[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19077]
[[Page Unknown]]
[Federal Register: August 4, 1994]
_______________________________________________________________________
Part VI
Department of Justice
_______________________________________________________________________
28 CFR Part 77
Communications With Represented Persons; Final Rule
DEPARTMENT OF JUSTICE
28 CFR Part 77
[AG Order No. 1903-94]
Communications With Represented Persons
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule governs the circumstances under which
attorneys employed by the Department of Justice (``Department'') may
communicate with persons known to be represented by counsel in the
course of law enforcement investigations and proceedings.
The purpose of this rule is to impose a comprehensive, clear, and
uniform set of regulations on the conduct of government attorneys
during criminal and civil investigations and enforcement proceedings.
The rule is intended to ensure that government attorneys adhere to the
highest ethical standards, while eliminating the uncertainty and
confusion arising from the variety of interpretations of state rules,
some of which have been incorporated as local court rules in a number
of federal district courts.
The rule establishes, prospectively, a general prohibition, subject
to limited enumerated exceptions, against contacts with ``represented
parties'' without the consent of counsel. This prohibition derives from
the American Bar Association (``ABA'') Code of Professional
Responsibility and its successor, the ABA Model Rules of Professional
Conduct. The rule, on the other hand, generally permits investigative
contacts with ``represented persons'': that is, individuals or
organizations that are represented by counsel but that have not yet
been named as defendants in a civil or criminal enforcement proceeding
or arrested as part of a criminal proceeding. However, the rule does
not permit contacts with represented persons without the consent of
counsel for the purpose of negotiating plea agreements, settlements, or
other similar legal arrangements.
In addition, the Department intends to issue substantial additions
to the United States Attorneys' Manual (``Manual'') to provide
additional direction to Department attorneys when they deal with
represented individuals and organizations, in order to accommodate more
fully the principles and purposes underlying the state bar rules. Those
provisions will further restrict government attorneys when they contact
targets of criminal or civil law enforcement investigations who are
known to be represented by counsel, and when they communicate with
other represented persons.
EFFECTIVE DATE: September 6, 1994.
FOR FURTHER INFORMATION CONTACT:
F. Mark Terison, Senior Attorney, Legal Counsel, Executive Office for
United States Attorneys, United States Department of Justice, (202)
514-4024. This is not a toll-free number.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule on the subject of communications with represented
persons culminates a lengthy rulemaking process in which a proposed
rule on the same subject was issued three separate times for comment.
See 59 FR 10086 (Mar. 3, 1994); 58 FR 39976 (July 26, 1993); and 57 FR
54737 (Nov. 20, 1992). Comments received after the publication in
November 1992 and in July 1993 of earlier versions of the rule resulted
in major substantive changes being made to the rule. As a result, a new
proposal reflecting these changes was published on March 3, 1994.
During the most recent comment period, the Department received many
thoughtful comments from private attorneys, local bar organizations,
state courts, federal prosecutors, and others. The Department closely
scrutinized all of these comments. After considering those comments,
the Department made several relatively minor amendments to the proposed
rule. Therefore, the final rule remains in substantially the same form
as the proposed rule issued in March 1994.
The final rule reflects the Department's commitment to fostering
ethical behavior consistent with the principles informing DR 7-
104(A)(1) of the ABA Code of Professional Responsibility and Rule 4.2
of the Model Rules of Professional Conduct, while setting forth clear
and uniform national guidelines upon which government attorneys can
rely in carrying out their responsibilities to enforce federal laws.
(The term ``attorney for the government'' is defined in paragraph
77.2(a), and where this phrase, or a variant of it, such as
``government attorney,'' is used elsewhere in this commentary, it has
the meaning set forth in paragraph 77.2(a), unless the context clearly
indicates otherwise, and it is typically used interchangeably with
``Department attorney.''). In essence, this regulation permits federal
prosecutors and agents to continue to conduct legitimate criminal and
civil investigations against all individuals, whether or not those
persons are represented by counsel. It allows government attorneys to
continue to make or direct undercover or overt contacts with
individuals and organizations represented by counsel for the purpose of
developing factual information up until the point at which they are
arrested or charged with a crime or named as defendants in a civil law
enforcement action. However, the regulation generally does not permit
federal prosecutors to attempt to negotiate plea agreements,
settlements, or similar arrangements with individuals represented by
counsel without the consent of their attorneys. This regulation also
precludes, with certain narrow exceptions, any contacts with
represented parties after an arrest, indictment, or the filing of a
complaint on the subject matter of the representation.
Additionally, the Department plans to add provisions to the United
States Attorneys' Manual that will set forth further guidance. The
Department intends to prohibit overt approaches by federal attorneys to
represented targets of criminal or civil enforcement proceedings
without the consent of counsel, unless certain enumerated exceptions
are met. The planned provisions also will generally require that
government attorneys receive approval from their supervisors before
communicating with any represented party or represented target.
Since early in this century, the rules of professional conduct that
govern attorneys have required that lawyers for one party in a dispute
communicate only through an adverse party's lawyer, rather than
directly. DR 7-104(A)(1) of the ABA Model Code of Professional
Responsibility provides:
A. During the course of his representation of a client a lawyer
shall not:
1. Communicate or cause another to communicate on the subject of
the representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do so.
Rule 4.2 of the ABA Model Rules states:
In representing a client, a lawyer shall not communicate about
the subject of the representation with a party the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized by law to do
so.
Disciplinary authorities in all 50 states and in the District of
Columbia have adopted one of these rules, or a similar prohibition.
Underlying these rules is the recognition that when two parties in a
legal proceeding are represented, it is generally unfair for an
attorney to circumvent opposing counsel and employ superior skills and
legal training to take advantage of the opposing party.
At the same time, the courts have long recognized that government
law enforcement agents must be allowed broad powers, within
constitutional limits, to investigate crime and civil violations of
police and regulatory laws. These powers properly include the authority
to conduct undercover operations and to interview witnesses, potential
suspects, targets, and even those defendants who waive their right to
remain silent. Although the Fifth and Sixth Amendments significantly
restrict contacts with defendants after their initial appearance before
a judge or after indictment, these constraints generally do not apply
before a person has been taken into custody or charged in an adversary
proceeding. Sound policies support this substantial power of police to
investigate. The general public, victims of crime, and even potential
suspects have a strong interest in vigorous inquiry by law enforcement
officers before arrest or the filing of charges.
As long as investigations were treated as within the province of
the police alone, the traditional rule forbidding counsel from directly
contacting represented persons did not come into conflict with
legitimate law enforcement activities. In recent years, however, the
Department of Justice has encouraged federal prosecutors to play a
larger role in preindictment, prearrest investigations. Some of this
increased involvement stems from the wider use of law enforcement
techniques, such as electronic surveillance, which require the
preparation of legal filings. Also, complex white collar and organized
crime investigations necessitate more intensive engagement of lawyers,
who present such cases to grand juries. Most important, greater
participation of lawyers at the preindictment stage of law enforcement
has been regarded as helpful in assuring that police investigations
comply with legal and ethical standards.
This extension of the traditional prosecutor's responsibility has
been a salutary development. One by-product, however, has been
uncertainty about whether the traditional professional limitation on
attorney contacts with represented parties should be viewed as a
restriction upon prosecutors engaged in investigations and, by
extension, the agents with whom they work. The overwhelming
preponderance of federal appellate courts have held that the
restriction on contacts with represented persons does not apply at the
preindictment investigation stage. See, e.g., United States v. Ryans,
903 F.2d 731, 739 (10th Cir.), cert. denied, 498 U.S. 855 (1990);
United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.), cert.
denied, 464 U.S. 852 (1983); United States v. Kenny, 645 F.2d 1323,
1339 (9th Cir.), cert. denied, 452 U.S. 920 (1981); United States v.
Weiss, 599 F.2d 730, 739 (5th Cir. 1979); and United States v.
Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied, 415
U.S. 989 (1974). Only the Second Circuit has suggested otherwise. See
United States v. Hammad, 846 F.2d 854, amended, 858 F.2d 834 (2d Cir.
1988), cert. denied, 498 U.S. 871 (1990). However, that suggestion was
muted significantly in a revised opinion by the Second Circuit that
``urge[d] restraint in applying the rule to criminal investigations,''
858 F.2d at 838, and ultimately concluded that ``a prosecutor is
`authorized by law' to employ legitimate investigative techniques in
conducting or supervising criminal investigations * * * '' Id. at 839.
By contrast, state courts and state bar organizations have varied
widely in their interpretation of the scope of the prohibition on
contacts embodied in DR 7-104, Model Rule 4.2, and their analogs. Some
examples of the varying interpretations are detailed below.
Uncertainty about the scope and applicability of DR 7-104, Model
Rule 4.2, and their state counterparts has directly affected the
investigative activities of agents, including Federal Bureau of
Investigation and Drug Enforcement Administration personnel, who work
with prosecutors. The expansive application of these rules in some
jurisdictions may have the effect of blocking preindictment interviews
or undercover operations that most courts have held permissible under
federal constitutional and statutory law. Additionally, the heightened
threat of disciplinary action that accompanies the expansive
application of these rules has created a chilling effect on prosecutors
responsible for directing these legitimate investigative activities.
These problems are compounded when federal attorneys assigned to
the same case are members of different state bars. Under federal law, a
Department attorney must be a member in good standing of a state bar,
but he or she need not belong to the bar in each state in which he or
she is practicing for the government. Therefore, prosecution teams
often comprise attorneys admitted to different bars. The application of
different state disciplinary rules to these individuals creates
uncertainty, confusion, and the possibility of unfairness. Indeed, one
member of a two-member federal prosecution team could receive a
commendation for effective law enforcement while the other member,
licensed in a different state, might be subject to state discipline for
the same conduct.
In light of these circumstances, the Department has concluded that
a compelling need exists that warrants a uniform federal rule to
reconcile the traditional rule against contacts with a represented
party with the obligation of the Department of Justice to enforce the
law vigorously. Indeed, absent a uniform federal rule, prosecutors have
been moved on occasion to reduce their participation in the
investigative phase of law enforcement so as to leave federal agents
unfettered by state disciplinary rules that were never intended to
govern police behavior. Such a retreat from the field by prosecutors
serves neither efficiency nor the interest in elevating legal
compliance and ethical standards in all phases of law enforcement.
Furthermore, the disciplinary rules themselves invite promulgation
of a regulation such as this one. Nearly all the states have adopted
rules that include an ``authorized by law'' exception. This final rule,
a duly promulgated regulation, is intended to constitute ``law'' within
the meaning of those exceptions.
Finally, the Department has long maintained, and continues to
maintain, that it has the authority to exempt its attorneys from the
application of DR 7-104 and Model Rule 4.2 and their state
counterparts. Furthermore, the Department maintains that whether, and
to what extent, such prohibitions should apply to Department attorneys
is a policy question. See Ethical Restraints of the ABA Code of
Professional Responsibility on Federal Criminal Investigations, 4B Op.
O.L.C. 576, 577 (1980). In light of the fact that all 50 states and the
District of Columbia have adopted some form of a prohibition on
contacts with represented parties, and in view of the long history of
those rules, the Department believes that its attorneys should adhere
to the principles underlying those rules to the maximum extent
possible, consistent with the Department's law enforcement
responsibilities. Therefore, even though the Department has the
authority to exempt its attorneys from the reach of these rules, the
Department has decided not to implement a wholesale exemption.
Rather, this regulation attempts to reconcile the purposes
underlying DR 7-104 and Model Rule 4.2 with effective law enforcement.
