Ethical Standards for Attorneys for the Government

DEPARTMENT OF JUSTICE

28 CFR Part 77

[AG Order No. 2216-99]

Ethical Standards for Attorneys for the Government

AGENCY: Department of Justice.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule supersedes the Department of Justice regulations

relating to Communications with Represented Persons and implements 28

U.S.C. 530B pertaining to ethical standards for attorneys for the

government. Under that provision, an attorney for the Government shall

be subject to State laws and rules, and local federal court rules

governing attorneys in each State where such attorney engages in that

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

attorneys in that State. This rule fulfills the Attorney General's

obligation under section 530B and provides guidance to all Department

of Justice employees who are subject to section 530B regarding their

obligations and responsibilities under this new provision.

DATES: Effective Date: This interim rule is effective April 19, 1999.

Comment Date: Written comments must be submitted on or before June

21, 1999.

ADDRESSES: Please submit written comments, in triplicate, to Department

of Justice, Justice Management Division, 950 Pennsylvania Ave., NW.,

Room 1110, Washington, DC 20530-0001 Attn: Juliet A. Eurich. To ensure

proper handling, please refer to 28 U.S.C. 530B on your correspondence.

Comments are available for public inspection at the above address by

calling 202-353-7300 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Juliet A. Eurich, Justice Management

Division, Department of Justice, 202-353-7300.

SUPPLEMENTARY INFORMATION:

Background

On October 21, 1998, the President signed the Omnibus Consolidated

and Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277.

Division A, section 801 of that Act enacted into law 28 U.S.C. 530B,

entitled ``Ethical Standards for Federal Prosecutors.'' That statute

provides as follows:

``(a) An attorney for the Government shall be subject to State laws

and rules, and local Federal court rules, governing attorneys in each

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

same extent and in the same manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the

Department of Justice to assure compliance with this section.

(c) As used in this section, the term ``attorney for the

Government'' includes any attorney described in Sec. 77.2(a) of part 77

of title 28 of the Code of Federal Regulations and also includes any

independent counsel, or employees of such a counsel, appointed under

chapter 40.''

Absent further congressional action, 28 U.S.C. 530B will become

effective on April 19, 1999.

The Department is publishing this interim rule to meet the

requirement of section 530B(b) that the Attorney General ``make and

amend rules * * * to assure compliance'' with the legislation. Section

530B adopts the definition of the ``attorney for the government'' that

was contained in Sec. 77.2(a) of part 77 (now replaced), with the

exception that the scope of the definition has been expanded to include

an independent counsel, or employee of such counsel, appointed pursuant

to chapter 40 of title 28, United States Code. As made clear by this

definition, section 530B applies only to Department of Justice

attorneys and attorneys acting pursuant to Department authorization. It

does not apply to investigative agents (even if they are attorneys),

although, under the regulations, agents operating under the direction

of a covered attorney will be required to conform their conduct if so

required by the ethical rules that apply to the attorney. Section 530B

also does not apply to attorneys in other federal government agencies,

unless they are appointed as Special Assistant United States Attorneys.

The Department has concluded that the text, title, and legislative

history demonstrate that Section 530B applies only to rules of ethical

conduct, such as codes of professional responsibility

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adopted by states or federal courts. Neither the Act nor its

legislative history suggests that Section 530B should be interpreted to

provide that state rules of evidence or procedure or state substantive

law will supersede the Federal Rules of Evidence, the Federal Rules of

Civil, Criminal, and Appellate Procedure, or the provisions of federal

substantive law. See United States v. Lowery, 166 F.3d 1119 (11th Cir.

1999) (interpreting Section 530B, prior to its effective date, and

rejecting the argument that, under Section 530B, state rules of

professional responsibility govern admission of evidence in federal

court). Accordingly, Department attorneys who are conducting

investigations under federal law or litigation in the federal courts

are not required to comply with state rules of evidence or procedure or

state substantive law. Similarly, the Department has also concluded

that section 530B does not provide authority for state bars or federal

courts to enact substantive or procedural rules in the guise of ethics

rules or to exceed otherwise applicable regulatory, statutory, or

constitutional limits on their ability to promulgate rules.

