indicted or arrested, but are

represented regarding the subject matter in question, are considered

represented persons under this rule.

Several commenters argued that this section's basic distinction

between represented ``persons'' and represented ``parties'' runs

counter to the policy considerations underlying DR 7-104(A)(1) and

Model Rule 4.2. However, as discussed in the ``General Comments''

section, this distinction is consistent with the vast majority of

federal court opinions interpreting DR 7-104(A)(1) and Model Rule 4.2.,

as well as the text of those rules. Furthermore, this distinction is

grounded in logic and common sense, given the legitimate necessity for

attorneys for the government to be able to direct agents and

cooperating witnesses to contact represented persons during undercover

investigations.

One organization commented that prosecutors will hold back on

filing formal charges in order to maximize their ability to communicate

with represented ``persons.'' The Department does not agree that

prosecutors are likely to engage in this kind of systematic

manipulation. The capacity to do so exists under the Sixth Amendment

(given that the Sixth Amendment right to counsel attaches only once

formal charges are filed, see Brewer v. Williams, 430 U.S. 387, 398

(1979)), but there is no evidence of systematic prosecutorial abuse of

the charging process under the Sixth Amendment. Furthermore, the

Department intends to add a new provision to the United States

Attorneys' Manual that will prohibit a Department attorney from

communicating overtly with a ``target'' of an investigation before he

or she is formally charged or named as a civil defendant, except in

specifically enumerated circumstances.

Section 77.4: Constitutional and Other Limitations.

This section makes clear that this regulation does not purport to

authorize any communication prohibited by the Constitution or any

federal statute or Federal Rule of Criminal or Civil Procedure.

Although these rules do not supersede the Federal Rules of Civil

Procedure and the Federal Rules of Criminal Procedure, this limitation

does not extend to other rules regarding procedure in federal courts.

Thus, rules of procedure adopted by individual courts as local rules,

many of which incorporate state bar rules, are not included in this

limitation; and, in fact, this regulation is explicitly intended to

supersede local federal court rules regarding ex parte contacts by

attorneys for the government. See Sec. 77.12 and accompanying

commentary.

No specific comments were received regarding this section, and it

has not been changed.

Section 77.5: General Rule for Civil and Criminal Enforcement;

Represented Parties

This section closely tracks the language of DR 7-104(A)(1) and

Model Rule 4.2 and applies similar prohibitions to attorneys for the

government. The section prohibits an attorney for the government from

communicating with a represented party, as defined in section 77.3,

about the subject matter of the representation without the consent of

that individual's attorney. As with DR 7-104(A)(1) and Model Rule 4.2,

the prohibition applies only if the attorney for the government knows

that the represented party is, in fact, represented by counsel.

Therefore, communications by an attorney for the government with a

represented party will not violate this rule if the attorney for the

government is unaware of the fact of representation.

This section also prohibits an attorney for the government from

causing another individual to communicate with a represented party.

Accordingly, this rule proscribes an attorney from directing a

government investigator to do what the attorney himself or herself is

prohibited from doing. Conversely, a government attorney will not be

personally responsible for the actions of agents in communicating with

represented persons unless, in doing so, the agents were acting as the

attorney's ``alter ego.'' See United States v. Heinz, 983 F.2d 609,

612-14 (5th Cir. 1993).

It also should be noted that this provision is violated (and thus,

a basis for departmental discipline exists) when an inappropriate

communication takes place, regardless of whether or not the

communication results in eliciting an inculpatory statement or is

otherwise prejudicial to the represented party.

No specific comments were received regarding this section, and it

has not been changed.

Section 77.6: Exceptions; Represented Parties

This section describes the circumstances under which Department

attorneys may communicate, or cause others to communicate, with a

represented party whom the Department attorney knows is represented

concerning the subject matter of the representation, without first

obtaining the consent of the represented party's counsel.

Paragraph (a): Determination if representation exists.

This exception recognizes the fact that there is no reason to

prohibit a limited inquiry about whether an individual is, in fact,

represented by counsel regarding the relevant subject matter. Such an

inquiry does not involve the kind of communication about which courts

have expressed concern and has little potential for undermining the

attorney-client relationship. It is also consistent with DR 7-104(A)(1)

and Model Rule 4.2.

There may be uncertainty about the existence of representation with

respect to whether it has been established, whether it may have been

terminated, and whether a particular subject falls within the scope of

the representation. The first issue typically arises before a judicial

or other appearance, when the government attorney has some information

suggesting that the person may be represented. It also may arise when

an attorney purports to represent a group of persons, such as all the

employees of a corporation. Uncertainty about the termination of the

representation may arise when substantial time has passed since it was

made known that the person was represented by counsel or when the

attorney for the government has reason to believe that the

representation has ceased. It is unlikely, however, that such

uncertainty will arise when there are pending judicial proceedings,

because in such circumstances the court in most jurisdictions must

approve termination of representation.

In response to one comment, it is worth clarifying that that

representation is presumed to cease to be current for purposes of these

rules when the matter in question has reached a final judgment (i.e.,

once the direct appeals process, including any petition for certiorari,

has run its full course), unless there is reason to believe that

representation is continuing.

When inquiring about the status of representation, government

attorneys and agents generally must refrain from stating whether it is

necessary or desirable to be represented by counsel. After the right to

counsel has attached, a statement or implication suggesting that

counsel is not providing proper or effective representation could

violate the Sixth Amendment right to effective assistance of counsel.

See United States v. Morrison, 449 U.S. 361, 364 (1981).

One organization commented that the right to inquire whether a

party is represented by counsel is an invitation to a more substantive

conversation with a represented party with respect to the matter

underlying the representation, which would violate these rules. The

Department does not agree that this paragraph creates a significant

potential for abuse. This exception, which is clear in its terms,

allows Department attorneys to do no more than determine whether a

person is in fact represented by counsel. The Department expects that

all Department attorneys will understand the limited parameters and

purpose of this exception, and any attempt to use this paragraph to

gather additional information about the subject matter of the

representation would be a clear violation of these rules and would

constitute sanctionable conduct.

Paragraph (b): Discovery or judicial or administrative process.

Any communication that is authorized by discovery procedures, such

as a deposition of a party-opponent, or by judicial or administrative

process, such as a grand jury, deposition, or trial subpoena or an

administrative summons, obviously should not be prohibited by any rule.

See United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir. 1989), cert.

denied, 493 U.S. 1071 (1990) (prosecutor's questioning of represented

person before the grand jury outside the presence of counsel is

``authorized by law'' under DR 7-104). Among other reasons for this

exception, a person who is served with process has an opportunity to

consult with counsel prior to his or her appearance at the proceeding,

and may have counsel present if desired during the proceeding (except,

of course, while testifying before a grand jury). More generally,

communications authorized by discovery procedures already have in place

appropriate mechanisms for protection of the attorney-client

relationship. This provision ensures that this regulation does not

prevent such communications from continuing to be allowed.

This exception does not purport to authorize any communications not

otherwise available pursuant to approved discovery procedures or legal

process. However, one individual commented that the text of paragraph

(b), as proposed in March 1994, might be construed to authorize certain

discovery procedures--such as the taking of a party's deposition

testimony in the absence of the party's attorney and without the

attorney's prior agreement--even where such practice was not in

accordance with the rules of the applicable tribunal. To clarify that

this paragraph's intent is to authorize only approved discovery

procedures or legal process, this paragraph has been amended in the

final rule to exempt only those communications made pursuant to

discovery procedures or legal process ``in accordance with the orders

or rules of the court or other tribunal where the matter is pending.''

Paragraph (c): Initiation of communication by represented party.

This paragraph sets out the circumstances under which it is proper

for a government attorney to communicate with a represented party who

has initiated contact, without the consent of that party's counsel.

A defendant may wish to communicate with the government outside the

presence of counsel for many valid reasons. For instance, a defendant

may wish to cooperate with the government but not want his or her

attorney to know for fear that the attorney will disclose the

defendant's intentions to others. This situation may arise, for

example, when the defendant's attorney is being paid by another

individual involved in a criminal enterprise, and the defendant

questions whether he or she has the attorney's undivided loyalty. The

same problem may arise when a single attorney represents multiple

parties who are part of the same criminal enterprise.

When the desire of a defendant or arrestee to speak with the

attorney for the government outside the presence of his or her counsel

is ``voluntary, knowing, and informed,'' there is no valid reason to

prohibit the government from engaging in such communications. In fact,

the Department believes that it would be a dereliction of its

obligation vigorously to enforce federal law if it promulgated a rule

that would prohibit such communications.