Recognizing the importance of the attorney-client relationship and the
desirability that an individual who is represented by counsel be fully
advised by counsel before negotiating legal agreements, this regulation
provides that federal attorneys may not negotiate plea bargains,
settlement agreements, immunity agreements, or similar arrangements
without the consent of the individual's attorney. There is a heightened
risk in this context of the prosecutor's superior legal training and
specialized knowledge being used to the detriment of the untutored
layperson. Thus, the regulations comport with the principal purpose of
DR 7-104 and Model Rule 4.2 by insisting that the individual's attorney
participate in these types of negotiations. Further, even when contacts
are allowed, the regulation is designed to minimize any intrusion into
the attorney-client relationship. At the same time, this regulation
does permit direct contacts at the preindictment, prearrest
investigative stage with any individual, whether or not he or she is
represented by counsel. The regulation is drafted to conform to the
approach of most federal appellate courts that have considered the
matter. See, e.g., United States v. Ryans, 903 F.2d 731 (10th Cir.)
(discussing cases), cert. denied, 498 U.S. 855 (1990), and other cases
cited previously in connection with the discussion of preindictment
contacts. The Department believes that public policy and effective law
enforcement would not be served if the simple act of retaining an
attorney could serve to exempt a person from lawful, court-approved
investigative techniques. The Department believes that it is
inappropriate to alter investigative techniques based upon an
individual's financial ability to retain counsel before the point at
which an indigent would be afforded court-appointed counsel.
This regulation and the planned changes to the United States
Attorneys' Manual also will give effect to other important aspects of
the bar rules against contacts with represented parties. For example,
the regulation precludes federal attorneys from disparaging an
individual's counsel or from attempting to gain access to attorney-
client confidences or lawful defense strategy. The guidelines that the
Department intends to add to the Manual also will make clear that once
an individual is in a likely adversarial situation with the government
and has retained an attorney to represent himself or herself with
respect to the particular subject matter under investigation, the
government attorney must take greater care before making any ex parte
contacts. While the regulation authorizes most communications before
arrest, the planned Manual changes provide that, as a matter of
internal policy guidance, federal prosecutors generally should not make
overt contacts with represented targets of investigations. However, the
planned Manual provisions permit overt contacts with a represented
target when initiated by the target; when necessary to prevent death or
physical injury; when the relevant investigation involves ongoing or
additional crimes, or different crimes from that to which the
representation relates; or when a United States Attorney or an
Assistant Attorney General expressly concludes, under all of the
circumstances, that the contact is needed for effective law
enforcement.
Finally, the regulation and planned Manual provisions also address
when a government attorney may communicate with an employee, officer,
or director of a represented corporation or organization without the
consent of counsel. The regulation generally prohibits a government
attorney from communicating with a current, high-level employee of a
represented organization who participates as a ``decision maker in the
determination of the organization's legal position in the proceeding or
investigation of the subject matter'' once the organization has been
named as a defendant in a criminal or civil law enforcement proceeding.
Further, the contemplated Manual provisions would generally prohibit
contacts without the consent of counsel with controlling individuals of
organizations that have not yet been named as defendants but are
targets of federal criminal or civil law enforcement investigations.
This final rule recognizes that state courts and disciplinary
bodies generally play the primary role in regulating the conduct of all
attorneys, including those who work for the federal government. The
Department also recognizes that with respect to most matters,
Department attorneys are subject to the bar rules and disciplinary
proceedings of the states in which they are licensed. However, the
Department believes it must be the final arbiter of the scope of
policing with respect to ex parte contacts involving federal
prosecutors, subject to the Constitution and the laws of the United
States. As noted above, because of the expanded participation of
federal prosecutors in preindictment investigations, and the trend of
state courts increasingly to apply DR 7-104 and Model Rule 4.2
expansively against federal prosecutors, these rules have affected and
circumscribed the power of federal officials to carry out their legally
mandated responsibilities. This regulation provides that the Attorney
General shall have exclusive authority to determine these rules.
Further, the Department's rules are intended fully to preempt and
supersede the application of state and local court rules relating to
contacts by Department of Justice attorneys when carrying out their
federal law enforcement functions. Only if the Attorney General finds
that a Department attorney has willfully violated these new rules would
that attorney continue to be subject to the full measure of state
disciplinary jurisdiction.
The Department is confident that, taken together, this regulation,
the planned Manual amendments, and this supplemental information will
promote the public interest in effective law enforcement in a manner
that also conforms to the highest standards of legal ethics.
The procedures established by this rule apply to conduct occurring
after the rule's publication.
II. Rulemaking History
On November 22, 1992, the Department of Justice published in the
Federal Register a proposed rule regarding communications with
represented persons. 57 FR 54737. By December 21, 1992, the close of
the comment period, the Department had received comments from 20
sources.
The Department was concerned that not all interested parties had
received sufficient opportunity to respond during the initial comment
period. Noting ``the complex and important nature of the rule to the
criminal and civil justice systems and the licenses and livelihoods of
its attorneys,'' on July 26, 1993, the Department reissued the proposed
rule for an additional 30-day comment period. 58 FR 39976. The
Department received 219 comments following this second publication of
the proposed rule.
On March 3, 1994, the Department issued a new proposed rule
governing the same subject matter for an additional 30-day comment
period. 59 FR 10086. In response to concerns raised by bar
organizations, bar counsel, state and federal judges, and others, that
proposal reflected substantial changes from the earlier proposals. This
publication of the proposed rule was accompanied by the issuance of
companion provisions that the Department intends to include in the
United States Attorneys' Manual, which set forth certain more
restrictive policies with regard to overt investigatory communications.
The discussion that follows summarizes the issues that were raised in
response to the Department's latest publication of the proposed rule.
III. Summary of Comments Received
During the most recent comment period, which closed on April 4,
1994, timely comments were received from 31 sources, including nine
individuals, nine organizations, four state court judges, one federal
court judge, five U.S. Attorney's Offices, two Department of Justice
components, and one other federal agency. Of the 31 comments received,
nine comments supported promulgation of the proposed rule, 20 comments
opposed the rule, and two other comments failed to take any definitive
position on the proposed rule as a whole. As with previous versions of
this rule, many writing in opposition to the Department's proposal
argued that it unfairly permits the Department to hold its attorneys to
ethical rules different from those that apply to all other attorneys.
Other opponents of the proposed rule--most notably the ABA and a
special committee of the Conference of State Supreme Court Chief
Justices--challenged the proposed rule on constitutional and statutory
grounds, arguing that the Department lacks authority to preempt state
ethics rules or to supersede local federal district court rules. Those
writing in support of the proposal generally praised it for bringing
certainty and clear guidance to an area that previously has been
unclear and disruptive of law enforcement functions.
The Department has considered carefully each comment and
appreciates the thoughtfulness reflected in them. The Department's
responses to those comments are discussed below, either in the
``General Comments'' section or in the context of the particular
section or paragraph to which they pertain as part of the ``Section-by-
Section'' analysis. All revisions adopted in the final rule are
indicated.
IV. General Comments
Comments were received on the following three general issues: (1)
the need for the rule; (2) the constitutional and statutory authority
for the rule; and (3) the sufficiency of the rule's internal
enforcement mechanisms. These general comments essentially repeated
comments received in response to previous versions of the proposed
rule. After careful reconsideration of these recurring issues, the
Department's position on many of these subjects--in particular, the
constitutional and statutory basis for this rule and the need for and
advisability of such a rule--remains the same. Therefore, the
Department's response in this section builds upon responses published
in previous commentaries.
A. The Need for the Rule. One state court judge, one federal judge,
five individuals, and six organizations criticized the proposed rule as
holding government attorneys to lower ethical standards than those that
apply to all other attorneys. This comment was formulated in a variety
of ways, with the following as illustrative examples: ``[t]he rules
apply to everyone, and it should especially apply to attorneys in
Government service;'' ``I do not know why it is that the department
somehow thinks [it] can exempt [its] attorneys from the rules of
conduct that all of the lawyers must abide by;'' ``[Department] lawyers
should be treated as subject to the same rule of law that applies to
the conduct of all other lawyers;'' and ``[f]airness simply will not
tolerate exalting the role of one adversary's advocate above the
other.''
In response to these comments, the Department finds it important,
first, to make clear that this rule is not designed to diminish the
ethical responsibilities of government attorneys; it is intended to
clarify those responsibilities. The current situation, in which state
contact rules purport to govern the substantive conduct of federal law
enforcement attorneys, has proven unsatisfactory because the standards
of ethical conduct are uncertain and subject to unpredictable and
varying interpretations. This uncertainty as to what constitutes
appropriate conduct by Department attorneys has interfered with the
responsible exercise of the law enforcement duties of Department
attorneys. The basic purpose of this regulation is to provide a uniform
rule of ethics regarding contacts with represented persons that can be
consistently and predictably applied. By doing so, the regulation will
allow all Department attorneys involved in a federal law enforcement
proceeding to understand and abide by applicable standards. There is
simply no basis for believing that there will be a reduction in
compliance with ethical standards by federal prosecutors.
Many commenters opposing the proposed rule dismissed as unnecessary
the creation of a uniform set of rules for Department attorneys. Some
commented that the ex parte contact rules currently in place do not
vary significantly, given that virtually every jurisdiction has adopted
some version of the ABA's anti-contact rule. Other commenters argued
that, in any event, state and local ethics rules do not interfere
substantially with federal law enforcement activities because only in
rare instances have federal prosecutors actually been investigated by a
state disciplinary authority.
Although an anti-contact rule is in effect in nearly all
jurisdictions, it is not interpreted uniformly. Among other things,
jurisdictions differ as to whether the anti-contact rule applies in the
investigatory stage, compare United States v. Ryans, 903 F.2d 731, 739
(10th Cir.), cert. denied, 498 U.S. 855 (1990) with United States v.
Hammad, 858 F.2d 834, 839 (2d Cir. 1988), cert. denied, 498 U.S. 871
(1990); whether the rule applies to prosecutors, compare Matter of Doe,
801 F. Supp. 478 (D.N.M. 1992) with District of Columbia Rules of
Professional Conduct Rule 4.2 cmt. 8; whether the rule applies to
former employees of a represented corporate party, compare Public Serv.
Elec. & Gas v. Associated Elec. & Gas, 745 F. Supp. 1037, 1042 (D.N.J.
1990) with Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621,
628 (S.D.N.Y. 1990); and whether the rule applies to all corporate
employees who could make admissions on behalf of the corporation or
only to employees who belong to a so-called ``control group.'' Compare
Model Rules of Professional Conduct Rule 4.2 cmt. (1983) with Wright
by. Wright v. Group Health Hosp., 691 P.2d 564 (Wash. 1984). The lack
of uniformity in interpreting existing anti-contact rules has created
concern among government attorneys of inadvertently running afoul of
state court or federal district court rules. The threat of disciplinary
proceedings (and the possible resulting loss of license and livelihood)
against a government attorney engaged in legitimate law enforcement
activities has had a chilling effect on the responsible exercise of law
enforcement duties. Many federal prosecutors who submitted comments in
connection with the earlier versions of this rule stated that they feel
compelled to refrain from authorizing or participating in legitimate
and ethical law enforcement activities because of the current
uncertainty as to the acceptability of various ex parte contacts.
