Communications With Represented Persons

DEPARTMENT OF JUSTICE

28 CFR Part 77

[AG Order No. 1851-94]

Communications With Represented Persons

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice (``Department'') is issuing for an

additional 30-day comment period a proposed rule governing the

circumstances under which its attorneys may communicate with persons

and organizations known to be represented by counsel in the course of

law enforcement investigations and proceedings.

The purpose of the proposed 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 by reference as

local court rules in a number of federal district courts.

The proposed rule establishes a general prohibition, subject to

limited enumerated exceptions, against contacts with ``represented

parties.'' This prohibition derives from the American Bar Association

(``ABA'') Code of Professional Responsibility and its successor, the

ABA Model Rules of Professional Conduct. The proposed rule generally

permits investigative contacts with represented individuals or

organizations who 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 would 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 bar rules. Those

provisions 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. The intended additions to the United States

Attorneys' Manual are provided for reference as part of this

commentary.

DATES: Comments must be received on or before April 4, 1994.

ADDRESSES: Written comments should be submitted to: The Office of the

Associate Attorney General, United States Department of Justice, 10th

St. and Constitution Ave. NW., Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: F. Mark Terison, Senior Attorney,

Legal Counsel, Executive Office for United States Attorneys, United

States Department of Justice, (202) 514-5204. This is not a toll-free

number.

SUPPLEMENTARY INFORMATION:

I. General Discussion

The Department issued for notice and comment a proposed rule on the

same subject on two previous occasions. See 57 FR 54737 (Nov. 20, 1992)

and 58 FR 39976 (July 26, 1993). The Department received many

thoughtful comments from members of the bar, state courts, bar counsel,

federal and state prosecutors and others during those comment periods.

The current version of the proposed rule includes substantial revisions

based on those comments. Accordingly, the Department is issuing the

rule again for comments to ensure that all the interested parties have

an opportunity to comment.

This proposal 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 federal attorneys can rely

in carrying out their responsibilities to enforce federal laws. The

regulations make clear that federal attorneys generally continue to be

subject to state bar ethical rules where they are licensed to practice,

except in the limited circumstances where state ethical rules clearly

conflict with lawful federal procedures and practices. With respect to

willful violations of the contacts rules as embodied in the Attorney

General's proposed regulations, federal attorneys would remain subject

to state bar disciplinary sanctions. This new proposal is the product

of extensive review, comments and vigorous debate among judges, federal

government attorneys, members of the private bar, disciplinary

officials, academics and ethicists.

In essence, the proposed regulations would permit federal

prosecutors and agents to continue to conduct criminal and civil

investigations in routine fashion against all individuals, whether or

not those persons are represented by counsel. They would allow

Department 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 regulations generally

would not permit federal prosecutors to attempt to negotiate plea

agreements, settlements or similar arrangements with individuals

represented by counsel outside of the presence or without the consent

of their attorneys. These regulations also would preclude, with certain

very narrow exceptions, any contacts with represented parties after an

arrest, indictment, or the filing of a complaint on the subject matter

of the representation. The principal exception to these general

prohibitions occurs when the defendant voluntarily and knowingly

initiates a contact with the government attorney, in which case the

regulations would require the government attorney to take the matter

before a district judge or magistrate judge to obtain approval for the

communication or to obtain the appointment of substitute counsel for

the defendant.

The United States Attorneys' Manual will set forth further

guidance. The proposed Manual provisions, which are set out in their

entirety at the end of this commentary, 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 Manual also will 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 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 defendants who waive their rights 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 high 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 (10th Cir.), cert. denied, 498 U.S. 855 (1990) (discussing

cases); United States v. Lemonakis, 485 F.2d 941, 955-56 (DC Cir.

1973), cert. denied, 415 U.S. 989 (1974). Only the Second Circuit has

suggested otherwise. See United States v. Hammad, 858 F.2d 834 (2d Cir.

1988). In recent years, state courts and state bar organizations have

expressed different views on the point at which the prohibition on

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

should apply to criminal enforcement proceedings.

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

An 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.

This problem is 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. As a result, 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 would

be subject to state discipline for the exact same conduct.

In light of these circumstances, the Department has concluded that

a compelling need exists which warrants a uniform federal rule to

reconcile the traditional rule against contacts with a represented

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

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

been forced 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 this type of

regulation. Virtually all the states have adopted rules that include an

``authorized by law'' exception. These proposed regulations are

intended to provide legal authorization in states whose bar rules

provide that exception.

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). However, 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. 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, the proposed regulations attempt to reconcile the purposes

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

Recognizing the importance of the attorney-client relationship and the

desirability of an individual who is represented by counsel being fully

advised by counsel before negotiating legal agreements, the regulations

provide that federal attorneys may not negotiate plea bargains,

settlement agreements, immunity agreements or similar arrangements

without the participation or consent of the individual's attorney. In

this context, the prosecutor's superior legal training and specialized

knowledge could be used to the detriment of the untutored layperson.

Thus, the regulations comport with the principal purpose of DR 7-104

and Rule 4.2 by insisting that the individual's attorney participate in

these types of negotiations. At the same time, the regulations would

permit direct contacts at the preindictment, prearrest investigative

stage with any individual, whether or not he or she is represented by

counsel, to inquire about the matters under investigation. The

regulations are drafted to conform to the approach of most federal

appellate courts that have considered the matter. See, e.g., United

States v. Lopez, 4 F.3d 1455 (9th Cir. 1993); United States v. Ryans,

903 F.2d 731 (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); and United States v.

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

U.S. 989 (1974). The Department believes that public policy and

effective law enforcement would not be served if one could exempt

himself or herself from lawful, court-sanctioned investigative

techniques simply by retaining an attorney. 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 a court would appoint counsel for a person not able to afford

counsel.