It is well established that an individual who is entitled to

counsel under the Fifth Amendment or the Sixth Amendment may waive that

right and choose to communicate with the government outside the

presence of his or her attorney, ``provided the waiver is made

voluntarily, knowingly and intelligently.'' Moran v. Burbine, 475 U.S.

412, 421 (1986) (internal quotations omitted); Patterson v. Illinois,

487 U.S. 285, 292 (1988); Brewer v. Williams, 430 U.S. 387, 404-06

(1977). In such a situation, the defendant should not be prohibited

from engaging in communications that are allowed by the Constitution by

a disciplinary rule that was intended to protect that individual in the

first place. Neither common sense nor the principles underlying DR 7-

104 and Rule 4.2 requires such a result.

This paragraph includes procedural protections designed to ensure

that such waivers are in fact voluntary, knowing, and informed. After a

represented individual has been arrested or charged in a criminal

proceeding or is named as a defendant in a civil law enforcement

proceeding, this paragraph requires that several steps be taken before

a government attorney may engage in a substantive discussion with the

represented party. First, the government attorney must inform the

individual of his or her right to speak through his or her attorney and

to have that attorney present for any communications with the

government attorney. Second, the represented party must manifest his or

her desire to waive the right to counsel in a voluntary, knowing, and

informed way. If at all possible, the attorney for the government

should obtain a signed written waiver. Third, the attorney for the

government must bring the matter before the appropriate district court

judge, magistrate judge, or other tribunal of competent jurisdiction.

Then, it is up to the court to determine that the waiver satisfies the

provisions of this rule or that substitute counsel is in place

(including counsel appointed at that time by the court) who has

consented to the communication.

This paragraph does not require, however, that the waiver must

always take place before the judge or magistrate judge. In exceptional

circumstances, it may be impractical or unsafe to bring the defendant

before a judge or magistrate judge to secure the waiver. In such

circumstances, the government attorney may secure a waiver from the

defendant outside the court, and, before any substantive discussion

between the defendant and the government takes place, bring evidence of

the waiver to the court so that the court can determine whether the

waiver was made knowingly, intelligently, and voluntarily.

One United States Attorney's Office commented that paragraph (c),

as proposed, appeared to require an attorney first to obtain an

informed waiver and only after receiving such a waiver to bring the

matter before the appropriate tribunal. The Department does not intend

to require (and does not understand the text of paragraph (c) to

require) an attorney for the government, when contacted by a

represented party, necessarily to attempt to secure a waiver himself or

herself before bringing the matter to the attention of the court. A

government attorney who is contacted by a represented party may,

consistent with this paragraph, choose to bring the matter directly to

the attention of the court, assuming the represented party has

manifested his or her desire to waive the right to counsel. The court

then would determine whether the party wishes to waive the presence of

counsel for the communication. In general, however, the usual practice

is for the government attorney to obtain from the represented party a

waiver before bringing the matter before the court.

As noted above, the initiation of ex parte contacts by represented

parties frequently occurs in the context of the ``fearful defendant''

whose attorney has been chosen by a third party, often an individual

above the defendant in the criminal hierarchy. Such a defendant may

wish to cooperate with the government but may fear that his life or

safety will be endangered if his attorney learns of the cooperation.

Although the need for a mechanism by which a represented party can

initiate contacts with the government is particularly acute in this

context, paragraph (c) is not limited to this setting. Rather, the

proper inquiry is whether the represented party's waiver of the right

to counsel is voluntary, knowing, and informed, not whether the

represented party has established some overriding justification for his

or her decision.

One organization objected to the extension of this exception to

anyone other than a ``fearful defendant,'' suggesting that any other

client will have no better reason to initiate communication than ``a

misguided belief that he can help himself by talking to the

prosecutor.'' The Department believes that it would be overly

paternalistic to refuse to permit any but fearful represented parties

to initiate direct contact with the government. Given that a criminal

defendant has a constitutional right to decline legal representation

entirely, see Faretta v. California, 422 U.S. 806 (1975), government

attorneys should not be ethically bound to refuse to listen to a

criminal defendant who chooses to decline the presence of counsel for

purposes of a particular communication with appropriate court approval.

Additionally, it would be neither workable nor proper to require a

Department attorney or judicial officer to probe the client about his

or her relationship with counsel in order to ascertain whether the

client is genuinely fearful, or fearful enough, of his or her

attorney's involvement to justify a conversation outside the presence

of counsel. Such an inquiry would tend to enhance, not minimize,

intrusion into the attorney-client relationship. A more reliable

protection of the client's interest and of the attorney-client

relationship is this paragraph's careful process of testing the

client's desire (as opposed to the client's reasons) for waiving the

presence of counsel. This is the same analysis the courts undertake in

assessing waivers of the constitutional rights to counsel or against

self-incrimination. The proper issue in such a setting, as here, is

whether the waiver is knowing, intelligent, and voluntary.

Another commenter opined that paragraph (c), by allowing

represented parties to waive the presence of counsel and speak directly

to a government attorney, would authorize a violation of the

represented party's constitutional rights under Miranda v. Arizona, 384

U.S. 436 (1966), and its progeny. Cases following Miranda provide that

custodial interrogation must cease whenever the person in custody

invokes his or her right to have counsel present. See, e.g., Edwards v.

Arizona, 451 U.S. 477 (1981). However, the prohibition against further

interrogation does not apply when the accused himself or herself

initiates further communication, see id. at 484-86, which would need to

be the case for this paragraph to apply.

Paragraph (d): Waivers at the time of arrest.

The previous paragraph (paragraph (c)) provides the general

guidelines regarding how a represented party may waive protections

otherwise provided under this regulation. This paragraph provides for a

different rule dealing specifically with a waiver at the time of

arrest.

This paragraph provides that a government attorney may communicate

directly with a represented party ``at the time of arrest of the

represented party'' without the consent of that party's counsel,

provided that the represented party has been fully informed of his or

her constitutional rights at that time and has waived them. The

government attorney need not comply with any of the additional

requirements of paragraph (c) in such a situation.

A substantial body of law has developed regarding waiver of

constitutional rights in the immediate post-arrest setting. The

Department believes that the constitutional protections established in

that decisional law adequately protect represented individuals

following arrest. Furthermore, the effectiveness of post-arrest

interviews would be significantly curtailed if the procedural

requirements of paragraph (c) applied. Accordingly, this paragraph is

intended to preserve this investigative tool without adding any

additional procedural requirements.

The Department received two comments regarding this paragraph: one

relating to the timing of the waiver, and the other relating to the

terms of the waiver.

A Department component commented that it would clarify the meaning

of a communication ``at the time of the arrest of the represented

person'' to add to the text that such communication must be made ``at

the time of the arrest of the represented party before he or she is

presented to a judicial officer with respect to that arrest . . . .''

The Department has decided against adopting the proposed additional

language, because it would unadvisedly extend this exception beyond its

proper and intended narrow limits. This exception to the general rule

against post-arrest communications is designed to preserve the ability

of government attorneys to interview individuals immediately (i.e.,

within hours) following arrest as an effective and important law

enforcement tool. See, e.g., 18 U.S.C. 3501(c). It is not intended to

allow government attorneys to attempt to initiate communications with

an arrested person any time before the person is presented to a

judicial officer, which can extend days beyond the ``time of arrest.''

The Department believes that such an extension of this limited

exception could put excessive pressure on clients and unduly intrude

upon the attorney-client relationship.

A United States Attorney's Office commented that proposed paragraph

(d), under which the represented party must be advised of and waive

``his or her constitutional rights,'' could be construed to require the

represented party to be explicitly told that he or she has a right to

his or her attorney, and not just that he or she has a right to an

attorney (as required by Miranda v. Arizona, 384 U.S. 436 (1966)). This

paragraph is intended to apply whenever an arrested person is read his

or her Miranda rights and waives those rights; it is not intended to

require the represented party to be apprised of his right to counsel in

any different or more specific terms than Miranda and its progeny

require. To make clear that the usual Miranda warnings and waiver

suffice for purposes of this section, paragraph 77.6(d) has been

amended in the final rule to read as follows: ``The communication is

made at the time of the arrest of the represented party and he or she

is advised of his or her rights under Miranda v. Arizona, 384 U.S. 436

(1966), and voluntarily and knowingly waives them.''