To add to the confusion inherent in the current situation, the
Department's attorney staff consists of members of many different state
bars who commonly appear in multiple jurisdictions. Under the Model
Rule's approach, an attorney practicing in a jurisdiction in which he
or she is not a member of the bar remains subject to the jurisdiction
of the bar of which he or she is a member, but if the rules in the two
places differ, principles of conflict of laws may apply. Model Rules of
Professional Conduct Rule 8.5 and cmt. (1983). As a result, when state
anti-contact rules purport to govern the conduct of federal attorneys,
the question of which rule governs the conduct of Department lawyers
may often be complicated. Indeed, as was noted in the ``Background''
section of this commentary, government attorneys may be subject to
substantially different rules when they are working alongside one
another on the same case. One commenter proposed that instead of
issuing a uniform contacts rule for Department attorneys, the
Department should encourage its attorneys to practice only in a given
jurisdiction and to obtain bar membership in that jurisdiction.
However, Congress has made clear that Department attorneys should be
able to practice in different jurisdictions so long as they are a
member of some state bar, and there is a significant federal interest
in preserving the Department's ability to assign its attorneys wherever
there are law enforcement needs to be met. This uniform rule regarding
contacts with represented persons achieves consistency and high ethical
standards without hampering federal law enforcement activity.
In formulating this uniform rule, the Department has not
disregarded existing state ethics rules, as a number of comments imply.
As set forth in section 77.12, this regulation is specifically intended
to fit within the structure of DR 7-104 and Model Rule 4.2, as well as
analogous state and local district court disciplinary rules. Both DR 7-
104 and Model Rule 4.2 provide that communications that are
``authorized by law'' are exempted from the general prohibition of the
rule and, according to the Reporter for the commission that developed
the Model Rules, Yale Law School ethics professor Geoffrey Hazard, this
exception was drafted with the ``government lawyer'' problem in mind.
See Letter of January 19, 1994 from Professor Geoffrey C. Hazard, Jr.
to Chief Justice E. Norman Veasey, at 2 (``I can state from first-hand
knowledge that this [authorized by law] qualification was drafted
mindful of the government lawyer problem, among others. In my opinion
it is within the authority of the federal government, particularly the
Justice Department, to promulgate such regulations.'') (This letter and
all comments are on file with the Office of the Associate Attorney
General, United States Department of Justice). As explained later in
this commentary, the Department's position is that communications with
represented persons undertaken pursuant to this duly promulgated
regulation clearly constitute communications ``authorized by law.''
Therefore, in nearly all jurisdictions, communications approved under
the Department's rules will be appropriate under existing ethical rules
as well.
Furthermore, the content of this rule derives largely from DR 7-104
and Model Rule 4.2 and is wholly consistent with the principles
underlying these rules. This regulation grants greater latitude for
lawyer communications with a represented ``person'' during the
investigative phase of law enforcement than with a represented
``party'' after adversarial proceedings have commenced. This
distinction appears in the texts of DR 7-104 and Model Rule 4.2, which
prohibit only communications with ``a party'' the lawyer knows to be
represented by another lawyer in the matter. This distinction also
accords with the great weight of federal court interpretations of the
state ethics rules. See Ryans, 903 F.2d at 739 (``We are not convinced
that the language of [the anti-contact rule] calls for its application
to the investigative phase of law enforcement'' because ``the rule
appears to contemplate an adversarial relationship between litigants,
whether in a criminal or a civil setting''); United States v. Sutton,
801 F.2d 1346, 1365-66 (D.C. Cir. 1986) (anti-contact rule ``was never
meant to apply to [pre-indictment, non-custodial] situations such as
this one''); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983)
(agent's ``noncustodial interview of [suspect] prior to the initiation
of judicial proceedings against the appellant did not constitute an
ethical breach''); United States v. Fitterer, 710 F.2d 1328, 1333 (8th
Cir.) (anti-contact rule does not prohibit prosecutors from using
undercover informants to communicate with represented persons prior to
indictment), cert. denied, 464 U.S. 852 (1983); United States v. Jamil,
707 F.2d 638 (2d Cir. 1983) (prosecutor's use of undercover informant
in pre-indictment, non-custodial setting to communicate with
represented person does not violate DR 7-104); United States v.
Vasquez, 675 F.2d 16, 17 (2d Cir. 1982) (anti-contact rule was not
intended to prohibit use of undercover informants prior to indictment);
United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.) (``the
government's use of such investigative techniques at this stage of a
criminal matter does not implicate the sorts of ethical problems
addressed by the Code''), cert. denied, 452 U.S. 920 (1981); United
States v. Weiss, 599 F.2d 730, 739-40 (5th Cir. 1979) (prosecutor's
investigatory communications upheld against challenge under anti-
contact rule); United States v. Lemonakis, 485 F.2d 941, 953-56 (D.C.
Cir. 1973) (anti-contact rule does not apply prior to indictment, and
use of undercover informant did not violate rule in any event), cert.
denied, 415 U.S. 989 (1974); In re U.S. Dept. of Justice Antitrust
Investigation, 1992-2 Trade Cases (CCH) 69,933, at 68,469 (D. Minn.
1992) (Minnesota's Rule 4.2 held inapplicable because ``[t]he word
`parties' in Rule 4.2 indicates the presence of a lawsuit'' and ``[t]he
present controversy relates to an investigation, not a lawsuit'');
United States v. Infelise, 773 F. Supp. 93, 95 n.3 (N.D. Ill. 1991) (DR
7-104(A)(1) ``speaks in terms of communications with a `party',
suggesting that the rule is to be applied only when adversarial
proceedings have been initiated''); United States v. Western Electric
Co., 1990-2 Trade Cases (CCH) 69,148, at 64,314 & n.6 (D.D.C. 1990);
United States v. Buda, 718 F. Supp. 1094, 1096 (W.D.N.Y. 1989); United
States v. Chestman, 704 F. Supp. 451, 454 (S.D.N.Y. 1989), rev'd on
other grounds, 903 F.2d 75 (2d Cir. 1990), aff'd in part, 947 F.2d 551
(2d Cir. 1991) (en banc); United States v. Galanis, 685 F. Supp. 901,
903-04 (S.D.N.Y. 1988); United States v. Guerrerio, 675 F. Supp. 1430,
1438 (S.D.N.Y. 1987). But see United States v. Hammad, 858 F.2d 834,
839 (2d Cir. 1988) (pre-indictment communications may be improper if
accompanied by ``misconduct'' on the part of the government), cert.
denied, 498 U.S. 871 (1990); United States v. Pinto, 850 F.2d 927, 935
(2d Cir.), cert. denied, 488 U.S. 867 (1988); United States v. Sam
Goody, Inc., 518 F. Supp. 1223, 1224-25 n.3 (E.D.N.Y. 1981), appeal
dismissed, 675 F.2d 17 (2d Cir. 1982); see also Comment to ABA Model
Rule 4.2 (notwithstanding use of the term ``party,'' the rule does not
require that a person be ``a party to a formal legal proceeding'').
The courts have readily recognized that Department attorneys
engaged in criminal and civil law enforcement matters perform
distinctly different functions from attorneys engaged in the private
practice of law. The courts have further recognized that the rules
governing communications with represented persons should take account
of these differences. To disregard these differences would therefore
impose substantial and deleterious restrictions on the legitimate law
enforcement duties of Department attorneys that do not presently exist.
For much the same reasons, the Department believes that there is a
basis for distinguishing for purposes of this regulation between
Department attorneys engaged in law enforcement activities (who are
covered by this regulation) and Department attorneys engaged in civil
suits in which the United States is not acting under its police or
regulatory powers (who are not covered). One commenter proposed
extending these rules to cover also the latter activities of Department
attorneys; however, because government attorneys engaged in other,
ordinary civil litigation are not engaged in distinctly different
functions from private attorneys involved in civil cases, they are not
brought under this regulation.
Two organizations further criticized the Department for holding
government attorneys to ethical standards no higher than what the
Constitution provides. The Department agrees that the constitutional
baseline does not provide the proper measure of government attorneys'
ethical obligations. But this regulation does not purport to equate the
two standards. On the contrary, the Department's final rule imposes a
range of restrictions that go beyond those that are constitutionally
compelled. For example, the regulation prohibits government attorneys
generally from engaging in negotiations of certain specified legal
agreements with any represented individual without the consent of that
individual's counsel, even if that individual is not in custody and not
formally charged. Such communications are not constitutionally
proscribed. See Brewer v. Williams, 430 U.S. 387, 398 (1979); Miranda
v. Arizona, 384 U.S. 436 (1966). Additionally, the Department plans to
issue United States Attorneys' Manual provisions that will place
significant limits on the ability of government attorneys to engage in
noncustodial communications with a represented ``target'' of a federal
criminal or civil law enforcement investigation, even though narrowing
an investigation to focus on a particular suspect does not trigger the
suspect's right to counsel. See Hoffa v. United States, 385 U.S. 293
(1966). Therefore, in constructing these standards to guide the ethical
conduct of its attorneys, the Department has imposed ethical
restrictions on Department attorneys that extend significantly beyond
what the Constitution requires.
B. The Constitutional and Statutory Authority for the Rule. 1. The
Department's Authority To Promulgate the Rule. A number of commenters
argued that the Attorney General lacks delegated authority to
promulgate this regulation. Comments stressed that ``[n]o act of
Congress purports to authorize the Department to adopt regulations to
override state ethics rules governing lawyers,'' and that the proposed
regulation in fact is ``contrary to . . . the explicit mandate of
Congress'' that every Department attorney must get a license from a
State and maintain that license.
Rules governing the conduct of Department attorneys, or any other
officials of the Executive Branch, may be promulgated only pursuant to
constitutional or statutory authority. Congress's delegation of
authority need not be specific or explicit. Chrysler Corp. v. Brown,
441 U.S. 281, 307-08 (1979). The Department believes that it possesses
appropriate statutory authority to promulgate this regulation pursuant
to two distinct sources: 5 U.S.C. 301 (``commonly referred to as the
`housekeeping statute,''' Chrysler Corp., 441 U.S. at 309 (citation
omitted)), and title 28 of the United States Code, which in a variety
of provisions authorizes the Attorney General and the Department to
enforce federal law and to regulate the conduct of Department
attorneys.
Section 301 of title 5, United States Code, authorizes the Attorney
General to ``prescribe regulations for the government of [her]
department,'' ``the conduct of its employees,'' and ``the distribution
and performance of its business.'' 5 U.S.C. 301. The Supreme Court has
held that this provision authorizes the Attorney General to issue
regulations with extra-departmental effect. See, e.g., Georgia v.
United States, 411 U.S. 526, 536 (1973) (holding that section 301
provided the Attorney General with ``ample legislative authority'' to
issue regulations that established procedural and substantive standards
binding on state and local governments); United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951) (federal government attorney could not be
held in contempt for following an Attorney General regulation
promulgated pursuant to a predecessor to section 301).
Title 28 of the United States Code grants the Attorney General and
the Department a variety of law enforcement powers including the power
(through intermediary officials) to conduct grand jury proceedings or
any other kind of civil or criminal legal proceeding; to conduct
litigation, and to ``secur[e] evidence'' therefor; to detect and
prosecute crimes; and to prosecute ``civil actions, suits, and
proceedings in which the United States is concerned.'' 28 U.S.C.
515(a), 516, 533, 547; see 28 U.S.C. 509, 510. The Attorney General is
also authorized to ``supervise all litigation'' to which the United
States is a party and to direct United States Attorneys and other
subordinate attorneys in the ``discharge of their respective duties.''
28 U.S.C. 519. These provisions grant the Attorney General extremely
broad authority to supervise the enforcement of federal law.
In order for a Department regulation to have the force and effect
of law, it must rest on a reasonable construction of the statutes
delegating the authority to promulgate it and must not in substance
contradict any act of Congress. See, e.g., NLRB v. United Food and
Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987); Capital
Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-700 (1989). These rules
represent the reasoned judgment of the Attorney General and of the
Department about the lawful authority of federal lawyers effectively to
investigate and prosecute crimes.
