Notification to the Criminal Division of Certain Prosecutions of Attorneys

In either of the following two circumstances, the United States Attorney or Departmental Component Head shall notify the Director of the Office of Enforcement Operations, Criminal Division, whenever his/her office intends to file a complaint, information, or indictment against an attorney:

When the charges are based, in whole or in part, on evidence that the attorney served as counsel for an ongoing criminal enterprise or organization; or

When—

(a) the charges are based, in whole or in part, on actions or omissions by the attorney during the representation of a current or former client; and

(b) the attorney's current or former client is, or is likely to be, a witness against the attorney;

and

(c) the client will, or is likely to, testify against the attorney pursuant to a non-prosecution, cooperation, or similar agreement with the government

Except in emergency situations, the United States Attorney or Departmental Component Head shall provide such notice sufficiently in advance of the filing of a complaint, information, or indictment to provide the Director of the Office of Enforcement Operations, Criminal Division, a reasonable time to consult with the prosecuting office/component. In addition, the United States Attorney or Departmental component head should consider providing notice during an investigation involving the circumstances described above in A.1 or A.2, if the existence of such investigation is about to be, or has been, made public. A form by which to provide notification is available to Department attorneys.

The requirements set forth in this section shall not apply to indictments that are subject to pre-indictment review by a Department component under other provisions of the

Justice Manual

, e.g., RICO, tax, etc., cases.

Guidance With Regard to Prosecutors' Participation in Attorney Prosecution

The following guidance is provided for Assistant United States Attorneys (AUSAs) and Department Attorneys regarding certain prosecutions of attorneys:

Pursuant to 5 C.F.R

dictments that are subject to pre-indictment review by a Department component under other provisions of the

Justice Manual

, e.g., RICO, tax, etc., cases.

Guidance With Regard to Prosecutors' Participation in Attorney Prosecution

The following guidance is provided for Assistant United States Attorneys (AUSAs) and Department Attorneys regarding certain prosecutions of attorneys:

Pursuant to 5 C.F.R. § 2635.501, a government employee, including an AUSA or Department Attorney, should "take appropriate steps to avoid an appearance of loss of impartiality in the performance of his[/her] official duties." Unless he/she receives prior authorization from an appropriate agency official, an attorney "should not participate in a particular matter ... if he[/she] determines that a reasonable person with knowledge of the relevant facts would question his impartiality in the matter."

Id.; see also

5 C.F.R. § 2635.502; 28 C.F.R.§ 45.2.

In light of the foregoing requirements—

(a) An AUSA or Department Attorney must consider whether it is appropriate for him/her to participate in a criminal investigation or prosecution of a private attorney in circumstances in which, prior to the initiation of the criminal investigation or prosecution, the AUSA or Department Attorney was involved in a matter in which the private attorney represented a current or former target or subject of the investigation or litigation, regardless of whether that investigation or litigation was civil or criminal in nature and regardless of whether that investigation or litigation is ongoing.

(b) In making this determination, the AUSA or Department Attorney shall weigh, where applicable, the following factors, among others:

h the private attorney represented a current or former target or subject of the investigation or litigation, regardless of whether that investigation or litigation was civil or criminal in nature and regardless of whether that investigation or litigation is ongoing.

(b) In making this determination, the AUSA or Department Attorney shall weigh, where applicable, the following factors, among others:

(i) the level of his/her involvement in the investigation or litigation involving the attorney's current or former client;

(ii) the level of his/her involvement in the ongoing criminal investigation or prosecution of the attorney;

(iii) the amount of time, if any, that has passed between the investigation or litigation involving the attorney's current or former client and ongoing criminal investigation or prosecution of the attorney;

(iv) the level of the attorney's involvement in the representation of the current or former client; and

(v) the potential that there will be a public perception of favoritism or animus toward the attorney.

(c) An AUSA's or Department Attorney's decision regarding his/her participation in such a criminal investigation or prosecution must be reviewed personally by the United States Attorney or Department Component Head, respectively. Regardless of the outcome of that review, the United States Attorney or Department Component Head also shall consider whether it is appropriate to recuse the entire office.

See

J

M 3-1.140

.

In all circumstances, AUSAs and United States Attorneys are encouraged to consult with Legal Counsel for the Executive Office for United States Attorneys, and Department Attorneys and their component heads should consult with appropriate Departmental counsel.

[updated July 2020]