Paragraph (e): Investigation of additional, different, or ongoing

crimes or civil violations.

The Sixth Amendment right to counsel is ``offense-specific.''

McNeil v. Wisconsin, 111 S. Ct. 2204, 2207 (1991). Thus, a defendant

whose Sixth Amendment rights have attached as to one offense remains

subject to questioning, whether direct or covert, regarding uncharged

crimes. Id.; Maine v. Moulton, 474 U.S. 159, 180 n.16 (1985); United

States v. Mitcheltree, 940 F.2d 1329, 1342 (10th Cir. 1991); United

States v. Terzado-Madruga, 897 F.2d 1099, 1111-12 (11th Cir. 1990);

United States v. Chu, 779 F.2d 356, 368 (7th Cir. 1985); United States

v. Grego, 724 F.2d 701, 703 (8th Cir. 1984). The proposed rule employs

an analogous approach, permitting ex parte contacts with a represented

party if the contacts involve the investigation of offenses as to which

the represented party has been neither arrested nor charged in a

criminal or civil law enforcement proceeding. The Department believes

this approach is wholly consistent with DR 7-104 and Model Rule 4.2 and

the cases interpreting those rules.

Accordingly, this section provides that communications may be made

in the course of investigations of additional, different, or ongoing

criminal or unlawful activity, even though the individual is

represented by counsel with respect to conduct for which he or she has

already been arrested or charged. Such additional criminal or unlawful

conduct is typically one of three varieties: (1) conduct that is

separate from the original wrongful conduct; (2) crimes or unlawful

conduct that are intended to impede the administration of justice or

the trial of the charged crime, such as subornation of perjury,

obstruction of justice, jury tampering, or murder, assault, or

intimidation of witnesses; and (3) conduct that is a continuation of

the charged crime, such as a conspiracy or a scheme to defraud that

continues past the time of indictment. The new or additional criminal

or wrongful activity may have occurred in the past or may be ongoing at

the time of the investigation.

One organization objected to this section's coverage of criminal or

wrongful activity that has already been completed at the time of the

communication, as distinct from activity that is ongoing. However, the

Department sees no basis in the policies underlying the Sixth Amendment

and the Model Rules for basing the propriety of investigation into

additional or different uncharged crimes on whether such activity is

complete or ongoing.

One individual expressed concern that Department attorneys would

exploit this exception by making gratuitous allusions to other offenses

in the course of an otherwise illicit contact with a represented party.

As noted above, prevailing case law interpreting the Sixth Amendment

and the Model Rules permit an attorney to question a defendant as to

uncharged offenses, and there is no evidence of systemic prosecutorial

abuse of this type of interrogation. Accordingly, there is no reason to

suspect that prosecutorial practice under these rules will be

different.

Paragraph (f): Threat to safety or life.

The Supreme Court has recognized that, in certain limited

situations, the need to guard against threats to public safety can

justify noncompliance with otherwise applicable constitutional

safeguards. See Warden v. Hayden, 387 U.S. 294, 298-99 (1967)

(warrantless search permissible when delay would endanger lives of

officers and citizens); New York v. Quarles, 467 U.S. 649, 657 (1984)

(``the need for answers to questions in a situation posing a threat to

the public safety outweighs the need for the [Miranda] prophylactic

rule protecting the Fifth Amendment's privilege against self-

incrimination''). This paragraph recognizes an analogous exception to

the general prohibition against communications with represented parties

in the absence of their counsel. It is the Department's intention that

this exception be invoked only in rare circumstances and only for the

purpose of protecting human life or safety.

The exception has three requirements: (1) the attorney for the

government must have a good faith belief that the safety or life of any

person is threatened; (2) the purpose of the communication must be to

obtain information to protect against the risk of injury or death; and

(3) the attorney for the government must, in good faith, believe that

the communication is reasonably necessary to protect against such risk.

These requirements are imposed to ensure that the exception is invoked

only to protect human life or safety, and not as a routine matter in

violent crime prosecutions. For example, the fact that potentially

dangerous firearms have not been recovered would not in and of itself

be sufficient under ordinary circumstances to constitute a threat to

safety under this exception. Furthermore, the communication must be for

the purpose of protecting human life or safety, and may not be designed

to elicit testimonial evidence. However, information thus obtained may

be used for any purpose consistent with constitutional limitations.

No specific comments were received regarding this paragraph, and it

has not been changed.

Section 77.7: Represented Persons; Investigations

As noted in the discussion of section 77.3, individuals and

organizations who are neither defendants nor arrestees are not

``parties'' within the meaning of this rule, and the general

prohibition on ex parte contacts therefore does not apply. This section

makes clear that attorneys for the government are authorized to

communicate, directly or indirectly, with a represented person unless

the contact is prohibited by some other provision of federal law. These

communications are subject, however, to the restrictions set forth in

sections 77.8 and 77.9 regarding certain categories of negotiations and

respect for attorney-client relationships.

Two individuals commented that this section, even as limited by

sections 77.8 and 77.9, allows a broader range of contact with persons

under investigation than is necessary to meet the Department's

legitimate investigative needs. These individuals agreed that the

government must be free to conduct undercover operations and

investigations, even when field investigators coming into contact with

potential criminal or civil respondents are directed by government

attorneys. They argued, however, that overt communications with persons

during the investigative stage are not similarly justified.

The Department agrees that overt communications between a

government attorney and a represented person during the investigative

stage raise different considerations from covert communications and

should be subject to greater restrictions. For this reason, the

Department plans to make revisions to the United States Attorneys'

Manual providing that government attorneys should engage in overt

communications only after carefully considering whether the

communication is more appropriately handled by others, and should

generally not communicate overtly, or cause another to communicate

overtly, with a target of a federal criminal or civil investigation,

who is known by the Department attorney to be represented by counsel,

concerning the subject matter of the representation. Nevertheless, the

Department believes that overt contacts by federal attorneys and agents

with witnesses and subjects of investigations are often necessary for

effective law enforcement and hence should be permitted.

Section 77.8: Represented Persons and Represented Parties; Plea

Negotiations and Other Legal Agreements

This section prohibits government attorneys from initiating or

engaging in negotiations of certain specified legal agreements with any

individual whom the government attorney knows is represented by

counsel, without the counsel's consent. Even when the regulation

otherwise permits substantive discussions with a represented party or

represented person, it ordinarily would be improper for a government

attorney to initiate or negotiate a plea agreement, settlement,

immunity agreement or any other disposition of a claim or charge

without the consent of the individual's counsel. The one exception to

this prohibition occurs when the communication is initiated by the

represented person or represented party and the procedural safeguards

provided for in paragraph 77.6(c) are satisfied.

The Department believes that this section is important for the

preservation of the attorney-client relationship. One of the primary

purposes of DR 7-104 and Model Rule 4.2 is to protect an individual

represented by counsel from overreaching by an attorney for an

adversary. The Department believes the risk and the consequences of

such overreaching are at their greatest during negotiations over plea

agreements, settlements, and other key legal agreements. The training,

experience, and knowledge of the law possessed by an attorney is

particularly valuable in such situations.

The prohibition contained in this section includes all negotiations

of the terms of a particular plea agreement, settlement agreement, or

other agreement covered by the section. However, this section does not

prohibit an attorney for the government from responding to questions

regarding the nature of such agreements, potential charges, potential

penalties, or other subjects related to such agreements during an

otherwise permissible discussion. Nevertheless, an attorney for the

government should take care in such situations not to go beyond

providing information on these and similar subjects and should

generally refer the represented person to his or her counsel for

further discussion of these issues. The government attorney should also

make it clear that he or she will not negotiate any agreement with

respect to the disposition of criminal charges, civil claims or

potential charges, or immunity agreements without the consent of

counsel.

No specific comments were received regarding this section, and it

has not been changed.

Section 77.9: Represented Persons and Represented Parties; Respect for

Attorney-Client Relationships

When an attorney for the government communicates with a represented

party pursuant to one or more of the exceptions listed in section 77.6,

or with a represented person pursuant to section 77.7, the

communication is nevertheless subject to the restrictions of this

section.