One individual and a number of organizations, including the
Conference of Chief Justices, posited that the Department is acting
outside the scope of its congressionally delegated authority because
this regulation assertedly contravenes the Department of Justice
Appropriation Authorization Act of 1979, which requires all Department
attorneys to be ``duly licensed and authorized to practice as an
attorney under the laws of a State, territory, or the District of
Columbia.'' Pub. Law No. 96-132, Sec. 3(a), 93 Stat. 1040, 1044 (Nov.
30, 1979), as carried forward by Pub. Law No. 103-121, 107 Stat. 1153,
1163 (Oct. 27, 1993) (reenacting provisions of Pub. Law No. 96-132).
These commenters suggested that when Congress required Department
attorneys to be licensed by a state bar, Congress implied that
Department attorneys should be subject to all the rules and regulations
of state authorities, regardless of their impact on officials carrying
out federal law enforcement. Therefore, this regulation, by shielding
Department attorneys from state disciplinary proceedings for violations
of state rules interfering with effective federal law enforcement, is
alleged to violate Congress's clear intent in enacting the Department's
appropriation statute.
The Department believes that these comments mistake the purpose and
effect of the congressional requirement that federal attorneys have
state licenses. That requirement, which is satisfied by admission to
the state's bar and maintenance of bar membership, simply serves to
ensure that the professional qualifications of all Department lawyers
have in fact been examined. No comment received by the Department
demonstrates that Congress intended the requirement to have the further
effect of interfering with the Attorney General's ability to ensure
effective federal law enforcement or of compelling federal attorneys to
comply with state bar ethical standards that contradict federal rules.
2. The Department's Power to Preempt State Ethics Rules. One
individual, one state court judge, and five organizations, including
the Special Committee of the Conference of Chief Justices, commented
that the Department does not have the constitutional power to preempt
state regulation of its attorneys.
It should first be noted that in most instances the force and
effect of these rules should not depend on whether they preempt state
ethics rules under the Supremacy Clause. As already noted,
communications within the scope of the regulation are intended to
constitute communications that are ``authorized by law'' within the
meaning of DR 7-104, Model Rule 4.2, and analogous disciplinary rules.
Therefore, if the relevant state rule contains an authorized-by-law
exception, this regulation should be seen as constituting such
authorization, thereby bringing any attorney communication permissible
under these rules in conformity with that state law and eliminating the
Supremacy Clause issue.
The Committee of Chief Justices commented that it is the exclusive
province of the state supreme courts to construe state disciplinary
rules and to determine whether this regulation falls within the
``authorized by law'' exception to these rules. The Department has
simply expressed its intention to fit communications made pursuant to
these rules within the ``authorized by law'' exception to state and
local federal court rules, and its belief that this regulation indeed
constitutes legal authorization for such communications. The Department
notes that it would seem to require a very strained reading to conclude
that a regulation duly promulgated after notice and comment and within
the scope of its delegated authority does not also constitute ``law.''
Cf. Chrysler Corp., 441 U.S. at 295-96 (1979) (``It has been
established in a variety of contexts that properly promulgated
substantive agency regulations have the `force and effect of law.'. . .
It would therefore take a clear showing of contrary legislative intent
before the phrase `authorized by law' in [18 U.S.C.] Sec. 1905 could be
held to have a narrower ambit than the traditional understanding.''
(citation omitted)).
However, the Department recognizes that situations may arise in
which the power of this regulation to displace state rules will depend
on its preemptive force under the Supremacy Clause. Such situations may
arise in several forms: where the applicable ethics rule has no
``authorized by law'' exception; where this regulation is deemed not to
constitute ``law'' for purposes of such exception; or where a
communication is held to violate the applicable ethics rule and not be
``authorized'' by this regulation. Therefore, an important feature of
this regulation is its express intention to preempt and supersede the
operation of state and local federal court rules as they relate to
contacts by Department attorneys, regardless of whether such rules are
inconsistent or consistent with this regulation, absent a finding of a
willful violation of these rules by the Attorney General.
The preemption of state regulation of contacts with represented
persons, except when the Attorney General has found a willful violation
of the federal regulation, was an integral feature of this rule as
proposed earlier. The proposed rule reflected the Department's belief
that preemption of state and local rules, which have been unevenly
applied, is necessary to ensure that government attorneys' conduct
respecting ex parte contacts is subject to uniform and predictable
standards. The Department has made minor revisions to section 77.12 to
clarify that the Department's intent is to displace even purportedly
consistent state regulation in this area (or, as it is commonly
phrased, to ``occupy the field'' of reviewing ex parte contacts by
Department attorneys). The rules and this commentary now state in more
express terms the Department's intention to preclude any state
regulation of government attorneys respecting the subject matter of
these rules, unless the Attorney General first finds a willful
violation of these rules.
Several comments suggested that the Attorney General lacks the
authority to preempt state disciplinary rules, absent an explicit
Congressional authorization to do so. These comments misconceive the
power of a federal agency or department to preempt state regulation.
Congress may, of course, expressly preempt all state regulation in a
particular field, see Rice v. Sante Fe Elevator Corp., 331 U.S. 218,
247, 255 (1947); accord Jones v. Rath Packing Co., 430 U.S. 519, 536-37
(1977), and, in proper circumstances, a federal agency similarly ``may
determine that its authority is exclusive and preempts any state
efforts to regulate in the forbidden area.'' City of New York v. FCC,
486 U.S. 57, 64 (1988). See generally Fidelity Federal Sav. & Loan
Ass'n v. De La Cuesta, 458 U.S. 141, 153-54 (1982) (``[f]ederal
regulations have no less pre-emptive effect than federal statutes''
under the Supremacy Clause); Hillsborough County, Fla. v. Automated
Med. Labs, 471 U.S. 707, 713 (1985) (``We have held repeatedly that
state laws can be pre-empted by federal regulations as well as by
federal statutes.''). A federal agency may preempt state regulation
whenever the agency, in doing so, is acting within the proper scope of
its congressionally delegated authority. Louisiana Public Serv. Comm'n
v. FCC, 476 U.S. 355, 368-69 (1986). Accord City of New York, 486 U.S.
at 64 (``if the agency's choice to pre-empt `represents a reasonable
accommodation of conflicting policies that were committed to the
agency's care by the statute, we should not disturb it unless it
appears from the statute or its legislative history that the
accommodation is not one that Congress would have sanctioned'''
(citation omitted)). Thus, contrary to the commenters' suggestion,
``[a] preemptive regulation's force does not depend on express
congressional authorization to displace state
law . . . .'' Fidelity Federal Sav. & Loan Ass'n, 458 U.S. at 154.
In promulgating this regulation, the Department is acting within
the scope of its discretionary authority. The ample consideration given
to this regulation and its earlier versions reflects the Department's
effort reasonably to accommodate the relevant policies concerning law
enforcement and professional conduct, and, as discussed in the previous
section, there is no basis for concluding that the Department has
exceeded its statutory authority. Moreover, the purpose of these rules,
as defined in section 77.1, is to ``ensure the Department's ability to
enforce federal law effectively and ethically'' and so fulfill the
Department's statutory responsibilities. See Capital Cities Cable, Inc.
v. Crisp, 467 U.S. 691, 700 (1984) (authority to regulate extends to
all regulatory actions necessary to ensure the achievement of statutory
responsibilities).
The ``presumption against finding preemption of state law in areas
traditionally regulated by the States,'' California v. ARC America
Corp., 490 U.S. 93, 101 (1989), and the traditional state regulation of
legal practice and lawyers' ethics, Leis v. Flynt, 439 U.S. 438, 442
(1979), does not foreclose the Attorney General from concluding that it
is appropriate here to displace those state rules that regulate the
conduct of federal officials in the performance of their law
enforcement duties. Here, the presumption against preemption is
overcome by this regulation's express preemption provision, which is
fully effective even in matters traditionally occupied by the states.
Furthermore, under the intergovernmental immunity doctrine, states
may not directly regulate or punish federal officials for acts
undertaken in their official capacities, or otherwise substantially
interfere with the lawful functions of federal officials. See, e.g.,
Hancock v. Train, 426 U.S. 167, 178-79 (1976); M'Culloch v. Maryland,
17 U.S. (4 Wheat) 316, 437 (1819); Ethical Restraints of the ABA Code
of Professional Responsibility on Federal Criminal Investigations, 4B
Op. O.L.C. 576, 601-02 (1980). ``An officer of the United States
cannot, in the discharge of his duty, be governed and controlled by
state laws, any further than such laws have been adopted and sanctioned
by the legislative authority of the United States.'' Bank of the United
States v. Halstead, 23 U.S. (10 Wheat.) 51, 63 (1825). Contacts covered
by this regulation fall within the scope of federal attorneys' duties
to carry out the law enforcement activities of the United States. The
application to those attorneys of state ethics laws prohibiting such
conduct therefore would constitute interference with the activities of
the federal government forbidden by the intergovernmental immunity
doctrine.
For the foregoing and other reasons, the Department believes that
this regulation effectively preempts state ethical rules regarding
contacts with represented persons.
3. The Department's Authority to Supersede Federal District Court
Rules. Most federal district courts have adopted as local federal
district court rules one of the two sets of ABA rules or a similar
anti-contact rule of the state in which the district court sits. See
Rand v. Monsanto Co., 926 F.2d 596, 601-603 (7th Cir. 1991). Such
adoption gives the state rules the force of federal law. See United
States v. Hvass, 355 U.S. 570, 575 (1958). One individual and two
organizations commented that this regulation, if promulgated, would
abrogate the primary authority of federal courts to regulate the
conduct of attorneys arising out of federal law enforcement
proceedings.
The Department views this concern as significant but essentially
theoretical, because the regulation has been crafted so that it will
not operate in a way that puts it into conflict with local district
court rules. However, in response to these comments, it should be noted
that through this regulation the Department does intend not only to
preempt the application by state courts of state rules relating to
contacts by attorneys for the government, but also to supersede the
application by federal courts of the local federal district court rules
relating to contacts by government attorneys in civil and criminal law
enforcement investigations and proceedings. See Sec. 77.12 and
accompanying commentary.
There are two reasons why the promulgation and operation of this
regulation is unlikely to present the issue of abrogation of federal
court authority identified by these commenters. The first is that the
regulation adopts the line of analysis adopted by the great weight of
authority interpreting local district court rules governing contacts
with represented persons. See United States v. Ryans, 903 F.2d 731, 739
(10th Cir.) (discussing cases), cert. denied, 498 U.S. 855 (1990). The
Department has not sought in this regulation to validate conduct that
would otherwise be invalid under most local district court rules.
In addition, nearly all district courts that have adopted local
rules governing contacts with represented persons have incorporated the
``authorized by law'' exception in the Model Rules or in the
corresponding state rule. See generally Rand, 926 F.2d at 601-603. As
explained above, this regulation constitutes ``law'' within the meaning
of any such exception. Thus, the conduct this regulation authorizes is
for that reason equally authorized by these local district court rules.
Thus, this regulation in practice should not present any tension
between the federal executive and judicial powers. In response to the
commenters' suggestion that any tension would have to be resolved in
favor of the judicial power, however, the Department disagrees. Were
the issue to arise, it would be properly considered, as an initial
matter, as a question of the proper exercise of delegated legislative
authority. Congress, not the courts, has the primary power to prescribe
rules for the federal courts. See Palermo v. United States, 360 U.S.