The regulations and the accompanying changes to the United States

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

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

the regulations would preclude federal attorneys from disparaging an

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

client confidences or lawful defense strategy. The guidelines contained

in the Manual provisions will also make clear that once an individual

is in a likely adversarial situation with the government and has

retained an attorney to represent him or her with respect to the

particular subject matter under investigation, the government attorney

must take greater care before making any ex parte contacts. While the

proposed regulations authorize most communications before arrest, the

proposed 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 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, additional 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 proposed regulations and 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 regulations generally prohibit 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'' and the

organization has been named as a defendant in a criminal or civil law

enforcement proceeding. The Manual provisions further generally

prohibit contacts with controlling individuals of organizations that

have not yet been named as defendants but are targets of federal

criminal or civil law enforcement investigations without the consent of

counsel.

The proposed regulations recognize that state courts and

disciplinary bodies continue to play the primary role in regulating the

conduct of all attorneys, including those who work for the federal

government. Further, Department of Justice attorneys continue to be

subject to state bar ethical rules except to the limited extent those

rules conflict with lawful federal procedures and practices. As noted

above, however, because of the expanded participation of federal

prosecutors in preindictment investigations, DR 7-104 and Model Rule

4.2 have inevitably affected and circumscribed the power of federal law

enforcement officials to carry out their legally mandated

responsibilities. State courts and disciplinary committees are not the

appropriate final arbiters of the scope of federal policing. The

Department of Justice must assume this role, subject to the

Constitution and the laws of the United States. The new regulations

would not supplant state discipline. Rather, the regulations would

provide that attorneys who comply with the new federal rule will be

shielded from inconsistent state disciplinary rules. On the other hand,

attorneys who willfully violate the new regulations would continue to

be subject to the full measure of state disciplinary jurisdiction.

The Department is confident that, taken together, the proposed

regulations, Manual amendments and this supplemental information will

promote the public interest in effective law enforcement conforming to

the highest standards of legal ethics.

II. Analysis of Comments and Revisions

A detailed discussion of the comments received following the first

publication of the earlier proposal is included at 58 FR 39976 (July

26, 1993).

The comments received following the second publication of the

earlier proposal were similar in many respects to those received in the

first round of comments. As of September 19, 1993, the Department

received 219 written comments. Of those, 159 comments were received

from Department of Justice employees. Of those, 144, mostly from

federal prosecutors from around the country, supported promulgation of

the earlier proposal; 1 opposed the rule; and 14 others provided

miscellaneous comments. The Department also received 21 comments from

federal officials outside the Department, 18 of whom supported the

proposal.

The Department received 39 comments from individuals and

organizations outside of the federal government. These writers included

private attorneys, public defenders, state court judges, bar

associations, disciplinary officials and others. Twenty-eight writers

in that group expressed opposition to the rule while 3 supported the

proposal.

Those writing in support of the earlier proposal generally

emphasized three major points. First, they stated that a clear rule

governing communications by federal attorneys with represented

individuals was critical to the vigorous enforcement of federal law.

Several writers stated that the lack of clarity on the matter created

by a variety of court and bar association opinions has had a chilling

effect on federal enforcement efforts. They stated that some federal

prosecutors fearful of the uncertain state of the law and unwilling to

risk their licenses to practice law have decided not to engage in

routine discussions with represented individuals. Second, several

writers described the practice of some attorneys to claim

representation of all the employees of a corporate client. They argued

that this practice, along with the uncertainty of the state of the

disciplinary rules, often makes it exceedingly difficult to investigate

wrongdoing by corporations or other organizations. Third, several

supporters of the previous proposal stated that they did not believe

that it was the intention of DR 7-104 and Model Rule 4.2 to apply to

criminal investigations. Furthermore, they argued that if the

prohibitions in those rules apply to all federal criminal and civil

investigations the result will be twofold: (1) Federal attorneys will

be forced to reverse the trend of the last 20 years and become less

involved in investigations; and (2) federal agents will stop consulting

with federal attorneys during investigations. Both of these trends will

result in less effective law enforcement.

The Department received several comments critical of the earlier

proposal. Those criticisms fall generally in four categories. First,

several individuals stated that they believed the proposal would exempt

Department attorneys from ethical requirements that apply to all other

attorneys, thus creating a double standard. Furthermore, they argued

that the proposal improperly equated constitutional minimums with

ethical conduct. Second, several writers argued that the Attorney

General did not have the authority to promulgate such a regulation.

They argued that the proposal unfairly impinged on the traditional

right of state supreme courts to monitor and discipline attorneys

admitted to practice before them. They also questioned whether the

drafters of the ``authorized by law'' exceptions could have intended

that the Attorney General would be empowered to release Department

attorneys from the obligations of the rules simply by issuing a

regulation.

Third, several people argued that the proposed regulation was not

necessary for the vigorous enforcement of the law. And fourth, several

writers commented on various aspects of the proposal itself. The most

common objection was to the ``controlling individual'' test that the

proposal used to determine whether communications with a particular

employee of a represented corporation would be permissible. They argued

that the test was much too narrow and would only apply to a

corporation's general counsel and a small handful of very senior

executives.