Paragraph (a): Deference to Attorney-Client Relationship

Federal courts have recognized that it is improper for an attorney

for the government to disparage counsel for the represented party or

otherwise to seek to disrupt the relationship between that party and

his attorney. See, e.g., United States v. Morrison, 449 U.S. 361, 362,

367 (1981); United States v. Weiss, 599 F.2d 730, 740 (5th Cir. 1979);

id. at 740-41 (Godbold, J., specially concurring). This paragraph

codifies those basic principles by prohibiting communications that: (1)

attempt to elicit information regarding lawful defense strategies; (2)

disparage the represented party's counsel; or (3) otherwise improperly

seek to disrupt the attorney-client relationship. These prohibitions

apply in every phase of criminal and civil enforcement investigations

and proceedings.

However, the paragraph also accommodates an important exception to

this prohibition. Courts have held that a government attorney may not

permit legal proceedings to go forward if he or she is aware of a

conflict of interest between a represented party and his or her lawyer.

See United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986). Under

this circumstance, the attorney for the government ordinarily should

move to disqualify the lawyer involved, if legal proceedings have

already commenced. If it is not feasible to move for disqualification

or otherwise challenge the representation, this paragraph allows an

attorney for the government to communicate with the represented

individual for the limited purpose of apprising the represented

individual of the perceived conflict. However, any substantive

discussion of the subject matter of the representation is permissible

only insofar as it is authorized by some other provision of this rule.

In order to ensure that this provision is used only in rare

circumstances, the rule requires prior authorization for such

communications from the Attorney General, the Deputy Attorney General,

the Associate Attorney General, an Assistant Attorney General or a

United States Attorney. The authorization should be in writing if at

all possible. Furthermore, before providing approval, the authorizing

officer must find: (1) a substantial likelihood of a conflict; and (2)

that it is not feasible to obtain a court order on the matter.

One organization commented that judicial approval, or at least

approval by a designated Assistant Attorney General (rather than by a

United States Attorney), should be required before an attorney for the

government may apprise a represented party or person of any perceived

conflict of interest. Another organization and an individual commented

that attorneys for the government should never be allowed to inform a

represented individual of a perceived conflict of interest, and,

instead, should be required to move to disqualify counsel and leave it

to the court to adjudicate any conflicts of interest. The Department

believes that there will be circumstances in which it will not be

feasible to obtain a judicial order challenging the representation

(especially prior to the filing of charges), or when the exigencies of

the situation may make it impracticable to obtain prior authorization

of a judicial officer or an Assistant Attorney General. In such

circumstances, and when a high-level Department official, such as a

United States Attorney, determines that there is a significant

likelihood of a conflict of interest between a represented individual

and his or her attorney, it is better that the represented person or

party be apprised of the potential conflict of interest than be left

uninformed. Accordingly, the Department has decided to leave this

paragraph unchanged in the final rule.

Paragraph (b): Attorney-Client Meetings

The attendance of an undercover agent or a cooperating witness at

lawful meetings of an individual and his or her attorneys is ordinarily

an improper intrusion into the attorney-client relationship. The courts

have recognized, however, that such attendance occasionally will be

required when the operative is invited to participate and his or her

refusal to do so would effectively reveal his or her connection to the

government. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 557 (1977);

United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985); United

States v. Mastroianni, 749 F.2d 900, 906 (1st Cir. 1984). As the First

Circuit has noted, a contrary rule ``would provide the defense with a

quick and easy alarm system to detect the presence of any informants,

simply by inviting all known associates of defendants to a supposed

defense strategy meeting.'' Mastroianni, 749 F.2d at 906.

Attendance at such meetings, however, intrudes into the attorney-

client relationship and impairs the right of the defendant to a fair

trial. Accordingly, this section provides that undercover agents or

cooperating witnesses may participate in such meetings, but only when

requested to do so by the defense and when reasonably necessary to

protect their safety or life or the confidentiality of an undercover

operation. See Weatherford, 429 U.S. at 557.

However, even when an undercover operative's attendance at such a

lawful meeting is authorized to protect his or her cover and safety,

any information acquired regarding lawful defense strategy or trial

preparation may not be communicated to government attorneys or

otherwise used to the substantial detriment of the represented party.

See Weatherford, 429 U.S. at 558; Ginsberg, 758 F.2d at 833;

Mastroianni, 749 F.2d at 906. As a safeguard, this rule provides that

such information should not be communicated to the attorneys for the

government or law enforcement agents who are participating in the trial

of the pending criminal charges.

When there is reasonable cause to believe that the purpose of the

meeting is not the lawful defense of the underlying charges, but the

commission of a new or additional crime (such as bribery of a witness

or subordination of perjury), attendance by informants or undercover

agents at attorney-client meetings is permissible pursuant to paragraph

77.6(e). The belief, however, must be based on reasonable cause, not

mere suspicion or conjecture. See Mastroianni, 749 F.2d at 906.

Furthermore, the prohibition against communication of lawful defense

strategy to the prosecution should be observed if, in fact, such

strategy is imparted to the informant or agent.

Government attorneys should give serious consideration to the

extreme sensitivity of permitting agent and informant attendance at

defense meetings. Agents and informants should be instructed to avoid

participating in such meetings, and to minimize their participation

when attendance is required, if it is possible to do so without

arousing suspicion. Agents or witnesses who attend defense meetings

should also be instructed to make every attempt to avoid taking any

role in the shaping of defense strategy or trial preparations.

Additionally, agents and informants should be instructed to avoid

imparting lawful defense strategy or trial preparation information to

attorneys for the government or to law enforcement agents who are

directly participating in the ongoing investigation or in the

prosecution of pending criminal charges.

Finally, this restriction applies only to law enforcement officials

and cooperating witnesses who are acting as ``agents for the

government'' at the time of the communication. If one of several co-

defendants who attended an attorney-client defense strategy meeting

later testifies for the government at trial, no violation will have

occurred as long as the co-defendant was not a government agent at the

time of the meeting. United States v. Brugman, 655 F.2d 540, 545-46

(4th Cir. 1981).

A Department component commented that an undercover agent's

attendance at a meeting at which legal strategy is not discussed does

not intrude on the attorney-client relationship; therefore, the

component proposed limiting this paragraph's prohibition against

government agents participating in an attorney-client meeting or

communication to situations where there is a ``reasonable basis'' to

believe that the meeting or communication will concern legal advice or

strategy. The Department believes that it is unwise and unworkable to

encourage government attorneys and undercover agents to guess whether

legal issues will come up in an attorney-client meeting or

communication. It would also be disruptive of the attorney-client

relationship for government attorneys and undercover agents to gather

the information that might make such a determination even remotely

reliable. Therefore, this paragraph has not been changed.

Section 77.10: Organizations and Employees

This section addresses the difficult issue of when a communication

with an employee or member of a represented organization should be

considered a communication with the organization itself. Important

interests depend on this determination. On the one hand, organizations

should not be shielded from effective criminal or civil law enforcement

prosecution simply by retaining counsel. It is not uncommon for federal

prosecutors to encounter attorneys who assert that they represent every

individual in a large corporation or organization. If such attorneys

were able to prevent government investigators from gaining informal

access to any employee of the organization by withholding consent,

information relevant to claims against the organization might never

come to light because such information is often in the exclusive

possession of the organization and its employees. See, e.g., Suggs v.

Capital Cities/ABC Inc., 54 Empl. Prac. Dec. (CCH)  40,195 at 63,910

(S.D.N.Y. Apr. 24, 1990). On the other hand, organizations are entitled

to the effective assistance of counsel, and the relationship between an

organization and its counsel deserves respect.

The Department believes that this section, and particularly the

definition of ``controlling individual'' in paragraph (a) of this

section, strikes an appropriate balance, one that ensures government

attorneys the ability to enforce federal law, while preserving the

opportunity for corporations and other organizations to secure

effective assistance of counsel.

Paragraph (a): Communications with current employees;

organizational representation.

This paragraph states that a communication with a current employee

of an organizational party or person should be treated as a

communication with the organization for purposes of this part only if

the employee is a ``controlling individual.'' If a communication with a

current employee is properly characterized under this regulation as a

communication with a represented organization (that is, if the

communication is with a controlling individual), then that

communication is subject generally to the same limitations that would

apply if the communication were with a represented person or

represented party.

In accord with the basic structure of this regulation, which

distinguishes between represented parties and represented persons, this

paragraph effectively provides that when an organization is a

represented party, an attorney for the government shall not

communicate, or cause another to communicate, with any controlling

individual of the organization without the consent of the

organization's attorney, subject to the exceptions enumerated in

Sec. 77.6. In contrast, when an organization qualifies as a represented

person, an attorney for the government may communicate, or cause

another to communicate, with any controlling individual, provided the

communication does not violate the provisions of Secs. 77.8 or 77.9.