343, 353 n. 11 (1959); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10
(1941). See generally Hanna v. Plumer, 380 U.S. 460, 472-73 (1965). In
the case of this regulation, Congress has delegated that authority by
statute to the Attorney General. This regulation therefore has no less
legal force than, for example, the Federal Rules, which derive their
ultimate authority from legislation. See 28 U.S.C. Secs. 2071 et seq.
Local district court rules, even those dealing with attorney
discipline, may not displace legislatively-authorized national rules of
procedure. Rand, 926 F.2d at 600 (Rules of Civil Procedure). Accord,
Baylson v. Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 107
(3d Cir. 1992) (Rules of Criminal Procedure). A local rule inconsistent
with a regulation lawfully issued under statutory authority is, as a
matter of law, inconsistent with the underlying statute, and must yield
to Congress's paramount authority as delegated to the department or
agency issuing the regulation. Thus, the conclusion that the Attorney
General has the statutory authority to promulgate the proposed
regulation entails the further conclusion that the regulation displaces
inconsistent local federal court rules.
Furthermore, the regulation has been carefully drawn in such a way
so that once a person has been brought before a court, in general no
substantive communication can occur without the consent of counsel
unless: the court finds a knowing, intelligent, and voluntary waiver;
the communication is made pursuant to court-approved discovery
procedures; or the communication concerns a criminal or civil offense
different from the offense before the court. The regulation thus
accords substantial and appropriate deference to the court's
supervisory authority over the parties and proceedings before it.
Moreover, this regulation does not purport to disturb the authority of
federal courts to fashion appropriate remedies when an ex parte contact
violates the Constitution. See Sec. 77.11(b) and accompanying
commentary. Therefore, federal courts will retain significant powers
under the Constitution to respond to or sanction improper ex parte
contacts by government attorneys with represented parties.
The balance of the regulation regulates contacts with persons who
are not before the court, and as to whom the supervisory authority of a
federal court is, at best, attenuated. See, e.g., United States v.
Payner, 447 U.S. 727, 735 n. 7 (1980) (``The supervisory power merely
permits federal courts to supervise the administration of criminal
justice among the parties before the bar.''); United States v.
Williams, 112 S. Ct. 1735, 1742 (1992) (federal court has no
``supervisory'' judicial authority to prescribe standards of
prosecutorial conduct before the grand jury in the first instance). It
would raise significant separation of powers concerns for a district
court to assert supervisory authority to regulate and sanction the
conduct of executive branch attorneys when the Attorney General has
adjudged such conduct legitimate and necessary for law enforcement
purposes, when that judgment has been embodied in a duly promulgated
regulation, and when the conduct concerns persons who have not yet come
before the court.
C. Sufficiency of Internal Enforcement Mechanisms. Four
organizations and two individuals commented that these rules, as
proposed, lacked enforcement mechanisms sufficient to deter prohibited
communications. These comments took two forms: (1) a general suggestion
that the Department could not be trusted to police itself (or as, one
commenter put it, it would be a case of ``the fox maintain[ing] . . .
guard over the hen-house''); and (2) a specific concern that the
restrictions to be placed in the United States Attorneys' Manual would
not in fact be enforced against Department attorneys who violated them.
The Attorney General has exclusive authority over any violations of
these rules. As a general matter, violations of these rules will be
addressed as matters of attorney discipline by the Department, rather
than by any external disciplinary authority. Only if the Attorney
General finds a willful violation of these rules may sanctions for the
violations be imposed by a state disciplinary authority. This
disciplinary structure reflects the Department's belief that allowing
sanctions to be issued independent of the Department's internal review
process would frustrate the Department's efforts to eliminate the
current uncertainty arising from the differing interpretations of the
various anti-contact rules by federal courts, state courts, and state
disciplinary authorities. The Department intends fully to enforce these
rules and to issue appropriate and strong sanctions for any violation
of these rules.
The Department also disagrees with those comments that suggest that
the provisions the Department currently intends to add to the United
States Attorneys' Manual will not be enforced. The Manual contains a
great number of significant Department of Justice policies, many of
which impose substantial restrictions on Department attorneys. There is
no evidence that such policies are routinely overlooked by Department
attorneys or that violations of policies set forth in the Manual are
not regarded by the Department as serious breaches of professional
duties. On the contrary, the failure to follow such policies is taken
very seriously. The Department expects its attorneys involved in
criminal or civil law enforcement to follow all provisions in the
Manual amendments that it intends to issue regarding ex parte contacts.
Failure to follow such rules will result in appropriate discipline by
the Department.
V. Section-by-Section Analysis
Section 77.1: Purpose and Authority
Comments relating to this section are addressed in the ``General
Comments'' section above. No changes have been made to this section.
Section 77.2: Definitions
The following terms are defined in section 77.2 of this part. In
the final rule, unlike in the proposed rule, these terms are arranged
alphabetically for the reader's ease.
a. ``Attorney for the government.'' The term ``attorney for the
government'' includes virtually all Department of Justice attorneys
with investigative, litigative, or management responsibilities,
regardless of title. It does not, however, include law enforcement
agents employed by the Department of Justice who are also members of
state bars, if they are employed as, and are performing the function
of, agents rather than attorneys. The Federal Bureau of Investigation,
Drug Enforcement Agency and other investigative agencies have long
recruited individuals with advanced degrees--including, for example,
engineering, business, and law degrees--to serve as agents. The
Department strongly encourages the recruitment of educated and
specially-trained individuals for positions as agents. An agent's bar
membership should not adversely affect his or her ability to conduct
comprehensive investigations and otherwise to fulfill his or her law
enforcement functions. Therefore, the rule specifically exempts
attorney-agents from its scope if they are employed by the government
as investigative agents and not as attorneys.
The term also does not include attorneys for departments or
agencies outside the Department of Justice, regardless of their
litigative authority, except to the extent such persons have been
specially appointed pursuant to 28 U.S.C. 515 or 543.
Two Department of Justice components commented that the definition
of ``attorney for the government,'' which explicitly covers attorneys
employed in the six main divisions of the Department, should be amended
to cover all attorneys working in the legal offices of the various
Department agencies, such as the Drug Enforcement Administration and
the Federal Bureau of Investigation. The Department agrees that the
definition of ``attorney for the government'' should not distinguish
between attorneys employed in the Department's divisions and attorneys
employed in the Department's agencies, given that both sets of
attorneys exercise similar functions and responsibilities with respect
to criminal investigations and prosecutions. Accordingly, the
definition of ``attorney for the government'' has been modified to
include explicitly ``the Chief Counsel of the DEA and any attorney
employed in that office, the General Counsel of the FBI and any
attorney employed in that office or in the Legal Counsel Division of
the FBI, and, in addition, any attorney employed in, or head of, any
other legal office in a Department of Justice agency.''
b. ``Civil Law Enforcement Investigation.'' This term includes any
investigation of potential civil violations of, or claims under,
federal law that may form the basis of a civil law enforcement
proceeding, as defined in paragraph 77.2(c).
c. ``Civil Law Enforcement Proceeding.'' The term ``civil law
enforcement proceeding'' encompasses a variety of activities beyond the
particular areas identified in the definition, which are intended only
to be illustrative.
The exclusion of proceedings related to the enforcement of an
administrative subpoena or summons or a civil investigative demand
(CID) is intended to ensure that the filing of such a proceeding does
not trigger the limitations of section 77.5, which generally prohibits
ex parte communications once adversary proceedings have commenced
against a represented ``party.'' Thus, the filing by the United States
of a proceeding to enforce a subpoena, summons, or CID will not
prohibit further investigatory communications regarding the underlying
substantive violations.
The final sentence of paragraph 77.2(c)(2) ensures that the United
States need not be the plaintiff in order for a civil action to be
``brought by the United States,'' but may be a counterclaimant or
cross-claimant if the counterclaim or cross-claim otherwise fits within
the description of civil law enforcement.
d. ``Cooperating witness or individual.'' A ``cooperating witness
or individual'' is defined to include informants, witnesses, and other
persons who are not law enforcement agents, but only to the extent that
such a person is acting ``to assist the government in an undercover or
confidential capacity.''
e. ``Employee.'' The term ``employee'' is not limited to its
literal meaning, but also includes officers, directors, partners,
members, and trustees. See Sec. 77.10 (communications involving
organizations). An independent contractor would not be considered an
``employee'' for purposes of these rules.
f. ``Organization.'' The term ``organization'' includes any
corporation, partnership, association, joint-stock company, union,
trust, pension fund, unincorporated organization, state or local
government or political subdivision thereof, or non-profit
organization. It does not, of course, include groups of individuals
``associated in fact'' within the meaning of the racketeering statutes.
See 18 U.S.C. 1961(4).
Communications with organizations and their employees are governed
generally by section 77.10.
g. ``Person.'' The term ``person'' includes individuals and
organizations as defined in paragraph 77.2(f).
h. ``Undercover investigation.'' Under this definition, the
hallmark of an ``undercover operation'' is an investigation in which an
individual ``whose identity as an official of the government or a
person acting at the behest thereof is concealed or is intended to be
concealed.'' This definition is intended to be read broadly to include
every type of law enforcement investigation in which the identity of a
government employee, or the fact that an individual is cooperating with
the government, is concealed.
Section 77.3: Represented Party; Represented Person
This section differentiates between a represented ``party'' and a
represented ``person.'' This distinction is fully consistent with the
language of and principles underlying DR 7-104(a)(1) and Model Rule
4.2, which establish general prohibitions against ex parte contacts
with a represented ``party.'' Section 77.5 of this part generally
prohibits government attorneys from initiating ex parte contacts with
represented parties, but does not prohibit ex parte contacts with
represented persons. (However, sections 77.8 and 77.9 also prohibit
certain contacts with represented persons).
An individual is considered to be a ``represented party'' under
paragraph 77.3(a) if: (1) the person is represented by counsel; (2) the
representation is current and concerns the subject matter in question;
and (3) the person has either been arrested or charged in a federal
criminal case or is a defendant in a civil law enforcement proceeding
concerning the subject matter of the representation. If the person is
currently represented in fact regarding the subject matter in question,
but has not been charged or arrested, that person is considered a
``represented person.'' Thus, witnesses, suspects, and targets of
investigations who have not been indicted or arrested, but are
represented regarding the subject matter in question, are considered
represented persons under this rule.
Several commenters argued that this section's basic distinction
between represented ``persons'' and represented ``parties'' runs
counter to the policy considerations underlying DR 7-104(A)(1) and
Model Rule 4.2. However, as discussed in the ``General Comments''
section, this distinction is consistent with the vast majority of
federal court opinions interpreting DR 7-104(A)(1) and Model Rule 4.2.,
as well as the text of those rules. Furthermore, this distinction is
grounded in logic and common sense, given the legitimate necessity for
attorneys for the government to be able to direct agents and
cooperating witnesses to contact represented persons during undercover
investigations.
One organization commented that prosecutors will hold back on
filing formal charges in order to maximize their ability to communicate
with represented ``persons.'' The Department does not agree that
prosecutors are likely to engage in this kind of systematic
manipulation. The capacity to do so exists under the Sixth Amendment
(given that the Sixth Amendment right to counsel attaches only once
formal charges are filed, see Brewer v. Williams, 430 U.S. 387, 398
(1979)), but there is no evidence of systematic prosecutorial abuse of
the charging process under the Sixth Amendment. Furthermore, the
Department intends to add a new provision to the United States
Attorneys' Manual that will prohibit a Department attorney from
communicating overtly with a ``target'' of an investigation before he
or she is formally charged or named as a civil defendant, except in
specifically enumerated circumstances.
Section 77.4: Constitutional and Other Limitations.
This section makes clear that this regulation does not purport to
authorize any communication prohibited by the Constitution or any
federal statute or Federal Rule of Criminal or Civil Procedure.