Under various federal statutes, the Attorney General has the

authority to assign any officer of the Justice Department to appear on

behalf of the United States in any case in any court in the United

States, so long as that attorney is duly licensed and authorized to

practice as an attorney under the laws of a State, territory, or the

District of Columbia. See 28 U.S.C. 509, 510, 515(a), 516, 517, 519,

533, 547; Pub. L. 96-132, 93 Stat. 1040, 1044 (1979); and Pub. L. 105-

277, section 102 of the Departments of Commerce, Justice and State, the

Judiciary, and Related Agencies Appropriations Act, 1999. Section 530B

does not alter, amend, or supersede those statutes, or in any way

interfere with the Attorney General's authority to determine who may

represent the United States in any proceeding.

Section 530B directs Department attorneys to comply with rules of

ethical conduct, but is silent on enforcement mechanisms. For this

reason, section 530B does not change the enforcement authority of the

Department of Justice's Office of Professional Responsibility, state

authorities, or the federal courts. Furthermore, the Department has

determined that Section 530B does not create new enforceable rights for

litigants against the federal government. This comports with the long

line of judicial authority holding that violations of rules of

professional responsibility do not create private rights. See United

States v. Lowery, 166 F.3d 1119, 1124 (11th Cir. 1999) (section 530B

does not change pre-existing principle that ``state rule[s] of

professional conduct cannot provide an adequate basis for a federal

court to suppress evidence that is otherwise admissible''); United

States v. Balter, 91 F.3d 427, 436 n.7 (3rd Cir.) (noting that even if

Rule 4.2 applied to preindictment contracts, suppression would not be

appropriate), cert. denied, 117 S.Ct. 517 (1996); United States v.

Heinz, 983 F.2d 609, 613-14 (5th Cir. 1993) (rejecting proposition that

suppression would be an appropriate remedy for violation of Rule 4.2);

Zambrano v. City of Tustin, 885 F.2d 1473, 1475 n.4 (9th Cir. 1989)

(district court should not have declared mistrial based on ethical

lapses of attorneys); United States v. Dennis, 843 F.2d 652, 657 (2nd

Cir. 1988) (sanction for ethical violations ``should be disciplinary

action,'' not adverse consequences in criminal litigation); Johnson v.

Cadillac Plastic Group, Inc., 930 F.Supp. 1437, 1442 (D.Colo. 1996)

(exclusion of evidence in a civil case is ``an inappropriate remedy''

for alleged violation of Rule 4.2).

Section 530B(a) directs Department attorneys to comply with rules

of ethical conduct ``in each State where such attorney engages in that

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

attorneys in that State.'' The Department has concluded that section

530B does not authorize state authorities to impose stricter rules on

Department attorneys than on other attorneys and in no way alters

prevailing state and federal court rules of ethical conduct that

provide exceptions for the conduct of government attorneys.

Department attorneys represent the United States in courts

throughout the country, and also supervise or otherwise participate in

investigations that cross state lines. Determining what rules apply to

particular conduct presents the most complex issues from both an

interpretation and an application standpoint, especially in instances

involving Department attorneys stationed in litigating components of

the Department of Justice in Washington, DC who investigate and

litigate cases in numerous jurisdictions around the country and in

cases where Department attorneys are licensed in one state and are

stationed or conducting litigation in another jurisdiction. As has

frequently been recognized, ``existing authority as to (the) choice of

law in the area of ethics rules is unclear and inconsistent.'' ABA

Committee Report Explaining 1993 Amendment to Rule 8.5.

In crafting implementing regulations, the Department sought to be

consistent with the statute's language and its legislative history by

attempting to ensure that Department attorneys face obligations similar

to, but not greater than, those faced by non-Department attorneys. The

regulations thus recognize that attorneys are principally subject to

discipline by their state of licensure and the courts before which they

practice. Thus, although Department attorneys are also subject to

discipline by the Office of Professional Responsibility, the

regulations generally direct Department attorneys to look, according to

the circumstances, to the rules of the court before which they are

appearing and the rules of their licensing jurisdiction.

Consequently, the Department crafted regulations that (1) seek to

define the statutory language in a reasonable way, consistent with

settled principles of statutory construction and the legislative

history of section 530B, and (2) identify issues that Department

attorneys should examine when faced with a question about what state's

rule applies. The Department has concluded that the regulations comply

with section 530B's statutory directive to make regulations that will

assure compliance with the statute and, at the same time, provide

reasonable protection for any Department attorney who makes a good

faith attempt to determine what state's ethics rules apply and to

comply with those ethics rules. The decision to replace the

Department's regulation on contacts with represented parties does not

constitute a determination that any of the conduct previously

authorized by those regulations is impermissible.