The Department has reviewed, analyzed and carefully considered all

the comments it received and has made substantial revisions to its

earlier proposal based on these comments. The Department believes the

current proposal, in combination with the proposed additions to the

United States Attorneys' Manual, appropriately addresses the concerns

of the commenters critical of the earlier proposal, while preserving

the Department's ability to enforce federal laws. Due to the

significant nature of the changes made, the Department determined that

an additional comment period is appropriate.

III. Section-by-Section Analysis

Section 77.1 Purpose and Authority

This section includes no material changes from the rule published

earlier. It does, however, include additional discussion regarding the

purpose of the rule.

The Attorney General's authority to establish standards of conduct

for Department of Justice attorneys derives from two distinct sources:

Section 301 of title 5, United States Code, and title 28 of the United

States Code, which, through a variety of provisions, authorizes the

Attorney General and the Department of Justice to enforce federal law.

Section 301 states that ``[t]he head of an Executive department or

military department may prescribe regulations for the government of his

department, the conduct of its employees, [and] the distribution and

performance of its business.'' Authority to promulgate this rule also

is implicit in the Attorney General's statutory power 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. Other specific

statutory references are indicated in the text of the rule.

Section 77.2 Definitions

This section is substantially similar to the definitional section

of the previous proposal. Two changes, however, are worthy of

attention:

``Attorney for the Government''

First, the definition of ``attorney for the government'' has been

refined explicitly to exclude from the definition those 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 proposed rule specifically

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

government as investigative agents and not as attorneys.

``Undercover Investigation''

Second, the section now includes a definition of the term

``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 virtually 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 differs significantly from the corresponding section

in the earlier proposal in order more closely to follow the language in

DR 7-104(a)(1) and Rule 4.2, which establish general prohibitions

against ex parte contacts with a represented party, and to

differentiate between those individuals who are represented by counsel

and have become a party to a proceeding, and those represented

individuals who are not parties to any relevant proceedings.

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

these rules 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 are considered

represented persons under this rule and in the United States Attorneys'

Manual guidelines.

Section 77.5 of this rule generally prohibits government attorneys

from initiating ex parte contacts with represented parties, but does

not prohibit ex parte contacts with represented persons. (However,

Secs. 77.8 and 77.9 prohibit some contacts with represented persons as

well.) This distinction between represented parties and represented

persons is consistent with the rulings of the vast majority of federal

courts to consider the issue. See 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. Ryans, 903 F.2d 731, 739 (10th Cir.) (``We are not

convinced that the language of [DR 7-104(A)(1)] 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.''), cert. denied,

498 U.S. 855 (1990); 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. Kenny, 645 F.2d 1323,

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

Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973), 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) (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. Western Electric Co.,

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

United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987);

Faragher v. National R.R. Passenger Corp., 1992 U.S. Dist. LEXIS 1810

at *2-3 (E.D. Pa. 1992). Only the Second Circuit has suggested that DR

7-104(A)(1) may apply to federal law enforcement activities before

indictment or arrest. See United States v. Hammad, 858 F.2d 834, 838-39

(2d Cir. 1988); 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).

Section 77.4 Constitutional and Other Limitations

This section is substantially similar to the corresponding section

in the earlier proposal. The section has been revised slightly to make

clear that although the proposed rule does 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.

Section 77.5 General Rule for Civil and Criminal Enforcement;

Represented Parties

This section, as well as sections 77.6 through 77.9, differs

substantially from corresponding sections contained in the earlier

proposal.

This section closely tracks the language of DR 7-104(A)(1) and 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 Sec. 77.3, about the subject

matter of the representation without the consent of that individual's

attorney. The prohibition applies, however, 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, a government investigator acting at the attorney's

direction and control may not 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.''

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.

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 who the Department attorney knows is represented

concerning the subject matter of the representation without first

obtaining the consent of the represented party's counsel. The

exceptions enumerated in this section are similar to, but not identical

with, the exceptions enumerated in Sec. 77.7 of the earlier proposal.

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.

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 may arise when a judicial or other

appearance has not occurred, but the government attorney has some

information suggesting that the person may be represented. It may also

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,

since the court must approve termination of representation.

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).

This exception is not intended to and does not create a duty on the

part of the attorney for the government to inquire about the status of

representation. However, if the attorney for the government has any

reason to believe that the individual is represented by counsel with

regard to the relevant subject matter, he or she should, as a matter of

course, make the appropriate inquiries before engaging in substantive

discussions with the individual.

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, 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). This provision ensures that such

communications continue to be allowed.

This exception does not purport to authorize any communications not

otherwise available pursuant to discovery procedures or legal process.

Paragraph (c): Initiation of Communication by Represented Party

One of the concerns most frequently raised by Department attorneys

during the comment period on the previous proposal was the lack of

clarity under current law regarding the propriety of communicating with

a represented party, in the absence of that party's counsel, when the

communication is initiated by the party. A defendant may wish to

communicate with the government outside the presence of counsel for

many valid reasons. Department attorneys repeatedly cited the situation

in which a defendant wants to cooperate with the government but does

not want his or her attorney to know for fear that the attorney will

disclose the defendant's intentions to others. This situation typically

arises when the defendant questions the loyalty of his or her attorney,

who is being paid by another individual involved in a criminal

enterprise. 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 to enforce vigorously 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 require such a result.