Although these rules do not supersede the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure, this limitation
does not extend to other rules regarding procedure in federal courts.
Thus, rules of procedure adopted by individual courts as local rules,
many of which incorporate state bar rules, are not included in this
limitation; and, in fact, this regulation is explicitly intended to
supersede local federal court rules regarding ex parte contacts by
attorneys for the government. See Sec. 77.12 and accompanying
commentary.
No specific comments were received regarding this section, and it
has not been changed.
Section 77.5: General Rule for Civil and Criminal Enforcement;
Represented Parties
This section closely tracks the language of DR 7-104(A)(1) and
Model Rule 4.2 and applies similar prohibitions to attorneys for the
government. The section prohibits an attorney for the government from
communicating with a represented party, as defined in section 77.3,
about the subject matter of the representation without the consent of
that individual's attorney. As with DR 7-104(A)(1) and Model Rule 4.2,
the prohibition applies only if the attorney for the government knows
that the represented party is, in fact, represented by counsel.
Therefore, communications by an attorney for the government with a
represented party will not violate this rule if the attorney for the
government is unaware of the fact of representation.
This section also prohibits an attorney for the government from
causing another individual to communicate with a represented party.
Accordingly, this rule proscribes an attorney from directing a
government investigator to do what the attorney himself or herself is
prohibited from doing. Conversely, a government attorney will not be
personally responsible for the actions of agents in communicating with
represented persons unless, in doing so, the agents were acting as the
attorney's ``alter ego.'' See United States v. Heinz, 983 F.2d 609,
612-14 (5th Cir. 1993).
It also should be noted that this provision is violated (and thus,
a basis for departmental discipline exists) when an inappropriate
communication takes place, regardless of whether or not the
communication results in eliciting an inculpatory statement or is
otherwise prejudicial to the represented party.
No specific comments were received regarding this section, and it
has not been changed.
Section 77.6: Exceptions; Represented Parties
This section describes the circumstances under which Department
attorneys may communicate, or cause others to communicate, with a
represented party whom the Department attorney knows is represented
concerning the subject matter of the representation, without first
obtaining the consent of the represented party's counsel.
Paragraph (a): Determination if representation exists.
This exception recognizes the fact that there is no reason to
prohibit a limited inquiry about whether an individual is, in fact,
represented by counsel regarding the relevant subject matter. Such an
inquiry does not involve the kind of communication about which courts
have expressed concern and has little potential for undermining the
attorney-client relationship. It is also consistent with DR 7-104(A)(1)
and Model Rule 4.2.
There may be uncertainty about the existence of representation with
respect to whether it has been established, whether it may have been
terminated, and whether a particular subject falls within the scope of
the representation. The first issue typically arises before a judicial
or other appearance, when the government attorney has some information
suggesting that the person may be represented. It also may arise when
an attorney purports to represent a group of persons, such as all the
employees of a corporation. Uncertainty about the termination of the
representation may arise when substantial time has passed since it was
made known that the person was represented by counsel or when the
attorney for the government has reason to believe that the
representation has ceased. It is unlikely, however, that such
uncertainty will arise when there are pending judicial proceedings,
because in such circumstances the court in most jurisdictions must
approve termination of representation.
In response to one comment, it is worth clarifying that that
representation is presumed to cease to be current for purposes of these
rules when the matter in question has reached a final judgment (i.e.,
once the direct appeals process, including any petition for certiorari,
has run its full course), unless there is reason to believe that
representation is continuing.
When inquiring about the status of representation, government
attorneys and agents generally must refrain from stating whether it is
necessary or desirable to be represented by counsel. After the right to
counsel has attached, a statement or implication suggesting that
counsel is not providing proper or effective representation could
violate the Sixth Amendment right to effective assistance of counsel.
See United States v. Morrison, 449 U.S. 361, 364 (1981).
One organization commented that the right to inquire whether a
party is represented by counsel is an invitation to a more substantive
conversation with a represented party with respect to the matter
underlying the representation, which would violate these rules. The
Department does not agree that this paragraph creates a significant
potential for abuse. This exception, which is clear in its terms,
allows Department attorneys to do no more than determine whether a
person is in fact represented by counsel. The Department expects that
all Department attorneys will understand the limited parameters and
purpose of this exception, and any attempt to use this paragraph to
gather additional information about the subject matter of the
representation would be a clear violation of these rules and would
constitute sanctionable conduct.
Paragraph (b): Discovery or judicial or administrative process.
Any communication that is authorized by discovery procedures, such
as a deposition of a party-opponent, or by judicial or administrative
process, such as a grand jury, deposition, or trial subpoena or an
administrative summons, obviously should not be prohibited by any rule.
See United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir. 1989), cert.
denied, 493 U.S. 1071 (1990) (prosecutor's questioning of represented
person before the grand jury outside the presence of counsel is
``authorized by law'' under DR 7-104). Among other reasons for this
exception, a person who is served with process has an opportunity to
consult with counsel prior to his or her appearance at the proceeding,
and may have counsel present if desired during the proceeding (except,
of course, while testifying before a grand jury). More generally,
communications authorized by discovery procedures already have in place
appropriate mechanisms for protection of the attorney-client
relationship. This provision ensures that this regulation does not
prevent such communications from continuing to be allowed.
This exception does not purport to authorize any communications not
otherwise available pursuant to approved discovery procedures or legal
process. However, one individual commented that the text of paragraph
(b), as proposed in March 1994, might be construed to authorize certain
discovery procedures--such as the taking of a party's deposition
testimony in the absence of the party's attorney and without the
attorney's prior agreement--even where such practice was not in
accordance with the rules of the applicable tribunal. To clarify that
this paragraph's intent is to authorize only approved discovery
procedures or legal process, this paragraph has been amended in the
final rule to exempt only those communications made pursuant to
discovery procedures or legal process ``in accordance with the orders
or rules of the court or other tribunal where the matter is pending.''
Paragraph (c): Initiation of communication by represented party.
This paragraph sets out the circumstances under which it is proper
for a government attorney to communicate with a represented party who
has initiated contact, without the consent of that party's counsel.
A defendant may wish to communicate with the government outside the
presence of counsel for many valid reasons. For instance, a defendant
may wish to cooperate with the government but not want his or her
attorney to know for fear that the attorney will disclose the
defendant's intentions to others. This situation may arise, for
example, when the defendant's attorney is being paid by another
individual involved in a criminal enterprise, and the defendant
questions whether he or she has the attorney's undivided loyalty. The
same problem may arise when a single attorney represents multiple
parties who are part of the same criminal enterprise.
When the desire of a defendant or arrestee to speak with the
attorney for the government outside the presence of his or her counsel
is ``voluntary, knowing, and informed,'' there is no valid reason to
prohibit the government from engaging in such communications. In fact,
the Department believes that it would be a dereliction of its
obligation vigorously to enforce federal law if it promulgated a rule
that would prohibit such communications.
It is well established that an individual who is entitled to
counsel under the Fifth Amendment or the Sixth Amendment may waive that
right and choose to communicate with the government outside the
presence of his or her attorney, ``provided the waiver is made
voluntarily, knowingly and intelligently.'' Moran v. Burbine, 475 U.S.
412, 421 (1986) (internal quotations omitted); Patterson v. Illinois,
487 U.S. 285, 292 (1988); Brewer v. Williams, 430 U.S. 387, 404-06
(1977). In such a situation, the defendant should not be prohibited
from engaging in communications that are allowed by the Constitution by
a disciplinary rule that was intended to protect that individual in the
first place. Neither common sense nor the principles underlying DR 7-
104 and Rule 4.2 requires such a result.
This paragraph includes procedural protections designed to ensure
that such waivers are in fact voluntary, knowing, and informed. After a
represented individual has been arrested or charged in a criminal
proceeding or is named as a defendant in a civil law enforcement
proceeding, this paragraph requires that several steps be taken before
a government attorney may engage in a substantive discussion with the
represented party. First, the government attorney must inform the
individual of his or her right to speak through his or her attorney and
to have that attorney present for any communications with the
government attorney. Second, the represented party must manifest his or
her desire to waive the right to counsel in a voluntary, knowing, and
informed way. If at all possible, the attorney for the government
should obtain a signed written waiver. Third, the attorney for the
government must bring the matter before the appropriate district court
judge, magistrate judge, or other tribunal of competent jurisdiction.
Then, it is up to the court to determine that the waiver satisfies the
provisions of this rule or that substitute counsel is in place
(including counsel appointed at that time by the court) who has
consented to the communication.
This paragraph does not require, however, that the waiver must
always take place before the judge or magistrate judge. In exceptional
circumstances, it may be impractical or unsafe to bring the defendant
before a judge or magistrate judge to secure the waiver. In such
circumstances, the government attorney may secure a waiver from the
defendant outside the court, and, before any substantive discussion
between the defendant and the government takes place, bring evidence of
the waiver to the court so that the court can determine whether the
waiver was made knowingly, intelligently, and voluntarily.
One United States Attorney's Office commented that paragraph (c),
as proposed, appeared to require an attorney first to obtain an
informed waiver and only after receiving such a waiver to bring the
matter before the appropriate tribunal. The Department does not intend
to require (and does not understand the text of paragraph (c) to
require) an attorney for the government, when contacted by a
represented party, necessarily to attempt to secure a waiver himself or
herself before bringing the matter to the attention of the court. A
government attorney who is contacted by a represented party may,
consistent with this paragraph, choose to bring the matter directly to
the attention of the court, assuming the represented party has
manifested his or her desire to waive the right to counsel. The court
then would determine whether the party wishes to waive the presence of
counsel for the communication. In general, however, the usual practice
is for the government attorney to obtain from the represented party a
waiver before bringing the matter before the court.
As noted above, the initiation of ex parte contacts by represented
parties frequently occurs in the context of the ``fearful defendant''
whose attorney has been chosen by a third party, often an individual
above the defendant in the criminal hierarchy. Such a defendant may
wish to cooperate with the government but may fear that his life or
safety will be endangered if his attorney learns of the cooperation.
Although the need for a mechanism by which a represented party can
initiate contacts with the government is particularly acute in this
context, paragraph (c) is not limited to this setting. Rather, the
proper inquiry is whether the represented party's waiver of the right
to counsel is voluntary, knowing, and informed, not whether the
represented party has established some overriding justification for his
or her decision.
One organization objected to the extension of this exception to
anyone other than a ``fearful defendant,'' suggesting that any other
client will have no better reason to initiate communication than ``a
misguided belief that he can help himself by talking to the
prosecutor.'' The Department believes that it would be overly
paternalistic to refuse to permit any but fearful represented parties
to initiate direct contact with the government. Given that a criminal
defendant has a constitutional right to decline legal representation
entirely, see Faretta v. California, 422 U.S. 806 (1975), government
attorneys should not be ethically bound to refuse to listen to a
criminal defendant who chooses to decline the presence of counsel for
purposes of a particular communication with appropriate court approval.
Additionally, it would be neither workable nor proper to require a
Department attorney or judicial officer to probe the client about his
or her relationship with counsel in order to ascertain whether the
client is genuinely fearful, or fearful enough, of his or her
attorney's involvement to justify a conversation outside the presence
of counsel. Such an inquiry would tend to enhance, not minimize,
intrusion into the attorney-client relationship. A more reliable
protection of the client's interest and of the attorney-client
relationship is this paragraph's careful process of testing the
client's desire (as opposed to the client's reasons) for waiving the
presence of counsel. This is the same analysis the courts undertake in
assessing waivers of the constitutional rights to counsel or against
self-incrimination. The proper issue in such a setting, as here, is
whether the waiver is knowing, intelligent, and voluntary.