The definition of ``controlling individual'' is intended to

encompass those individuals who typically are part of the

organization's control group. A controlling individual under this

definition must: (1) be a current employee or member of the

organization; (2) hold a high-level position with the organization; (3)

participate ``as a decision maker in the determination of the

organization's legal position in the proceeding or investigation of the

subject matter;'' and (4) be known by the government to be engaged in

such activities. This definition attempts to identify those limited

number of individuals affiliated with the organization who actually are

involved in determining the organization's position with regard to the

legal proceeding or investigation.

One individual and one organization questioned limiting the class

of employees who should be considered ``controlling individuals'' for

purposes of this subsection to those who participate in framing the

organization's legal position in the matter. They argued that the

proposed ``controlling individual'' test authorizes contacts with

employees who, while not directing the organization's counsel,

nonetheless have extensive authority to act on behalf of the

organization. The underlying concern of these comments appears to be

that this paragraph, as proposed, authorizes contacts with many

employees who are likely to possess information relevant to claims

asserted against the corporation and who have the capacity to make

statements that a court will deem admissible at trial as evidentiary

admissions against the corporation. This is certainly true. However,

the Department believes that its anti-contact rule should not be

designed with the goal of protecting corporations from disclosure of

prejudicial facts. See, e.g., Action Air Freight v. Pilot Air Freight,

769 F. Supp. 899, 903 (E.D. Pa. 1991) (anti-contact rule ``should not

necessarily chill the flow of harmful information''); Hanntz v. Shiley,

Inc., 766 F. Supp. 258, 267 (D.N.J. 1991) (``the policies of Rule 4.2

do not justify a wholesale restriction on discovery of factual

information, damaging or not'').

Anti-contact rules such as DR 7-104 and Model Rule 4.2 are intended

to protect the attorney-client relationship from unnecessary

interference and to protect represented parties from overreaching by

opposing counsel. Damage to the attorney-client relationship inheres

particularly in communications with high-level corporate employees who

have contact with the corporation's attorneys in the course of making

ultimate decisions regarding choice of counsel, implementing counsel's

advice, and determining settlement and other litigation strategies.

Therefore, communications with those high-level individuals affiliated

with or employed by an organization who are responsible for employing

and directing the organization's counsel and for determining legal

positions taken by the organization are the type of communications

prohibited by DR 7-104.

Accordingly, this paragraph defines ``controlling individual''

consistently with the principles underlying the disciplinary rules on

ex parte contacts. The Department also believes that the alternative

approaches urged by commenters would impose unacceptable constraints on

federal law enforcement. Therefore, this paragraph has not been

changed.

Paragraph (b): Communications with former employees; organizational

representation.

This paragraph authorizes communications with former employees of

represented organizations. Because former employees do not direct the

affairs of the organization and therefore cannot be considered members

of the ``control group'' or any other controlling entity of an

organization, communications with them are not considered

communications with the organization for purposes of the rule. This

reasoning is consistent with the conclusion of the majority of federal

courts that have held that DR 7-104(A)(1) does not bar communications

with former employees of a represented corporate party. See, e.g.,

Hanntz v. Shiley, Inc., 766 F. Supp. 258, 267 & n.8 (D.N.J. 1991);

Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. Supp. 899,

904 (E.D. Pa. 1991); Shearson Lehman Bros., Inc. v. Wasatch Bank, 139

F.R.D. 412, 417-18 (D. Utah 1991); Sherrod v. Furniture Center, 769 F.

Supp. 1021, 1022 (W.D. Tenn. 1991); Dubois v. Gradco Systems, Inc., 136

F.R.D. 341, 345 n.4 (D. Conn. 1991); Polycast Technology Corp. v.

Uniroyal, Inc., 129 F.R.D. 621, 628 (S.D.N.Y. 1990). See also ABA Comm.

on Ethics and Professional Responsibility, Formal Op. 359 (1991)

(``Accordingly, it is the opinion of the Committee that a lawyer

representing a client in a matter adverse to a corporate party that is

represented by another lawyer may, without violating Model Rule 4.2,

communicate about the subject of the representation with an

unrepresented former employee of the corporate party without the

consent of the corporation's lawyer.''). But see PPG Industries, Inc.

v. BASF Corp., 134 F.R.D. 118, 121 (W.D. Pa. 1990); Public Serv. Elec.

& Gas v. Associated Elec. & Gas, 745 F. Supp. 1037, 1042 (D.N.J. 1990).

No specific comments were received regarding this paragraph, and it

has not been changed.

Paragraph (c): Communications With Former or Current Employees;

Individual Representation

This paragraph provides that if a former or current employee or a

member of an organization retains his or her own counsel, the

government shall provide the same protection to him or her that would

be provided under this part to any other represented person or

represented party. Communications with that individual are subject to

the limitations set forth in this part. Although this paragraph

provides the general rule for such communications, paragraph (d)

addresses the specific situation in which a controlling individual of a

represented organization retains separate counsel.

This paragraph also provides that the government will not accept,

for purposes of this rule, blanket claims by counsel that he or she

represents all or a large number of employees of the organization. It

is important to note that this provision is only relevant when the

attorney for the government would be prohibited by some other provision

of this regulation from contacting an individual falling under the

broad claims of representation under question. For example, an attorney

for the government may contact a low-level employee of a corporation,

without consent of that employee's counsel or the corporation's

counsel, regarding a matter for which the corporation has already been

indicted as part of an undercover or overt factual investigation, if

that individual has not been arrested or named as a defendant in a

related criminal or civil law enforcement proceeding. Therefore, the

fact that an attorney has stated that he or she represents that

individual will have no bearing on whether the communication is proper.

However, if a particular communication with an individual employee

included in such a claim of representation would be improper under

these rules if he or she were in fact represented by counsel (for

example, communications to negotiate a plea agreement), then this

paragraph provides that a government attorney must first inquire

whether the employee is in fact represented before undertaking

substantive communications with the employee. As part of this inquiry,

the government attorney is not required to disclose to the employee the

fact that counsel has asserted that he or she represents the employee.

If the employee indicates that he or she is not represented by counsel,

it is proper for the government attorney to treat the employee as

unrepresented. If the employee indicates that he or she is represented

by counsel with regard to the relevant subject matter, the attorney for

the government shall treat that employee as a represented person or

represented party, and any further communications with that individual

shall be governed by this regulation.

No specific comments were received regarding this paragraph, and it

has not been changed.

Paragraph (d): Communications with separately represented

controlling individuals.

This paragraph applies only when a controlling individual of a

represented organizational party has retained separate counsel. In such

circumstances, a government attorney may not communicate with the

controlling individual without the consent of that individual's

separate counsel unless the communication satisfies one of the

exceptions contained in Sec. Sec. 77.6 or 77.9 of this part. The

paragraph also allows such communications if the individual does not

qualify as a represented party, initiates the communication, and waives

the presence of counsel. Thus, the same rules apply to contacts with

controlling individuals of represented organizational parties who

retain separate counsel as apply to controlling individuals of

represented organizational parties who are not separately represented.

No specific comments were received regarding this paragraph, and it

has not been changed.

Paragraph (e): Initiation of communication by unrepresented

controlling individuals.

This paragraph addresses a relatively narrow circumstance: when a

controlling individual who is not individually represented by counsel

initiates a communication with the government outside the presence of

counsel for the organization. An attorney for the government may

participate in such communications if: (1) the controlling individual

indicates that he or she is speaking exclusively in his or her personal

capacity and not as a representative of the organizational party; and

(2) he or she indicates that the waiver of counsel is voluntary,

knowing, and informed and, if willing, signs a statement to that

effect. The fact that the controlling individual indicates that he or

she is speaking in his or her personal capacity does not mean, however,

that incriminating testimony received from the controlling individual

cannot be used against the represented organization.

If the controlling individual is also a named defendant in a civil

enforcement proceeding or has been arrested or charged in a criminal

action, the requirements set forth in paragraph 77.6(c) must be

satisfied before any substantive communications are made.

No specific comments were received regarding this paragraph, and it

has not been changed.

Paragraph (f): Multiple representation.

This paragraph makes clear that these rules should not be construed

as altering existing legal and ethical rules regarding the propriety of

multiple representation.