The regulations generally direct Department attorneys to comply

with the rule of the court before which they are litigating. The

Department believes that this should generally be sufficient, but

Department attorneys should also consider whether their state of

licensure would apply a different rule to their conduct. If there is no

pending case, the regulations direct Department attorneys to comply

with the rules of their state of licensure, but to consider whether

application of choice of law principles would direct the attorney to

comply with a different rule.

Finally, the regulations recognize the importance of consultation

concerning an attorney's ethical responsibilities. The Department

strongly believes that attorneys should be encouraged to consult

concerning their ethical obligations and that agents should be

encouraged to seek legal advice where

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appropriate. The regulations prohibit supervisory attorneys from

directing attorneys or agents to engage in conduct if that would

violate relevant ethics rules, but also recognize that an attorney who,

in good faith, provides legal advice or guidance to an agent (without

otherwise controlling the agent's actions) or gives guidance to an

attorney about that attorney's ethical obligations should not be deemed

to violate these rules.

Administrative Procedures Act 5 U.S.C. 553: Good Cause Exception

The Department is implementing this interim final rule to provide

an interpretation of Section 530B that those affected by that statute

can use as a guide in carrying out their duties. The Department began

the work needed to determine the rules and procedures required to best

comply with section 530B promptly after that statute was enacted into

law in 1998, but found that it was not possible to develop a workable

rule, complete the inter-departmental review process needed to ensure

that the rule adequately responded to the requirements of the statute

and the practical concerns faced by Department attorneys on a daily

basis, and provide a meaningful period of notice and comment before the

statute takes effect on April 19, 1999. It is imperative that

Department attorneys affected by section 530B have some early guidance

concerning the standards of ethical conduct to which they will be held

when that statute goes into effect. Unless guidance is promptly

provided, attorneys for the Department will be left with substantial

uncertainty regarding what rules they must follow in performing their

duties and supervising others. Such uncertainty would run counter to

the purpose of the Act and would likely chill prosecutors in the

discharge of their critical duties. After completing the long and

difficult process of developing regulations that interpret and

adequately respond to the requirements of Section 530B, the Department

is of the view that there is a significant benefit in its receiving

public comments after the interim final rule has been issued.

Accordingly, the Department will provide a sixty day period of comment,

commencing upon the publication of its rule. However, in the unique

circumstances presented, the Department has determined that, in the

interim, the guidance should nonetheless take effect. To the extent

necessary in these circumstances, the Department has determined that

``good cause'' exists for issuing its rule without prior notice and

comment.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving

it, certifies that this regulation will not have a significant economic

impact on a substantial number of small entities because these

regulations provide guidance to those affected by 28 U.S.C. 530B

regarding their obligations under the statute.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with

Executive Order 12866, section 1(b), Principles of Regulation. The

Department of Justice has determined that this rule is not a

``significant regulatory action'' under section 3(f) of Executive Order

12866, Regulatory Planning and Review, and accordingly this rule has

not been reviewed by the Office of Management and Budget.

Executive Order 12612

This regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Executive Order 1988--Civil Justice Reform

This regulation meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and

tribal government, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the

Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.

804. This rule will not result in an annual effect on the economy of

$100,000,000 or more; a major increase in costs or prices; or

significant adverse effects on competition, employment, investment,

productivity, innovation, or on the ability of the United States-based

companies to compete with foreign-based companies in domestic and

export markets.

Plain Language Instructions

We try to write clearly. If you can suggest how to improve the

clarity of these regulations, call or write Robert Hinchman, Department

of Justice, Office of Policy Development, 950 Pennsylvania Avenue, NW.,

Room 4258, Washington, DC 20530-0001, 201-514-8059.

List of Subjects in 28 CFR Part 77

Government employees, Investigations, Law Enforcement, Lawyers.

Accordingly, part 77 of chapter I of title 28 of the Code of

Federal Regulations is revised to read as follows:

PART 77--ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT

Sec.

77.1 Purpose and authority.

77.2 Definitions.

77.3 Application of 28 U.S.C. 530B.

77.4 Guidance.

77.5 No private remedies.

Authority: 28 U.S.C. 530B.

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 implement 28 U.S.C. 530B and

to provide guidance to attorneys concerning the requirements imposed on

Department attorneys by 28 U.S.C. 530B.