This paragraph amends the previous proposal by adding 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, the proposed rule requires that

several steps be taken before any substantive discussions take place.

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 waive his or her right to counsel in such a

way as to indicate that the waiver is voluntary, knowing and informed.

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 or other tribunal of competent jurisdiction. The court

should be asked for a determination: That the waiver satisfies the

provisions of this rule; or that substitute counsel is in place and

that counsel consents to the communication; or, in the alternative,

that it is appropriate for the court to appoint counsel.

The rule does not, however, require that the waiver take place

before the judge or magistrate. In exceptional circumstances, it may be

impractical or unsafe to bring the defendant before a judge or

magistrate to secure the waiver. In those cases, the tribunal must

determine in advance of substantive discussions, based on the evidence

before it, whether the waiver was made knowingly, intelligently and

voluntarily.

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.

Paragraph (d): Waivers at the Time of Arrest

Paragraph (c) of this section provides the general rule regarding

how a represented party may waive any protections otherwise provided

under this regulation. This paragraph provides for a more specific rule

dealing with a waiver at the time of arrest.

This paragraph provides that a government attorney may communicate

directly with a represented party without the consent of that party's

counsel at the time of his or her arrest if 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.

However, it is generally prudent to obtain a written waiver at the time

of arrest if possible.

This exception is intended to preserve the ability of government

attorneys to interview individuals immediately following arrest as an

effective and important law enforcement tool. A substantial body of law

has developed regarding the post-arrest waiver of various

Constitutional rights. The Department believes that the Constitutional

requirements identified 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.

Paragraph (e): Investigation of Additional, Different or Ongoing Crimes

or Civil Violations

This paragraph is similar to, but not identical with, Sec. 77.7(d)

of the previously published proposal.

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 neither been 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 them.

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 that are

intended to impede the trial of the charged crime or unlawful conduct,

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 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.

By definition, communications pursuant to this exception will take

place when the represented party is the subject of pending criminal or

civil enforcement charges for which he or she is represented by

counsel. Government attorneys must take extreme care to avoid violating

the Sixth Amendment right to counsel whenever they invoke this

exception in the criminal context. In particular, care must be taken to

avoid the deliberate elicitation of incriminating information regarding

any pending criminal charges.

Paragraph (f): Imminent Threat to Safety or Life

The Supreme Court has recognized that, in certain limited

situations, otherwise applicable constitutional requirements may be

suspended by the need to guard against threats to public safety. 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''). Paragraph

(f) 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.

Section 77.7 Civil and Criminal Enforcement; Represented Persons

As addressed in the discussion of Sec. 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

Secs. 77.8 and 77.9. Furthermore, proposed changes to the United States

Attorneys' Manual included in this commentary will provide additional

guidance to Department attorneys in such situations.

Section 77.8 Represented Persons and Represented Parties; Plea

Negotiations

This section prohibits government attorneys from initiating or

engaging in negotiations of certain specified legal agreements with any

individual who the government attorney knows is represented by counsel,

without the consent of that individual's counsel. Even when substantive

discussions with a represented party or represented person are

permissible under these regulations, 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 in the absence 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 Sec. 77.6(c) are satisfied.

The Department believes that this section is vitally important for

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

primary purposes informing Rule 4.2 and DR 7-104 is that an individual

represented by counsel should be protected from overreaching by an

attorney for an adversary. The Department believes the risk of such

overreaching is 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 discussions

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 claims or immunity without the presence or consent

of counsel.

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 Sec. 77.6, or

with a represented person pursuant to Sec. 77.7, the communication is

nevertheless subject to the restrictions of this section.

Paragraph (a): Deference to Attorney-Client Relationship

DR 7-104(A)(1) and Rule 4.2 protect a represented party's right, if

he or she so chooses, to communicate with his or her adversary only

through counsel. The rules do not compel one to make that choice, and

the represented party may elect to speak directly with the government

despite his or her attorney's advice not to do so. As a further

protective measure, 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 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

these circumstances, 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 would require 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.

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 (informant went to meeting

``not to spy, but because he was asked and because the State was

interested in retaining his undercover services on other matters and it

was therefore necessary to avoid raising the suspicion that he was in

fact the informant whose existence [the defendant and his counsel]

already suspected'').

However, even when an undercover operative's attendance at such a

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

Sec. 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 avoid taking any role in the shaping of

defense strategy or trial preparations. Finally, agents and informants

should be instructed to avoid imparting defense strategy or trial

preparation information to any other law enforcement officials if

reasonably feasible to do so.

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).

Section 77.10 Organizations and Employees

This section is similar in structure to Sec. 77.13 of the

previously published proposal. However, it includes several substantive

changes based on comments received during earlier comment periods.

The issue addressed by this section--when should a communication

with an employee or member of a represented organization be considered

a communication with the organization itself--is one of the most

difficult issues addressed by these regulations. It was also perhaps

the most commented upon provision during the comment period. Several

federal prosecutors commented that they regularly encounter attorneys

who assert that they represent every individual in a large corporation

or organization. Others stated that these blanket claims of

representation extend to all the former employees as well. These

prosecutors argued for a bright line rule to prevent such abuse and

generally commented favorably on the earlier proposal. Others argued

that the earlier proposal was too narrow in scope and would deprive

corporations and other organizations of the effective assistance of

counsel.