No specific comments were received regarding this paragraph, and it

has not been changed.

Section 77.11: Enforcement of This Part

Paragraph (a): Exclusive enforcement by Attorney General.

In order to ensure consistency and uniformity in the

interpretation of the final rule, this paragraph provides that the

Attorney General shall have exclusive authority to enforce these

regulations. Thus, state courts, state disciplinary boards, and federal

courts may not impose sanctions on or otherwise regulate a Department

attorney engaged in federal law enforcement activities for violations

of an anti-contact rule or subject a Department attorney to regulation

under state or local federal court rules governing communications with

represented parties, except as provided in Sec. 77.12. This paragraph

further provides the framework for investigating allegations that a

Department attorney has violated this regulation. It provides that the

Department's Office of Professional Responsibility (``OPR'') shall have

sole original jurisdiction to investigate such allegations and that

violations will be treated as matters of attorney discipline. See 28

CFR Sec. 0.39 (establishing and defining duties of OPR). It also makes

clear that the Attorney General's determination as to whether a

violation has occurred shall be final and conclusive except to the

extent that the Department attorney enjoys a right of review provided

by other laws.

One individual and one organization objected to placing

investigative responsibility in OPR, suggesting that OPR had, in the

past, been reluctant to share the results of its investigations. The

Department recently adopted a policy under which the results of OPR

investigations are disclosed to the public if, inter alia, there is a

finding of intentional and knowing professional misconduct by a

Department attorney in the course of an investigation or litigation and

the public interest in disclosure outweighs the privacy interest of the

attorney and any law enforcement interest. Therefore, there will be

meaningful disclosure of findings of violations of these rules.

Moreover, allegations of professional misconduct by Department

attorneys concerning violations of these rules may be reported directly

to OPR by any person. Complaints filed by members of the public will be

fully and thoroughly reviewed by OPR.

Therefore, this paragraph has not been changed.

Paragraph (b): No private remedies.

This paragraph provides that the rule is not intended to and does

not create any substantive rights for any person other than an attorney

for the government. In particular, a violation of the regulation will

not provide a basis for the dismissal of civil or criminal charges or

for the suppression of evidence that is otherwise admissible. This

provision accords with existing law. Traditionally, matters relating to

communications with represented persons have been treated as matters of

attorney discipline without granting substantive rights to defendants

or any other persons. See, e.g., ABA Code of Professional

Responsibility, Preliminary Statement; ABA Model Rules of Professional

Conduct, Scope. Of course, when the communication with a represented

person or represented party violates the Constitution, the federal

courts retain the power to fashion appropriate remedies.

No specific comments were received regarding this paragraph, and it

has not been changed.

Section 77.12: Relationship to State and Local Regulation

Both DR 7-104 and Model Rule 4.2 provide that communications that

are ``authorized by law'' are not prohibited by the rule. Virtually all

the states have adopted some version of DR 7-104 or Model Rule 4.2 that

includes an ``authorized by law'' exception. As discussed in the

``General Comments'' section, these rules, as substantive regulations

duly promulgated by the Attorney General pursuant to statutory

authority, have the force and effect of law. Accordingly,

communications with represented persons that are undertaken pursuant to

these rules should be considered ``authorized by law'' within the

meaning of rules adopted by the various states. Such communications

should therefore be consistent with state rules wherever state bar

authorities have adopted a rule containing the ``authorized by law''

exception. Thus, no conflict will arise between state and federal law

in those jurisdictions with regard to communications with represented

persons. Similarly, no conflict should arise between this regulation

and the federal district court rules that have adopted an anti-contact

rule containing the ``authorized by law'' exception. This regulation

therefore need not give rise to any tension with any provision of state

or federal law.

The Department nonetheless recognizes the likelihood that

government attorneys' conduct with respect to contact with represented

persons may continue to be viewed by some as inconsistent with state or

local district court rules. To effectuate fully the provisions of this

regulation, it therefore is important that the regulation include a

plain statement by the Department of its intention to preempt and

supersede regulation by state courts, state disciplinary authorities,

or federal district courts of ex parte communications by government

attorneys in civil or criminal law enforcement investigations or

proceedings. See Hillsborough County, Fla. v. Automated Med. Labs, 471

U.S. 707, 718 (1985) (``because agencies normally express problems in a

detailed manner and can speak through a variety of means, including

regulations, preambles, interpretative statements and responses to

comments, we can expect that they will make their intention clear if

they intend for their regulations to be exclusive'').

There is no indication from any of the comments received of any

confusion regarding the breadth of the Department's intention to

displace state and federal law; on the contrary, the comments in this

area generally both fully grasped and took issue with the Department's

stated intention to occupy the field. Given the integral importance of

the exclusive enforcement authority to the overall regulatory scheme,

however, some revisions have been made to this section to leave no

doubt that it is the express intention of these rules to completely

preempt and supersede the operation of state and local laws or rules as

they relate to contacts by government attorneys in civil or criminal

law enforcement investigations or proceedings. Such occupation of the

field is necessary to ensure that government attorneys' conduct

respecting contacts with represented persons be subject to uniform

regulation and predictable standards, as against potential variations

in individual state and local rules and in interpretations of those

rules.

Accordingly, this regulation completely preempts state or federal

court regulation of ex parte contacts in law enforcement matters by

government attorneys and those acting at their direction, with one

important exception. If the Attorney General finds that a Department

attorney has committed a ``willful violation'' of any of these rules,

preemption will not apply, and that attorney will be subject to

disciplinary proceedings both by the Department and by the appropriate

state disciplinary authorities.

Several commenters argued that it is inappropriate to preclude an

otherwise appropriate state or federal court disciplinary proceeding

when the Department's own rules have been violated. The Department

respectfully disagrees. A primary purpose for this regulation is to

remove the substantial burden on federal law enforcement caused by

uncertainty as to what constitutes appropriate conduct by Department

attorneys. This uncertainty would not be removed were it left to the

various state and federal district courts to interpret these rules and

determine on their own whether they had been violated in any particular

case. For this reason, the Department believes that it is necessary

that it retain exclusive authority to determine whether one of its

lawyers has breached these rules, with the important proviso that, when

there is a finding of a willful violation, a state disciplinary

authority may also impose sanctions.

One United States Attorney's Office commented that the meaning of a

``willful violation'' had not been clearly explained in the previous

commentary. In response to this comment, the Department here clarifies

that a ``willful violation'' means an intentional and deliberate

violation of these rules, as determined by the Attorney General.

United States Attorneys' Manual

In addition to the promulgation of the rules discussed above, the

Department intends to add several new provisions to the United States

Attorneys' Manual to provide additional guidance to Department

attorneys when they deal with represented individuals during criminal

or civil law enforcement investigations and proceedings.

The Department has deliberately chosen to include certain baseline

restrictions in the regulation and impose broader restrictions through

provisions in the Manual. In the process of determining what the

appropriate Departmental policy should be, it became clear that any

regulation would have to apply to a variety of circumstances,

including: white collar and organized crime investigations, complex

conspiracy investigations, individuals whose counsel are paid by a

third party, and individuals fearful of their counsel for various

reasons. Accordingly, the Department determined that the regulation

should be broad in scope and should provide unambiguous guidance that

would not adversely affect federal law enforcement efforts. Thus, part

77 distinguishes between the investigative period (before indictment,

arrest, or the filing of a complaint) and the prosecutive period (after

arrest or the commencement of formal proceedings). It also

distinguishes between communications that are part of a factual

investigation and communications that occur during negotiations of plea

agreements, settlements, and similar legal arrangements.

The planned Manual provisions will require that government

attorneys consider the principles underlying the basic prohibitions in

a much wider variety of circumstances. The Department expects all

Department attorneys involved in criminal or civil law enforcement

proceedings to adhere to all applicable provisions in the Manual.

Failure to do so will result in appropriate departmental action.

The planned changes to the Manual were included in the earlier

publications simply for reference and were not subject to the

requirements of notice and comment that applied to the provisions in

the proposed regulation itself. The Department nonetheless received

several comments regarding the draft Manual provisions. The Department

has carefully considered those comments and has decided that it is

appropriate (though not required) to respond to them briefly in this

commentary. However, none of the comments received has prompted the

Department to conclude that it should alter the planned Manual

provisions. The Department anticipates that the Manual provisions will

be substantially similar to the draft published in March 1994. The

Department envisions publishing the Manual provisions soon and

integrating them in the Manual with the final rules adopted here.