(b) Section 530B requires Department attorneys to comply with state

and local federal court rules of professional responsibility, but

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

procedural, or evidentiary law or to interfere with the Attorney

General's authority to send Department attorneys into any court in the

United States.

(c) Section 530B imposes on Department attorneys the same rules of

professional responsibility that apply to non-Department attorneys, but

should not be construed to impose greater burdens on Department

attorneys than those on non-Department attorneys or to alter rules of

professional responsibility that expressly exempt government attorneys

from their application.

(d) The regulations set forth in this part seek to provide guidance

to Department attorneys in determining

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the rules with which such attorneys should comply.

Sec. 77.2 Definitions.

As used in this part, the following terms shall have the following

meanings, unless the context indicates otherwise:

(a) The phrase attorney for the government means the Attorney

General; the Deputy Attorney General; the Solicitor General; the

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

Antitrust Division, Civil Division, Civil Rights Division, Criminal

Division, Environment and Natural Resources Division, and Tax Division;

the Chief Counsel for the DEA and any attorney employed in that office;

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

or in the (Office of General Counsel) of the FBI; any attorney employed

in, or head of, any other legal office in a Department of Justice

agency; any United States Attorney; any Assistant United States

Attorney; any Special Assistant to the Attorney General or Special

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

Assistant United States Attorney duly appointed pursuant to 28 U.S.C.

543 who is authorized to conduct criminal or civil law enforcement

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

other attorney employed by the Department of Justice who is authorized

to conduct criminal or civil law enforcement proceedings on behalf of

the United States. The phrase attorney for the government also includes

any independent counsel, or employee of such counsel, appointed under

chapter 40 of title 28, United States Code.

The phrase attorney for the government does not include attorneys

employed as investigators or other law enforcement agents by the

Department of Justice who are not authorized to represent the United

States in criminal or civil law enforcement litigation or to supervise

such proceedings.

(b) The term case means any proceeding over which a state or

federal court has jurisdiction, including criminal prosecutions and

civil actions. This term also includes grand jury investigations and

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

motions to compel testimony), applications for search warrants, and

applications for electronic surveillance.

(c) The phrase 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.

(d) The phrase civil law enforcement proceeding means a civil

action or proceeding before any court or other tribunal brought by the

Department of Justice under the authority of the United States to

enforce federal laws or regulations, and includes proceedings related

to the enforcement of an administrative subpoena or summons or civil

investigative demand.

(e) The terms conduct and activity means any act performed by a

Department attorney that implicates a rule governing attorneys, as that

term is defined in paragraph (h) of this section.

(f) The phrase Department attorney[s] is synonymous with the phrase

``attorney[s] for the government'' as defined in this section.

(g) The term person means any individual or organization.

(h) The phrase state laws and rules and local federal court rules

governing attorneys means rules enacted or adopted by any State or

Territory of the United States or the District of Columbia or by any

federal court, that prescribe ethical conduct for attorneys and that

would subject an attorney, whether or not a Department attorney, to

professional discipline, such as a code of professional responsibility.

The phrase does not include:

(1) Any statute, rule, or regulation which does not govern ethical

conduct, such as rules of procedure, evidence, or substantive law,

whether or not such rule is included in a code of professional

responsibility for attorneys;

(2) Any statute, rule, or regulation that purports to govern the

conduct of any class of persons other than attorneys, such as rules

that govern the conduct of all litigants and judges, as well as

attorneys; or

(3) A statute, rule, or regulation requiring licensure or

membership in a particular state bar.

(i) The phrase state of licensure means the District of Columbia or

any State or Territory where a Department attorney is duly licensed and

authorized to practice as an attorney. This term shall be construed in

the same manner as it has been construed pursuant to the provisions of

Pub. L. 96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the

Departments of Commerce, Justice and State, the Judiciary, and Related

Agency Appropriations Act, 1999, Pub. L. 105-277.

(j)(1) The phrase where such attorney engages in that attorney's

duties identifies which rules of ethical conduct a Department attorney

should comply with, and means, with respect to particular conduct:

(i) If there is a case pending, the rules of ethical conduct

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

is pending; or

(ii) If there is no case pending, the rules of ethical conduct that

would be applied by the attorney's state of licensure.