Another commenter opined that paragraph (c), by allowing
represented parties to waive the presence of counsel and speak directly
to a government attorney, would authorize a violation of the
represented party's constitutional rights under Miranda v. Arizona, 384
U.S. 436 (1966), and its progeny. Cases following Miranda provide that
custodial interrogation must cease whenever the person in custody
invokes his or her right to have counsel present. See, e.g., Edwards v.
Arizona, 451 U.S. 477 (1981). However, the prohibition against further
interrogation does not apply when the accused himself or herself
initiates further communication, see id. at 484-86, which would need to
be the case for this paragraph to apply.
Paragraph (d): Waivers at the time of arrest.
The previous paragraph (paragraph (c)) provides the general
guidelines regarding how a represented party may waive protections
otherwise provided under this regulation. This paragraph provides for a
different rule dealing specifically with a waiver at the time of
arrest.
This paragraph provides that a government attorney may communicate
directly with a represented party ``at the time of arrest of the
represented party'' without the consent of that party's counsel,
provided that the represented party has been fully informed of his or
her constitutional rights at that time and has waived them. The
government attorney need not comply with any of the additional
requirements of paragraph (c) in such a situation.
A substantial body of law has developed regarding waiver of
constitutional rights in the immediate post-arrest setting. The
Department believes that the constitutional protections established in
that decisional law adequately protect represented individuals
following arrest. Furthermore, the effectiveness of post-arrest
interviews would be significantly curtailed if the procedural
requirements of paragraph (c) applied. Accordingly, this paragraph is
intended to preserve this investigative tool without adding any
additional procedural requirements.
The Department received two comments regarding this paragraph: one
relating to the timing of the waiver, and the other relating to the
terms of the waiver.
A Department component commented that it would clarify the meaning
of a communication ``at the time of the arrest of the represented
person'' to add to the text that such communication must be made ``at
the time of the arrest of the represented party before he or she is
presented to a judicial officer with respect to that arrest . . . .''
The Department has decided against adopting the proposed additional
language, because it would unadvisedly extend this exception beyond its
proper and intended narrow limits. This exception to the general rule
against post-arrest communications is designed to preserve the ability
of government attorneys to interview individuals immediately (i.e.,
within hours) following arrest as an effective and important law
enforcement tool. See, e.g., 18 U.S.C. 3501(c). It is not intended to
allow government attorneys to attempt to initiate communications with
an arrested person any time before the person is presented to a
judicial officer, which can extend days beyond the ``time of arrest.''
The Department believes that such an extension of this limited
exception could put excessive pressure on clients and unduly intrude
upon the attorney-client relationship.
A United States Attorney's Office commented that proposed paragraph
(d), under which the represented party must be advised of and waive
``his or her constitutional rights,'' could be construed to require the
represented party to be explicitly told that he or she has a right to
his or her attorney, and not just that he or she has a right to an
attorney (as required by Miranda v. Arizona, 384 U.S. 436 (1966)). This
paragraph is intended to apply whenever an arrested person is read his
or her Miranda rights and waives those rights; it is not intended to
require the represented party to be apprised of his right to counsel in
any different or more specific terms than Miranda and its progeny
require. To make clear that the usual Miranda warnings and waiver
suffice for purposes of this section, paragraph 77.6(d) has been
amended in the final rule to read as follows: ``The communication is
made at the time of the arrest of the represented party and he or she
is advised of his or her rights under Miranda v. Arizona, 384 U.S. 436
(1966), and voluntarily and knowingly waives them.''
Paragraph (e): Investigation of additional, different, or ongoing
crimes or civil violations.
The Sixth Amendment right to counsel is ``offense-specific.''
McNeil v. Wisconsin, 111 S. Ct. 2204, 2207 (1991). Thus, a defendant
whose Sixth Amendment rights have attached as to one offense remains
subject to questioning, whether direct or covert, regarding uncharged
crimes. Id.; Maine v. Moulton, 474 U.S. 159, 180 n.16 (1985); United
States v. Mitcheltree, 940 F.2d 1329, 1342 (10th Cir. 1991); United
States v. Terzado-Madruga, 897 F.2d 1099, 1111-12 (11th Cir. 1990);
United States v. Chu, 779 F.2d 356, 368 (7th Cir. 1985); United States
v. Grego, 724 F.2d 701, 703 (8th Cir. 1984). The proposed rule employs
an analogous approach, permitting ex parte contacts with a represented
party if the contacts involve the investigation of offenses as to which
the represented party has been neither arrested nor charged in a
criminal or civil law enforcement proceeding. The Department believes
this approach is wholly consistent with DR 7-104 and Model Rule 4.2 and
the cases interpreting those rules.
Accordingly, this section provides that communications may be made
in the course of investigations of additional, different, or ongoing
criminal or unlawful activity, even though the individual is
represented by counsel with respect to conduct for which he or she has
already been arrested or charged. Such additional criminal or unlawful
conduct is typically one of three varieties: (1) conduct that is
separate from the original wrongful conduct; (2) crimes or unlawful
conduct that are intended to impede the administration of justice or
the trial of the charged crime, such as subornation of perjury,
obstruction of justice, jury tampering, or murder, assault, or
intimidation of witnesses; and (3) conduct that is a continuation of
the charged crime, such as a conspiracy or a scheme to defraud that
continues past the time of indictment. The new or additional criminal
or wrongful activity may have occurred in the past or may be ongoing at
the time of the investigation.
One organization objected to this section's coverage of criminal or
wrongful activity that has already been completed at the time of the
communication, as distinct from activity that is ongoing. However, the
Department sees no basis in the policies underlying the Sixth Amendment
and the Model Rules for basing the propriety of investigation into
additional or different uncharged crimes on whether such activity is
complete or ongoing.
One individual expressed concern that Department attorneys would
exploit this exception by making gratuitous allusions to other offenses
in the course of an otherwise illicit contact with a represented party.
As noted above, prevailing case law interpreting the Sixth Amendment
and the Model Rules permit an attorney to question a defendant as to
uncharged offenses, and there is no evidence of systemic prosecutorial
abuse of this type of interrogation. Accordingly, there is no reason to
suspect that prosecutorial practice under these rules will be
different.
Paragraph (f): Threat to safety or life.
The Supreme Court has recognized that, in certain limited
situations, the need to guard against threats to public safety can
justify noncompliance with otherwise applicable constitutional
safeguards. See Warden v. Hayden, 387 U.S. 294, 298-99 (1967)
(warrantless search permissible when delay would endanger lives of
officers and citizens); New York v. Quarles, 467 U.S. 649, 657 (1984)
(``the need for answers to questions in a situation posing a threat to
the public safety outweighs the need for the [Miranda] prophylactic
rule protecting the Fifth Amendment's privilege against self-
incrimination''). This paragraph recognizes an analogous exception to
the general prohibition against communications with represented parties
in the absence of their counsel. It is the Department's intention that
this exception be invoked only in rare circumstances and only for the
purpose of protecting human life or safety.
The exception has three requirements: (1) the attorney for the
government must have a good faith belief that the safety or life of any
person is threatened; (2) the purpose of the communication must be to
obtain information to protect against the risk of injury or death; and
(3) the attorney for the government must, in good faith, believe that
the communication is reasonably necessary to protect against such risk.
These requirements are imposed to ensure that the exception is invoked
only to protect human life or safety, and not as a routine matter in
violent crime prosecutions. For example, the fact that potentially
dangerous firearms have not been recovered would not in and of itself
be sufficient under ordinary circumstances to constitute a threat to
safety under this exception. Furthermore, the communication must be for
the purpose of protecting human life or safety, and may not be designed
to elicit testimonial evidence. However, information thus obtained may
be used for any purpose consistent with constitutional limitations.
No specific comments were received regarding this paragraph, and it
has not been changed.
Section 77.7: Represented Persons; Investigations
As noted in the discussion of section 77.3, individuals and
organizations who are neither defendants nor arrestees are not
``parties'' within the meaning of this rule, and the general
prohibition on ex parte contacts therefore does not apply. This section
makes clear that attorneys for the government are authorized to
communicate, directly or indirectly, with a represented person unless
the contact is prohibited by some other provision of federal law. These
communications are subject, however, to the restrictions set forth in
sections 77.8 and 77.9 regarding certain categories of negotiations and
respect for attorney-client relationships.
Two individuals commented that this section, even as limited by
sections 77.8 and 77.9, allows a broader range of contact with persons
under investigation than is necessary to meet the Department's
legitimate investigative needs. These individuals agreed that the
government must be free to conduct undercover operations and
investigations, even when field investigators coming into contact with
potential criminal or civil respondents are directed by government
attorneys. They argued, however, that overt communications with persons
during the investigative stage are not similarly justified.
The Department agrees that overt communications between a
government attorney and a represented person during the investigative
stage raise different considerations from covert communications and
should be subject to greater restrictions. For this reason, the
Department plans to make revisions to the United States Attorneys'
Manual providing that government attorneys should engage in overt
communications only after carefully considering whether the
communication is more appropriately handled by others, and should
generally not communicate overtly, or cause another to communicate
overtly, with a target of a federal criminal or civil investigation,
who is known by the Department attorney to be represented by counsel,
concerning the subject matter of the representation. Nevertheless, the
Department believes that overt contacts by federal attorneys and agents
with witnesses and subjects of investigations are often necessary for
effective law enforcement and hence should be permitted.
Section 77.8: Represented Persons and Represented Parties; Plea
Negotiations and Other Legal Agreements
This section prohibits government attorneys from initiating or
engaging in negotiations of certain specified legal agreements with any
individual whom the government attorney knows is represented by
counsel, without the counsel's consent. Even when the regulation
otherwise permits substantive discussions with a represented party or
represented person, it ordinarily would be improper for a government
attorney to initiate or negotiate a plea agreement, settlement,
immunity agreement or any other disposition of a claim or charge
without the consent of the individual's counsel. The one exception to
this prohibition occurs when the communication is initiated by the
represented person or represented party and the procedural safeguards
provided for in paragraph 77.6(c) are satisfied.
The Department believes that this section is important for the
preservation of the attorney-client relationship. One of the primary
purposes of DR 7-104 and Model Rule 4.2 is to protect an individual
represented by counsel from overreaching by an attorney for an
adversary. The Department believes the risk and the consequences of
such overreaching are at their greatest during negotiations over plea
agreements, settlements, and other key legal agreements. The training,
experience, and knowledge of the law possessed by an attorney is
particularly valuable in such situations.
The prohibition contained in this section includes all negotiations
of the terms of a particular plea agreement, settlement agreement, or
other agreement covered by the section. However, this section does not
prohibit an attorney for the government from responding to questions
regarding the nature of such agreements, potential charges, potential
penalties, or other subjects related to such agreements during an
otherwise permissible discussion. Nevertheless, an attorney for the
government should take care in such situations not to go beyond
providing information on these and similar subjects and should
generally refer the represented person to his or her counsel for
further discussion of these issues. The government attorney should also
make it clear that he or she will not negotiate any agreement with
respect to the disposition of criminal charges, civil claims or
potential charges, or immunity agreements without the consent of
counsel.
No specific comments were received regarding this section, and it
has not been changed.
Section 77.9: Represented Persons and Represented Parties; Respect for
Attorney-Client Relationships
When an attorney for the government communicates with a represented
party pursuant to one or more of the exceptions listed in section 77.6,
or with a represented person pursuant to section 77.7, the
communication is nevertheless subject to the restrictions of this
section.