Comments were directed mainly to a draft Manual provision that

would prohibit a government attorney from communicating overtly about

the subject matter of a representation with a person who the government

attorney knows is a ``target'' of a federal criminal or civil

enforcement investigation and who the government attorney knows is

represented by counsel, without the consent of the target's attorney.

(The provisions, as published in March 1994, would also provide several

exceptions to this general prohibition against overt contacts with

targets, including the following: when the communication is initiated

by the target; when the communication occurs at the time of arrest and

the represented person has waived his or her Miranda rights; when the

government attorney believes the contact is necessary to protect

against a risk to human life or safety; or when a senior Department

official determines that exigent circumstances exist, making the

communication necessary for effective law enforcement).

Two United States Attorney's Offices urged reconsideration of the

guideline generally prohibiting Department attorneys from directly

communicating with known ``targets.'' These commenters expressed a

number of concerns about the ``target'' provision--most significantly,

that the determination of ``target'' status would be subjective and

variable and that the proposed limitation on overt contacts with

represented targets would interfere with the investigative process.

The Department does not agree that the term ``target'' would make

application of this planned restriction particularly troublesome. While

determinations of ``target'' status surely are not scientifically

precise, neither are a range of other similar determinations (e.g.,

``probable cause'' determinations) that prosecutors are expected

routinely to make. In its enforcement of the planned provision, the

Department intends to give substantial deference to a federal

attorney's good faith judgment regarding the likelihood that a

particular person will ultimately become a defendant. Even if the

attorney for the government believes that an individual probably will

be named as a defendant, that individual would not be considered a

target until the government has actually obtained substantial evidence

linking that individual to the commission of a crime or to unlawful

conduct. The government attorney's uncorroborated belief that an

individual will ultimately be named as a defendant would not be enough.

Thus, an individual will not be considered a target under the Manual

guidelines until both the attorney for the government believes that he

or she will probably be named as a defendant and substantial evidence

has been obtained.

The Department also does not believe that the contemplated

restriction on overt communications with represented targets would

significantly impede legitimate law enforcement activities. It is true

that in certain types of cases and under certain exceptional

circumstances, target interviews may be necessary for effective

investigation; for that reason, the planned Manual provisions would

allow that in such situations target interviews may be approved by a

high-ranking Department official. However, as a general matter and in

more routine circumstances, overt communications with targets have a

more limited value to the investigative process, which is outweighed by

the risk that they will interfere with the attorney-client relationship

and place undue pressure on the target. Because an individual who is a

target of a federal investigation is typically in a clearly adversarial

relationship with the federal government, the Department believes that

the principles underlying DR 7-104 and Rule 4.2 are implicated and that

the planned restrictions on overt communications with represented

targets are appropriate.

Certifications

In accordance with 5 U.S.C. 605(b), the Attorney General certifies

that this rule will not have a significant economic impact on a

substantial number of small entities. This rule was not reviewed by the

Office of Management and Budget pursuant to Executive Order No. 12866.

List of Subjects in 28 CFR Part 77

Government employees, Investigations, Law enforcement, Lawyers.

Accordingly, chapter I of title 28 of the Code of Federal

Regulations is amended by adding a new part 77 to read as follows:

PART 77--COMMUNICATIONS WITH REPRESENTED PERSONS

Sec.

77.1 Purpose and authority.

77.2 Definitions.

77.3 Represented party; represented person.

77.4 Constitutional and other limitations.

77.5 General rule for civil and criminal enforcement; represented

parties.

77.6 Exceptions; represented parties.

77.7 Represented persons; investigations.

77.8 Represented persons and represented parties; plea negotiations

and other specified legal agreements.

77.9 Represented persons and represented parties; respect for

attorney-client relationships.

77.10 Organizations and employees.

77.11 Enforcement of this part.

77.12 Relationship to state and local regulation.

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515(a), 516, 519,

533, 547.

Sec. 77.1 Purpose and authority.

(a) The Department of Justice is committed to ensuring that its

attorneys perform their duties in accordance with the highest ethical

standards. The purpose of this part is to provide a comprehensive,

clear, and uniform set of rules governing the circumstances under which

Department of Justice attorneys may communicate or cause others to

communicate with persons known to be represented by counsel in the

course of law enforcement investigations and proceedings. This part

ensures the Department's ability to enforce federal law effectively and

ethically, consistent with the principles underlying Rule 4.2 of the

American Bar Association Model Rules of Professional Conduct, while

eliminating the uncertainty and confusion arising from the variety of

interpretations given to that rule and analogous rules by state and

federal courts and by bar association organizations and committees.

(Copies of the Bar rules are on file in most law libraries, and through

on-line legal research services).

(b) This part is issued under the authority of the Attorney General

to prescribe regulations for the government of the Department of

Justice, the conduct of its employees, and the performance of its

business, pursuant to 5 U.S.C. 301; to direct officers of the

Department of Justice to secure evidence and conduct litigation,

pursuant to 28 U.S.C. 516; to direct officers of the Department to

conduct grand jury proceedings and other civil and criminal legal

proceedings, pursuant to 28 U.S.C. 515(a); to supervise litigation and

to direct Department officers in the discharge of their duties,

pursuant to 28 U.S.C. 519; and otherwise to direct Department officers

to detect and prosecute crimes, to prosecute offenses against the

United States, to prosecute civil actions, suits, and proceedings in

which the United States is concerned, and to perform such other

functions in an appropriate and ethical manner as may be provided by

law, pursuant to 28 U.S.C. 509, 510, 533, and 547.

Sec. 77.2 Definitions.

As used in this part, the following terms shall have the following

meanings, unless the context indicates otherwise:

(a) Attorney for the government means the Attorney General; the

Deputy Attorney General; the Associate 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, or 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 Legal Counsel Division of the FBI, and, in

addition, 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 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; or 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 term attorney for the government

does not include any attorney employed by the Department of Justice as

an investigator or other law enforcement agent who is not authorized to

represent the United States in criminal or civil law enforcement

litigation or to supervise such proceedings.

(b) Civil law enforcement investigation means an investigation of

possible civil violations of, or claims under, federal law that may

form the basis for a civil law enforcement proceeding.

(c) (1) Civil law enforcement proceeding means a civil action or

proceeding before any court or other tribunal brought by the Department

of Justice under the police or regulatory powers of the United States

to enforce federal laws, including, but not limited to, civil actions

or proceedings brought to enforce the laws relating to:

(i) Antitrust;

(ii) Banking and financial institution regulation;

(iii) Bribery, kickbacks, and corruption;

(iv) Civil rights;

(v) Consumer protection;

(vi) Environment and natural resource protection;

(vii) False claims against the United States;

(viii) Food, drugs, and cosmetics regulation;

(ix) Forfeiture of property;

(x) Fraud;

(xi) Internal revenue;

(xii) Occupational safety and health;

(xiii) Racketeering; or

(xiv) Money-laundering.

(2) The term civil law enforcement proceeding shall not include

proceedings related to the enforcement of an administrative subpoena or

summons or a civil investigative demand. An action or proceeding shall

be considered ``brought by the United States'' only if it involves a

claim asserted by the Department of Justice on behalf of the United

States, whether the claim is asserted by complaint, counterclaim,

cross-claim, or otherwise.

(d) Cooperating witness or individual means any person, other than

a law enforcement agent, who is acting to assist the government in an

undercover or confidential capacity.

(e) Employee means any employee, officer, director, partner,

member, or trustee.

(f) Organization means any corporation, partnership, association,

joint-stock company, union, trust, pension fund, unincorporated

association, state or local government or political subdivision

thereof, or non-profit organization.

(g) Person means any individual or organization.

(h) Undercover investigation means any investigation undertaken in

good faith to fulfill law enforcement objectives, in which a person

communicates with a federal, state or local law enforcement agent or a

cooperating witness or individual whose identity as an official of the

government or a person acting at the behest thereof is concealed or is

intended to be concealed.

Sec. 77.3 Represented party; represented person.

(a) A person shall be considered a ``represented party'' within the

meaning of this part only if all three of the following circumstances

exist:

(1) The person has retained counsel or accepted counsel by

appointment or otherwise;

(2) The representation is ongoing and concerns the subject matter

in question;

(3) The person has been arrested or charged in a federal criminal

case or is a defendant in a civil law enforcement proceeding concerning

the subject matter of the representation.