(2) A Department attorney does not ``engage[] in that attorney's

duties'' in any states in which the attorney's conduct is not

substantial and continuous, such as a jurisdiction in which an attorney

takes a deposition (related to a case pending in another court) or

directs a contact to be made by an investigative agent, or responds to

an inquiry by an investigative agent. Nor does the phrase include any

jurisdiction that would not ordinarily apply its rules of ethical

conduct to particular conduct or activity by the attorney.

(k) The phrase to the same extent and in the same manner as other

attorneys means that Department attorneys shall only be subject to laws

and rules of ethical conduct governing attorneys in the same manner as

such rules apply to non-Department attorneys. The phrase does not,

however, purport to eliminate or otherwise alter state or federal laws

and rules and federal court rules that expressly exclude some or all

government attorneys from particular limitations or prohibitions.

Sec. 77.3 Application of 28 U.S.C. 530B.

In all criminal investigations and prosecutions, in all civil

investigations and litigation (affirmative and defensive), and in all

civil law enforcement investigations and proceedings, attorneys for the

government shall conform their conduct and activities to the state

rules and laws, and federal local court rules, governing attorneys in

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

the same extent and in the same manner as other attorneys in that

State, as these terms are defined in Sec. 77.2 of this part.

Sec. 77.4 Guidance.

(a) Rules of the court before which a case is pending. A government

attorney shall, in all cases, comply with the rules of ethical conduct

of the court before which a particular case is pending.

(b) Inconsistent rules where there is a pending case.

(1) If the rule of the attorney's state of licensure would prohibit

an action that is permissible under the rules of the court before which

a case is pending, the attorney should consider:

(i) Whether the attorney's state of licensure would apply the rule

of the court before which the case is pending,

[[Page 19277]]

rather than the rule of the state of licensure;

(ii) Whether the local federal court rule preempts contrary state

rules; and

(iii) Whether application of traditional choice-of-law principles

directs the attorney to comply with a particular rule.

(2) In the process of considering the factors described in

paragraph (b)(1) of this section, the attorney is encouraged to consult

with a supervisor or Professional Responsibility Officer to determine

the best course of conduct.

(c) Choice of rules where there is no pending case.

(1) Where no case is pending, the attorney should generally comply

with the ethical rules of the attorney's state of licensure, unless

application of traditional choice-of-law principles directs the

attorney to comply with the ethical rule of another jurisdiction or

court, such as the ethical rule adopted by the court in which the case

is likely to be brought.

(2) In the process of considering the factors described in

paragraph (c)(1) of this section, the attorney is encouraged to consult

with a supervisor or Professional Responsibility Officer to determine

the best course of conduct.

(d) Rules that impose an irreconcilable conflict. If, after

consideration of traditional choice-of-law principles, the attorney

concludes that multiple rules may apply to particular conduct and that

such rules impose irreconcilable obligations on the attorney, the

attorney should consult with a supervisor or Professional

Responsibility Officer to determine the best course of conduct.

(e) Supervisory attorneys. Each attorney, including supervisory

attorneys, must assess his or her ethical obligations with respect to

particular conduct. Department attorneys shall not direct any attorney

to engage in conduct that violates section 530B. A supervisor or other

Department attorney who, in good faith, gives advice or guidance to

another Department attorney about the other attorney's ethical

obligations should not be deemed to violate these rules.

(f) Investigative Agents. A Department attorney shall not direct an

investigative agent acting under the attorney's supervision to engage

in conduct under circumstances that would violate the attorney's

obligations under section 530B. A Department attorney who in good faith

provides legal advice or guidance upon request to an investigative

agent should not be deemed to violate these rules.

Sec. 77.5 No private remedies.

The principles set forth herein, and internal office procedures

adopted pursuant hereto, are intended solely for the guidance of

attorneys for the government. They are not intended to, do not, and may

not be relied upon to create a right or benefit, substantive or

procedural, enforceable at law by a party to litigation with the United

States, including criminal defendants, targets or subjects of criminal

investigations, witnesses in criminal or civil cases (including civil

law enforcement proceedings), or plaintiffs or defendants in civil

investigations or litigation; or any other person, whether or not a

party to litigation with the United States, or their counsel; and shall

not be a basis for dismissing criminal or civil charges or proceedings

or for excluding relevant evidence in any judicial or administrative

proceeding. Nor are any limitations placed on otherwise lawful

litigative prerogatives of the Department of Justice as a result of

this part.

Dated: April 14, 1999.

Janet Reno,

Attorney General.

[FR Doc. 99-9845 Filed 4-19-99; 8:45 am]

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