The Department believes that this section, and particularly the

definition of ``controlling individual'' in Sec. 77.10(a), 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 considered to be a communication with a represented

organization under these rules (that is, if the communication is with a

controlling individual), then that communication is subject to the same

limitations that would apply if the communication were directly with

the represented organization.

In accord with the basic structure of this part, 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 (subject to the exceptions

enumerated in Sec. 77.6), with any controlling individual of the

organization without the consent of the organization's attorney. 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 if the communication does

not involve 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, as prohibited by Sec. 77.8, and if the communication does

not violate the provisions of Sec. 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.

DR 7-104 and Rule 4.2 are intended to protect the attorney-client

relationship from unnecessary interference and to protect represented

parties from overreaching by opposing counsel. 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''

consistent with the principles underlying the disciplinary rules on ex

parte contacts.

Of all the issues pertaining to 7-104(A)(1), the issue of

organizational representation has engendered the greatest confusion and

disagreement among the lower federal courts. Courts considering the

question have applied a variety of modes of analysis, either singly or

in combination. The Department believes the best approach is that

adopted by those courts that have attempted to identify an

organization's ``control group.'' See, e.g., Shealy v. Laidlaw Bros.,

34 FEP Cases 1223, 1225 (D.S.C. 1984) (a corporate ``party'' under DR

7-104(A)(1) includes ``a person whose employer's interests are, by

virtue of his position of employment, so close to his own and to his

heart that he could be depended upon in all events to carry out his

employer's direction''); B.H. by Monahan v. Johnson, 128 F.R.D. 659,

663 (N.D. Ill. 1989) (``only `those individuals who can bind it [the

defendant] to a decision or settle controversies on its behalf' would

be considered parties for purposes of DR 7-104''); Frey v. Department

of Health & Human Servs., 106 F.R.D. 32, 35 (E.D.N.Y. 1985) (``the Rule

applies to those employees of a government agency who are the `alter

egos' of the entity, that is, those individuals who can bind it to a

decision or settle controversies on its behalf''); Fair Auto. Repair v.

Car-X Serv. Systems, 128 Ill.App.3d 763, 771, 471 N.E.2d 554, 560

(1984) (DR 7-104(A)(1) prohibits ex parte contacts with corporate

defendant's ``control group,'' defined as ``those top management

persons who had the responsibility of making final decisions and those

employees whose advisory roles to top management are such that a

decision would not normally be made without those persons' advice or

opinion or whose opinions in fact form the basis of any final

decision'').

The Department believes that the ``control group'' approach most

accurately reflects the values underlying DR 7-104(A)(1) and Rule 4.2.

This approach properly seeks to identify those employees who exercise

such sufficient authority within the organization that communications

with them should be regarded as communications with the organization

itself. The Department also believes that the alternative approaches

would impose unacceptable constraints on federal law enforcement.

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 proposed 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).

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 section 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 part 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

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 regulations 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 part.

Paragraph (d): Communications With Separately Represented Controlling

Individuals

This paragraph ensures that communications with a controlling

individual of an organization that qualifies as a represented party are

subject to basically the same limitations, regardless of whether the

controlling individual has retained separate counsel on the same

subject matter. Thus, this paragraph only applies in the circumstances

in which a controlling individual of a represented organizational party

retains 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 Secs. 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.

Paragraph (e): Communications With 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 Sec. 77.6(c) must be satisfied

before any substantive communications are made.

Paragraph (f): Multiple Representation

This paragraph makes clear that the proposed regulations should not

be construed as altering existing legal and ethical rules regarding the

propriety of multiple representation.

Section 77.11 Enforcement of Rules Paragraph (a): Enforcement by

Attorney General

In order to ensure consistency and uniformity in the interpretation

of the proposed rule, this paragraph provides that the Attorney General

shall have exclusive authority to enforce these regulations. Thus,

neither state courts nor state disciplinary boards may impose sanctions

on a Department attorney for violations of this rule or state or local

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

these regulations. It provides that the Department's Office of

Professional Responsibility (``OPR'') shall have jurisdiction to

investigate such allegations and that violations will be treated as

matters of attorney discipline. See 28 CFR 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.

Paragraph (b): No Private Remedies

This paragraph provides that the proposed regulations are not

intended and will not create any substantive rights for any person

other than an attorney for the government. In particular, a violation

of the rule 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.

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. These proposed rules, as

substantive regulations duly promulgated by the Attorney General

pursuant to statutory authority, have the force and effect of law. See

e.g. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). 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

will therefore be consistent with state rules wherever state bar

authorities have adopted a rule containing the ``authorized by law''

exception. Furthermore, no conflict will arise between state and

federal law in those jurisdictions with regard to communications with

represented persons.

In those states that do not currently include an ``authorized by

law'' exception or repeal current provisions, the proposed rule may

conflict with their provisions governing communications with

represented parties. The second sentence of this section provides that

in those cases the proposed regulations will preempt the application of

conflicting state and local rules as they relate to contacts by

Department of Justice attorneys. The longstanding position of the

Department is that the Supremacy Clause bars ``any attempt by a state

bar association to impose sanctions on a government attorney who is

acting lawfully and in pursuance of his federal law enforcement

responsibilities.'' See Ethical Restraints of the ABA Code of

Professional Responsibility on Federal Criminal Investigations, 4B Op.

O.L.C. 576, 601-02 (1980). It is clear that a Department regulation

published after notice and comment constitutes ``federal law.'' See,

e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) (``It has been

established in a variety of contexts that properly promulgated,

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

It is also clear that a properly promulgated Department rule is binding

upon state authorities and supersedes contrary provisions of state law.