(b) A person shall be considered a ``represented person'' within

the meaning of this part if circumstances set forth in paragraphs (a)

(1) and (2) of this section exist, but the circumstance set forth in

paragraph (a)(3) does not exist.

Sec. 77.4 Constitutional and other limitations.

Notwithstanding any other provision of this part, any communication

that is prohibited by the Sixth Amendment right to counsel, by any

other provision of the United States Constitution, by any federal

statute, by the Federal Rules of Criminal Procedure (18 U.S.C. App.) or

by the Federal Rules of Civil Procedure (28 U.S.C. App.) shall be

likewise prohibited under this part.

Sec. 77.5 General rule for civil and criminal enforcement; represented

parties.

Except as provided in this part or as otherwise authorized by law,

an attorney for the government may not communicate, or cause another to

communicate, with a represented party who the attorney for the

government knows is represented by an attorney concerning the subject

matter of the representation without the consent of the lawyer

representing such party.

Sec. 77.6 Exceptions; represented parties.

An attorney for the government may communicate, or cause another to

communicate, with a represented party without the consent of the lawyer

representing such party concerning the subject matter of the

representation if one or more of the following circumstances exist:

(a) Determination if representation exists. The communication is to

determine if the person is in fact represented by counsel concerning

the subject matter of the investigation or proceeding.

(b) Discovery or judicial or administrative process. The

communication is made pursuant to discovery procedures or judicial or

administrative process in accordance with the orders or rules of the

court or other tribunal where the matter is pending, including, but not

limited to testimony before a grand jury, the taking of a deposition,

or the service of a grand jury or trial subpoena, summons and

complaint, notice of deposition, administrative summons or subpoena or

civil investigative demand.

(c) Initiation of communication by represented party. The

represented party initiates the communication directly with the

attorney for the government or through an intermediary and:

(1) Prior to the commencement of substantive discussions on the

subject matter of the representation and after being advised by the

attorney for the government of the client's right to speak through his

or her attorney and/or to have the client's attorney present for the

communication, manifests that his or her waiver of counsel for the

communication is voluntary, knowing and informed and, if willing to do

so, signs a written statement to this effect; and

(2) A federal district judge, magistrate judge or other court of

competent jurisdiction has concluded that the represented party has:

(i) Waived the presence of counsel and that such waiver is

voluntary, knowing, and informed; or

(ii) Obtained substitute counsel or has received substitute counsel

by court appointment, and substitute counsel has consented to the

communication.

(d) Waivers at the time of arrest. The communication is made at the

time of the arrest of the represented party and he or she is advised of

his or her rights under Miranda v. Arizona, 384 U.S. 436 (1966), and

voluntarily and knowingly waives them.

(e) Investigation of additional, different or ongoing crimes or

civil violations. The communication is made in the course of an

investigation, whether undercover or overt, of additional, different or

ongoing criminal activity or other unlawful conduct. Such additional,

different or ongoing criminal activity or other unlawful conduct may

include, but is not limited to, the following:

(1) Additional, different or ongoing criminal activity or other

unlawful conduct that is separate from or committed after the criminal

activity for which the represented party has been arrested or charged

or for which the represented party is a defendant in a civil law

enforcement proceeding; or

(2) Criminal activity that is intended to impede or evade the

administration of justice including, but not limited to, the

administration of justice in the proceeding in which the represented

party is a defendant, such as obstruction of justice, subornation of

perjury, jury tampering, murder, assault, or intimidation of witnesses,

bail jumping, or unlawful flight to avoid prosecution.

(f) Threat to safety or life. The attorney for the government in

good faith believes that there may be a threat to the safety or life of

any person; the purpose of the communication is to obtain or provide

information to protect against the risk of injury or death; and the

attorney for the government in good faith believes that the

communication is necessary to protect against such risk.

Sec. 77.7 Represented persons; investigations.

Except as otherwise provided in this part, an attorney for the

government may communicate, or cause another to communicate, with a

represented person in the process of conducting an investigation,

including, but not limited to, an undercover investigation.

Sec. 77.8 Represented persons and represented parties; plea

negotiations and other legal agreements.

An attorney for the government may not initiate or engage in

negotiations of a plea agreement, settlement, statutory or non-

statutory immunity agreement, or other disposition of actual or

potential criminal charges or civil enforcement claims, or sentences or

penalties with a represented person or represented party who the

attorney for the government knows is represented by an attorney without

the consent of the attorney representing such person or party;

provided, however, that this restriction will not apply if the

communication satisfies Sec. 77.6(c).

Sec. 77.9 Represented persons and represented parties; respect for

attorney-client relationships.

When an attorney for the government communicates, or causes a law

enforcement agent or cooperating witness to communicate, with a

represented person or represented party pursuant to any provision of

these regulations without the consent of counsel, the following

restrictions must be observed:

(a) Deference to attorney-client relationship. (1) An attorney for

the government, or anyone acting at his or her direction may not, when

communicating with a represented person or represented party:

(i) Inquire about information regarding lawful defense strategy or

legal arguments of counsel;

(ii) Disparage counsel for a represented person or represented

party or otherwise seek to induce the person to forego representation

or to disregard the advice of the person's attorney; or

(iii) Otherwise improperly seek to disrupt the relationship between

the represented person or represented party and counsel.

(2) Notwithstanding paragraph (a)(1) of this section, if the

Attorney General, the Deputy Attorney General, the Associate Attorney

General, an Assistant Attorney General or a United States Attorney

finds that there is a substantial likelihood that there exists a

significant conflict of interest between a represented person or party

and his or her attorney; and that it is not feasible to obtain a

judicial order challenging the representation, then an attorney for the

government with prior written authorization from an official identified

above may apprise the person of the nature of the perceived conflict of

interest, unless the exigencies of the situation permit only prior oral

authorization, in which case such oral authorization shall be

memorialized in writing as soon thereafter as possible.

(b) Attorney-client meetings. An attorney for the government may

not direct or cause an undercover law enforcement agent or cooperating

witness to attend or participate in lawful attorney-client meetings or

communications, except when the agent or witness is requested to do so

by the represented person or party, defense counsel, or another person

affiliated or associated with the defense, and when reasonably

necessary to protect the safety of the agent or witness or the

confidentiality of an undercover operation. If the agent or witness

attends or participates in such meetings, any information regarding

lawful defense strategy or trial preparation imparted to the agent or

witness shall not be communicated to attorneys for the government or to

law enforcement agents who are directly participating in the ongoing

investigation or in the prosecution of pending criminal charges, or

used in any other way to the substantial detriment of the client.

Sec. 77.10 Organizations and employees.

This section applies when the communication involves a former or

current employee of an organization that qualifies as a represented

party or represented person, and the subject matter of the

communication relates to the business or other affairs of the

organization.

(a) Communications with current employees; organizational

representation. A communication with a current employee of an

organization that qualifies as a represented party or represented

person shall be considered to be a communication with the organization

for purposes of this part only if the employee is a controlling

individual. A ``controlling individual'' is a current high level

employee who is known by the government to be participating as a

decision maker in the determination of the organization's legal

position in the proceeding or investigation of the subject matter.

(b) Communications with former employees; organizational

representation. A communication with a former employee of an

organization that is represented by counsel shall not be considered to

be a communication with the organization for purposes of this part.

(c) Communications with former or current employees; individual

representation. A communication with a former or current employee of an

organization who is individually represented by counsel may occur only

to the extent otherwise permitted by this part. However, a claim by an

attorney that he or she represents all or a large number of individual

current and/or former employees of an organization does not suffice to

establish that those employees are represented persons or represented

parties under this part. In such circumstances, prior to engaging in

communications that would be prohibited under this part as a result of

the individual representation, the attorney for the government shall

communicate with the individual current or former employee to determine

if in fact that employee is represented by counsel concerning the

subject matter of the investigation or proceeding.

(d) Communications with separately represented controlling

individuals. When this part would preclude discussions with a

controlling individual as defined in Sec. 77.10(a) and the controlling

individual has retained separate counsel on the relevant subject

matter, an attorney for the government may communicate with such

individual in the following circumstances:

(1) If the controlling individual's separate counsel consents;

(2) If the communication falls within one of the exceptions set

forth in Secs. 77.6 or 77.9; or

(3) In the case in which the individual does not qualify as a

represented party, if the individual initiates the communication and

states that he or she is communicating exclusively in his or her

personal capacity and not on behalf of the represented organizational

part

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