The Supreme Court has recognized that ``[f]ederal regulations have no

less pre-emptive effect than federal statutes.'' Fidelity Fed. Sav. &

Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153 (1982). Accord, e.g.,

City of New York v. FCC, 486 U.S. 57, 63 (1988) (``[t]he phrase `Laws

of the United States' [in the Supremacy Clause] encompasses both

federal statutes themselves and federal regulations that are properly

adopted in accordance with statutory authorization''); Capital Cities

Cable, Inc. v. Crisp, 467 U.S. 691, 698-700 (1984).

Accordingly, to the extent the proposed regulations conflict with

state law, the regulations preempt the conflicting state law.

This section does, however, provide an important exception. If the

Attorney General finds that a Department attorney has willfully

violated these regulations, preemption will not apply. As a result, a

government attorney who willfully engages in communications that

violate these rules will be subject to disciplinary proceedings both by

the Department and by the appropriate state disciplinary authorities.

IV. United States Attorneys' Manual

In addition to the promulgation of the proposed regulations

discussed above, the Department proposes to add several new provisions

to the United States Attorneys' Manual to provide additional guidance

to Department attorneys when dealing with individuals or entities

represented by counsel during criminal or civil law enforcement

investigations and proceedings. Those provisions are set forth in full

below as part of this commentary.

The decision to include some restrictions in the Manual while other

restrictions are contained in the rule was an important one. 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 regulations should be broad in scope and should provide

unambiguous guidance that would not adversely affect federal law

enforcement efforts. Thus, the regulations distinguish between the

investigative period before indictment, arrest, or the filing of a

complaint and the period after arrest or the commencement of formal

proceedings. They also distinguish between communications that are part

of a factual investigation and negotiations of plea agreements,

settlements and similar legal arrangements. At the same time, the

Manual revisions 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 these

provisions. Failure to do so will result in appropriate departmental

discipline.

There are two especially important provisions that should be

addressed.

First, Sec. 9-13.240 prohibits a government attorney from

communicating with a person known to be represented by counsel who the

government attorney knows is a target of a federal criminal or civil

enforcement investigation. The Manual provides several exceptions to

this general prohibition, 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

Constitutional 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. In addition, Sec. 9-13.220 provides an exception to

the general prohibition if the communication is made in the course of

an undercover investigation.

``Target'' is defined as a ``person as to whom the attorney for the

government has substantial evidence linking that person to the

commission of a crime or to other wrongful conduct and as to whom the

attorney for the government anticipates seeking an indictment or naming

as a defendant in a civil law enforcement proceeding.'' 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 an extension of the prohibition contained in the

rule is appropriate.

In its enforcement of this 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 will probably be named as a defendant, that

individual is not 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 is not enough. Thus, an individual is not considered a target

under this rule 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 second provision that should be noted is the approval procedure

provided in Sec. 9-13.250. Under that provision, before an attorney for

the government communicates with any represented party or target, the

government attorney should obtain the approval of the United States

Attorney if the attorney is an Assistant United States Attorney, or the

approval of another appropriate supervisor. The provision also permits

contacts when prior approval is not feasible, and requires post-contact

documentation.

Additions to the United States Attorneys' Manual

The entire text of the planned additions to the Manual follows:

The following new section is added to title 9, chapter 13.

9-13.200 Communications With Represented Persons

9-13.210 Generally

28 CFR part 77 generally governs communications with represented

persons in law enforcement investigations and proceedings. This section

sets forth several additional departmental policies and procedures with

regard to such communications.

Department of Justice attorneys should recognize that

communications with represented persons at any stage may present the

potential for undue interference with attorney-client relationships and

should undertake any such communications with great circumspection and

care. This Department as a matter of policy will respect bona fide

attorney-client relationships whenever possible, consistent with our

law enforcement responsibilities and duties.

The rules set forth in 28 CFR part 77 are intended, among other

things, to clarify the circumstances under which government attorneys

may communicate with represented persons. They are not intended to

create any presumption that communications are necessary or advisable

in the course of any particular investigation or proceeding. Whether

such a communication is appropriate in a particular situation is to be

determined by the government attorney (and, when appropriate, his or

her supervisors) in the exercise of his or her discretion, based on the

specific circumstances of the individual case.

Furthermore, the application of this section, like the application

of 28 CFR part 77, is limited to communications between Department of

Justice attorneys and persons known to be represented by counsel during

criminal investigations and proceedings or civil law enforcement

investigations and proceedings. These provisions do not apply to

Department attorneys engaged in civil suits in which the United States

is not acting under its police or regulatory powers. Thus, state bar

rules and not these provisions will generally apply in civil suits when

the government is a defendant or a claimant.

Attorneys for the government are strongly encouraged to consult

with appropriate officials in the Department of Justice when the

application or interpretation of 28 CFR part 77 may be doubtful or

uncertain. The primary points of contact at the Department of Justice

on questions regarding 28 CFR part 77 and this section are the

Assistant Attorneys General of the Criminal and Civil Divisions, or

their designees.

9-13.220 Communications During Investigative Stage

Section 77.7 of title 28, Code of Federal Regulations, generally

permits communications with represented persons outside the presence of

counsel that are intended to obtain factual information in the course

of criminal or civil law enforcement investigations before the person

is a defendant or is arrested in a federal criminal case, or is a

defendant in a federal civil enforcement proceeding. Such

communications must, however, have a valid investigative purpose and

comply with the procedures and considerations set forth below.

During the investigative stage of a case, an attorney for the

government may communicate, or cause another to communicate, with any

represented person, including a ``target'' as defined in section 9-

13.240, concerning the subject matter of the representation if the

communication is made in the course of an undercover investigation of

possible criminal or wrongful activity. Undercover communications

during the investigative stage must be conducted in accordance with 28

CFR Sec. 77.2(f), and relevant policies and procedures of the

Department of Justice, as well as the guidelines for undercover

operations of the federal law enforcement agency conducting the

investigation (e.g., the Attorney General's Guidelines on FBI

Undercover Operations).

Overt communications during the investigative stage are subject to

the procedures and considerations set forth in sections 9-13.230 - 9-

13.233 and 9-13.240 - 9-13.242, below.

9-13.230 Overt Communications With Represented Persons

During the investigative stage of a criminal or civil enforcement

matter, an attorney for the government as a general rule should

communicate overtly with represented persons outside the presence of

counsel only after careful consideration of whether the communication

would be handled more appropriately by others. Attorneys for the

government may not, however, cause law enforcement agents to make

communications that the attorney would be prohibited from making

personally.

28 CFR 77.8 prohibits an attorney for the government from

initiating or engaging in negotiations of a plea agreement, immunity

agreement, settlement, sentence, penalty or other disposition of actual

or potential civil or criminal charges with a represented person

without the consent of counsel. Discussion of the terms of a particular

plea agreement, immunity agreement or other agreement covered by the

rule is prohibited. However, the attorney for the government is not

prohibited from responding to questions regarding the general nature of

such agreements, potential charges, potential penalties or other

subjects related to such agreements. In such situations, an attorney

for the government should take care not to go beyond providing

information on these and similar subjects, and generally should refer

the represented person to his or her counsel for further discussion of

these issues, as well as make clear that the attorney for the

government will not negotiate any agreement with respect to the

disposition of criminal charges, civil claims or potential charges or

claims or immunity without the presence or consent of counsel.

9-13.231 Overt Communications With Represented Persons--Presence of

Witness

An attorney for the government should not meet with a represented

person without at least one witness present. To the extent feasible, a

contemporaneous written memorandum should be made of all communications

with the represented person.

9-13.232 Overt Communications With Represented Persons--Restrictions

When an attorney for the government communicates, or causes a law

enforcement agent or other agent to communicate, with a represented

person without the consent of counsel, the restrictions set forth in 28

CFR Secs. 77.8 and 77.9 must be observed.

9-13.233 Overt Communications-- Assurances Not To Contact Client

During the investigative stage, and absent compelling law

enforcement reasons, an attorney for the government should not

deliberately initiate an overt communication with a represented person

outside the presence of counsel if the attorney for the government has

provided explicit assurances to counsel for the represented person that

no such communication will be attempted and no intervening change in

circumstances justifying such communications has arisen.

9-13.240 Overt Communications With Represented Targets

Except as provided in section 9-13.241 or as otherwise authorized

by law, an attorney for the government should not overtly communicate,

or cause another to communicate overtly, with a represented person who

the attorney for the government knows is a target of a federal criminal

or civil enforcement investigation and 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 person. A ``target'' is a person as to whom the

attorney for the government has substantial evidence linking that

person to the commission of a crime or to other wrongful conduct and as

to whom the attorney for the government anticipates seeking an

indictment or naming as a defendant in a civil law enforcement

proceeding. An officer or employee of an organization that is a target

is not to be considered a target automatically even if such officer's

or employee's conduct contributed to the commission of the crime or

wrongful conduct by the target organization; likewise, organizations

that employ, or employed, an officer or employee who is a target are

not necessarily targets themselves.

9-13.241 Overt Communications With Represented Targets--Permissible

Circumstances

An attorney for the government may communicate overtly, or cause

another to communicate overtly, with a represented person who is a

target of a criminal or civil law enforcement investigation 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 target is in fact represented by counsel

concerning the subject matter of the investigation or proceeding.

(b) Discovery or Judicial Administrative Process. The

communication is made pursuant to discovery procedures or judicial

or administrative process, including but not limited to the service

of a grand jury or trial subpoena, testimony before a grand jury,

service of a summons and complaint, notice of deposition, taking of

a deposition, administrative summons or subpoena or civil

investigative demand.

(c) Initiation of Communication by Represented Person. The

represented person initiates the communication directly with the

attorney for the government or through an intermediary and, 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 represented person's right to speak through his or

her attorney and/or to have the 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.

(d) Waivers at the Time of Arrest. The communication is made at

the time of the arrest of the represented person, and he or she is

advised of his or her constitutional rights and voluntarily and

knowingly waives them.

(e) Investigation of Additional, Different or Ongoing Crimes or

Wrongful Conduct. The communication is made in the course of an

investigation of additional, different or ongoing criminal or

wrongful conduct that is separate from or committed after the

criminal or wrongful activity as to which the person is a target.

(f) Threat to Safety or Life. The attorney for the government

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 harm; and the attorney

for the government believes that the communication is reasonably

necessary to protect against such risk.

(g) Effective Performance of Law Enforcement Functions. The

Attorney General, the Deputy Attorney General, the Associate

Attorney General, an Assistant Attorney General or a United States

Attorney: (i) Determines that exceptional circumstances exist such

that, after giving due regard to the importance as reflected in 28

CFR part 77 and this section of avoiding any undue interference with

the attorney-client relationship, the direct communication with a

represented party is necessary for effective law enforcement; and

(ii) authorizes the communication. Communications with represented

parties pursuant to this exception shall be limited in scope

consistent with the exceptional circumstances of the case and the

need for effective law enforcement.

9-13.242 Overt Communications With Represented Targets Organizations

and Employees

Overt communication with current high-level employees of

represented organizations should be made in accordance with the

procedures and considerations set forth in section 9-13.241 above, in

the following circumstances:

(a) The current high-level employee 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 of the communication; and

(b) the organization is a target.

9-13.250 Communications During Investigative Stage Office Approval

Procedure

Before communicating, or causing another to communicate, with a

target the attorney for the government knows is represented by counsel

regarding the subject matter of the communication, the attorney for the

government should write a memorandum describing the facts of the case

and the nature of the intended communication. The memorandum should be

sent to and approved by the appropriate supervisor before the

communication occurs. In United States Attorney's Offices, the

memorandum should be reviewed and approved by the United States

Attorney. If the circumstances of the communication are such that prior

approval is not feasible, the attorney for the government should write

a memorandum as soon after the communication as practicable and provide

a copy of the memorandum to the appropriate supervisor. This memo

should also set forth why it was not feasible to obtain prior approval.

The provisions of this section do not apply if the communication with

the represented target is made at the time of arrest pursuant to

section 9-13.241(d).

9-13.260 Enforcement of the Policies

Appropriate administrative action may be initiated by Department

officials against prosecutors who violate the policies regarding

communication with represented persons.

* * * * *

The following new section is added to title 4, chapter 8.

4-8.1300 Communications With Represented Persons

Communications with represented persons in civil law enforcement

investigations and proceedings are governed generally by the rules set

forth in 28 CFR part 77 and by USAM 9-13.200 et seq.

* * * * *

V. 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 proposed to be 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.

77.9 Represented persons and represented parties; respect for

attorney-client relationships.

77.10 Organizations and employees.

77.11 Enforcement of rules.

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 ABA Model Rule are available through Order Fullfillment

Office, American Bar Association, 750 North Lake Shore Drive, Chicago,

IL 60611.

(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; 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) Person means any individual or organization.

(c) 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.

(d) Employee means any employee, officer, director, partner,

member, or trustee.

(e) 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.

(f) 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.

(g)(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.

(h) 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.

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) of this section 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, including, but not limited to, the service of a

grand jury or trial subpoena, testimony before a grand jury, service of

a summons and complaint, notice of deposition, taking of a 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,

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 constitutional rights 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.

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 forgo 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:

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 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

party, and 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.

(e) Communications with unrepresented controlling individuals.

Notwithstanding any other provision of this part, an attorney for the

government may communicate with a controlling individual who is not

individually represented as to the subject matter of the communication

when the controlling 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 party, and

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.

(f) Multiple representation. Nothing in this section is intended or

shall be construed to affect the requirements of Rule 44(c) of the

Federal Rules of Criminal Procedure, or to permit the multiple

representation of an organization and any of its employees, or the

multiple representation of more than one such employee, if such

representation is prohibited by any applicable law or rule of attorney

ethics.

Sec. 77.11 Enforcement of this part.

(a) Exclusive enforcement by Attorney General. The Attorney General

shall have exclusive authority over this part and any violations of it,

except as provided in Sec. 77.12. Allegations of violations of this

part shall be investigated exclusively by the Office of Professional

Responsibility of the Department of Justice, and shall be addressed

when appropriate as matters of attorney discipline by the Department.

The findings of the Attorney General or her designee as to an

attorney's compliance or non-compliance with this part shall be final

and conclusive except insofar as the attorney for the government is

afforded a right of review by other provisions of law.

(b) No private remedies. This part is not intended to and does not

create substantive rights on behalf of criminal or civil defendants,

targets or subjects of investigations, witnesses, counsel for

represented parties or represented persons, or any other person other

than an attorney for the government, and shall not be a basis for

dismissing criminal or civil charges or proceedings against represented

parties or for excluding relevant evidence in any proceeding in any

court of the United States.

Sec. 77.12 Relationship to state and local regulation.

Communications with represented parties and represented persons

pursuant to this part are intended to constitute communications that

are ``authorized by law'' within the meaning of Rule 4.2 of the

American Bar Association Model Rules of Professional Conduct, DR 7-

104(A)(1) of the ABA Code of Professional Responsibility, and analogous

state and local federal court rules. (Copies of the ABA Model Rules and

Code are available through Order Fulfillment Office, American Bar

Association, 750 North Lake Shore Drive, Chicago, IL 60611.) In

addition, this part is intended to preempt the application of state and

local laws or rules to the extent that they relate to contacts by

attorneys for the government, and those acting at their direction or

under their supervision, with represented parties or represented

persons in criminal and civil investigations and litigation. This part

is designed to govern the conduct of attorneys for the government in

the discharge of their duties to the extent that state and local laws

or rules are inconsistent with this part. When the Attorney General

finds a willful violation of any of the rules in this part, however,

sanctions for the violation of this part may be applied, if warranted

by the appropriate state disciplinary authority.

Dated: February 22, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-4510 Filed 3-2-94; 8:45 am]

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