Paragraph (a): Deference to Attorney-Client Relationship
Federal courts have recognized that it is improper for an attorney
for the government to disparage counsel for the represented party or
otherwise to seek to disrupt the relationship between that party and
his attorney. See, e.g., United States v. Morrison, 449 U.S. 361, 362,
367 (1981); United States v. Weiss, 599 F.2d 730, 740 (5th Cir. 1979);
id. at 740-41 (Godbold, J., specially concurring). This paragraph
codifies those basic principles by prohibiting communications that: (1)
attempt to elicit information regarding lawful defense strategies; (2)
disparage the represented party's counsel; or (3) otherwise improperly
seek to disrupt the attorney-client relationship. These prohibitions
apply in every phase of criminal and civil enforcement investigations
and proceedings.
However, the paragraph also accommodates an important exception to
this prohibition. Courts have held that a government attorney may not
permit legal proceedings to go forward if he or she is aware of a
conflict of interest between a represented party and his or her lawyer.
See United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986). Under
this circumstance, the attorney for the government ordinarily should
move to disqualify the lawyer involved, if legal proceedings have
already commenced. If it is not feasible to move for disqualification
or otherwise challenge the representation, this paragraph allows an
attorney for the government to communicate with the represented
individual for the limited purpose of apprising the represented
individual of the perceived conflict. However, any substantive
discussion of the subject matter of the representation is permissible
only insofar as it is authorized by some other provision of this rule.
In order to ensure that this provision is used only in rare
circumstances, the rule requires prior authorization for such
communications from the Attorney General, the Deputy Attorney General,
the Associate Attorney General, an Assistant Attorney General or a
United States Attorney. The authorization should be in writing if at
all possible. Furthermore, before providing approval, the authorizing
officer must find: (1) a substantial likelihood of a conflict; and (2)
that it is not feasible to obtain a court order on the matter.
One organization commented that judicial approval, or at least
approval by a designated Assistant Attorney General (rather than by a
United States Attorney), should be required before an attorney for the
government may apprise a represented party or person of any perceived
conflict of interest. Another organization and an individual commented
that attorneys for the government should never be allowed to inform a
represented individual of a perceived conflict of interest, and,
instead, should be required to move to disqualify counsel and leave it
to the court to adjudicate any conflicts of interest. The Department
believes that there will be circumstances in which it will not be
feasible to obtain a judicial order challenging the representation
(especially prior to the filing of charges), or when the exigencies of
the situation may make it impracticable to obtain prior authorization
of a judicial officer or an Assistant Attorney General. In such
circumstances, and when a high-level Department official, such as a
United States Attorney, determines that there is a significant
likelihood of a conflict of interest between a represented individual
and his or her attorney, it is better that the represented person or
party be apprised of the potential conflict of interest than be left
uninformed. Accordingly, the Department has decided to leave this
paragraph unchanged in the final rule.
Paragraph (b): Attorney-Client Meetings
The attendance of an undercover agent or a cooperating witness at
lawful meetings of an individual and his or her attorneys is ordinarily
an improper intrusion into the attorney-client relationship. The courts
have recognized, however, that such attendance occasionally will be
required when the operative is invited to participate and his or her
refusal to do so would effectively reveal his or her connection to the
government. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 557 (1977);
United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985); United
States v. Mastroianni, 749 F.2d 900, 906 (1st Cir. 1984). As the First
Circuit has noted, a contrary rule ``would provide the defense with a
quick and easy alarm system to detect the presence of any informants,
simply by inviting all known associates of defendants to a supposed
defense strategy meeting.'' Mastroianni, 749 F.2d at 906.
Attendance at such meetings, however, intrudes into the attorney-
client relationship and impairs the right of the defendant to a fair
trial. Accordingly, this section provides that undercover agents or
cooperating witnesses may participate in such meetings, but only when
requested to do so by the defense and when reasonably necessary to
protect their safety or life or the confidentiality of an undercover
operation. See Weatherford, 429 U.S. at 557.
However, even when an undercover operative's attendance at such a
lawful meeting is authorized to protect his or her cover and safety,
any information acquired regarding lawful defense strategy or trial
preparation may not be communicated to government attorneys or
otherwise used to the substantial detriment of the represented party.
See Weatherford, 429 U.S. at 558; Ginsberg, 758 F.2d at 833;
Mastroianni, 749 F.2d at 906. As a safeguard, this rule provides that
such information should not be communicated to the attorneys for the
government or law enforcement agents who are participating in the trial
of the pending criminal charges.
When there is reasonable cause to believe that the purpose of the
meeting is not the lawful defense of the underlying charges, but the
commission of a new or additional crime (such as bribery of a witness
or subordination of perjury), attendance by informants or undercover
agents at attorney-client meetings is permissible pursuant to paragraph
77.6(e). The belief, however, must be based on reasonable cause, not
mere suspicion or conjecture. See Mastroianni, 749 F.2d at 906.
Furthermore, the prohibition against communication of lawful defense
strategy to the prosecution should be observed if, in fact, such
strategy is imparted to the informant or agent.
Government attorneys should give serious consideration to the
extreme sensitivity of permitting agent and informant attendance at
defense meetings. Agents and informants should be instructed to avoid
participating in such meetings, and to minimize their participation
when attendance is required, if it is possible to do so without
arousing suspicion. Agents or witnesses who attend defense meetings
should also be instructed to make every attempt to avoid taking any
role in the shaping of defense strategy or trial preparations.
Additionally, agents and informants should be instructed to avoid
imparting lawful defense strategy or trial preparation information to
attorneys for the government or to law enforcement agents who are
directly participating in the ongoing investigation or in the
prosecution of pending criminal charges.
Finally, this restriction applies only to law enforcement officials
and cooperating witnesses who are acting as ``agents for the
government'' at the time of the communication. If one of several co-
defendants who attended an attorney-client defense strategy meeting
later testifies for the government at trial, no violation will have
occurred as long as the co-defendant was not a government agent at the
time of the meeting. United States v. Brugman, 655 F.2d 540, 545-46
(4th Cir. 1981).
A Department component commented that an undercover agent's
attendance at a meeting at which legal strategy is not discussed does
not intrude on the attorney-client relationship; therefore, the
component proposed limiting this paragraph's prohibition against
government agents participating in an attorney-client meeting or
communication to situations where there is a ``reasonable basis'' to
believe that the meeting or communication will concern legal advice or
strategy. The Department believes that it is unwise and unworkable to
encourage government attorneys and undercover agents to guess whether
legal issues will come up in an attorney-client meeting or
communication. It would also be disruptive of the attorney-client
relationship for government attorneys and undercover agents to gather
the information that might make such a determination even remotely
reliable. Therefore, this paragraph has not been changed.
Section 77.10: Organizations and Employees
This section addresses the difficult issue of when a communication
with an employee or member of a represented organization should be
considered a communication with the organization itself. Important
interests depend on this determination. On the one hand, organizations
should not be shielded from effective criminal or civil law enforcement
prosecution simply by retaining counsel. It is not uncommon for federal
prosecutors to encounter attorneys who assert that they represent every
individual in a large corporation or organization. If such attorneys
were able to prevent government investigators from gaining informal
access to any employee of the organization by withholding consent,
information relevant to claims against the organization might never
come to light because such information is often in the exclusive
possession of the organization and its employees. See, e.g., Suggs v.
Capital Cities/ABC Inc., 54 Empl. Prac. Dec. (CCH) 40,195 at 63,910
(S.D.N.Y. Apr. 24, 1990). On the other hand, organizations are entitled
to the effective assistance of counsel, and the relationship between an
organization and its counsel deserves respect.
The Department believes that this section, and particularly the
definition of ``controlling individual'' in paragraph (a) of this
section, strikes an appropriate balance, one that ensures government
attorneys the ability to enforce federal law, while preserving the
opportunity for corporations and other organizations to secure
effective assistance of counsel.
Paragraph (a): Communications with current employees;
organizational representation.
This paragraph states that a communication with a current employee
of an organizational party or person should be treated as a
communication with the organization for purposes of this part only if
the employee is a ``controlling individual.'' If a communication with a
current employee is properly characterized under this regulation as a
communication with a represented organization (that is, if the
communication is with a controlling individual), then that
communication is subject generally to the same limitations that would
apply if the communication were with a represented person or
represented party.
In accord with the basic structure of this regulation, which
distinguishes between represented parties and represented persons, this
paragraph effectively provides that when an organization is a
represented party, an attorney for the government shall not
communicate, or cause another to communicate, with any controlling
individual of the organization without the consent of the
organization's attorney, subject to the exceptions enumerated in
Sec. 77.6. In contrast, when an organization qualifies as a represented
person, an attorney for the government may communicate, or cause
another to communicate, with any controlling individual, provided the
communication does not violate the provisions of Secs. 77.8 or 77.9.
The definition of ``controlling individual'' is intended to
encompass those individuals who typically are part of the
organization's control group. A controlling individual under this
definition must: (1) be a current employee or member of the
organization; (2) hold a high-level position with the organization; (3)
participate ``as a decision maker in the determination of the
organization's legal position in the proceeding or investigation of the
subject matter;'' and (4) be known by the government to be engaged in
such activities. This definition attempts to identify those limited
number of individuals affiliated with the organization who actually are
involved in determining the organization's position with regard to the
legal proceeding or investigation.
One individual and one organization questioned limiting the class
of employees who should be considered ``controlling individuals'' for
purposes of this subsection to those who participate in framing the
organization's legal position in the matter. They argued that the
proposed ``controlling individual'' test authorizes contacts with
employees who, while not directing the organization's counsel,
nonetheless have extensive authority to act on behalf of the
organization. The underlying concern of these comments appears to be
that this paragraph, as proposed, authorizes contacts with many
employees who are likely to possess information relevant to claims
asserted against the corporation and who have the capacity to make
statements that a court will deem admissible at trial as evidentiary
admissions against the corporation. This is certainly true. However,
the Department believes that its anti-contact rule should not be
designed with the goal of protecting corporations from disclosure of
prejudicial facts. See, e.g., Action Air Freight v. Pilot Air Freight,
769 F. Supp. 899, 903 (E.D. Pa. 1991) (anti-contact rule ``should not
necessarily chill the flow of harmful information''); Hanntz v. Shiley,
Inc., 766 F. Supp. 258, 267 (D.N.J. 1991) (``the policies of Rule 4.2
do not justify a wholesale restriction on discovery of factual
information, damaging or not'').
Anti-contact rules such as DR 7-104 and Model Rule 4.2 are intended
to protect the attorney-client relationship from unnecessary
interference and to protect represented parties from overreaching by
opposing counsel. Damage to the attorney-client relationship inheres
particularly in communications with high-level corporate employees who
have contact with the corporation's attorneys in the course of making
ultimate decisions regarding choice of counsel, implementing counsel's
advice, and determining settlement and other litigation strategies.
Therefore, communications with those high-level individuals affiliated
with or employed by an organization who are responsible for employing
and directing the organization's counsel and for determining legal
positions taken by the organization are the type of communications
prohibited by DR 7-104.
Accordingly, this paragraph defines ``controlling individual''
consistently with the principles underlying the disciplinary rules on
ex parte contacts. The Department also believes that the alternative
approaches urged by commenters would impose unacceptable constraints on
federal law enforcement. Therefore, this paragraph has not been
changed.
Paragraph (b): Communications with former employees; organizational
representation.
This paragraph authorizes communications with former employees of
represented organizations. Because former employees do not direct the
affairs of the organization and therefore cannot be considered members
of the ``control group'' or any other controlling entity of an
organization, communications with them are not considered
communications with the organization for purposes of the rule. This
reasoning is consistent with the conclusion of the majority of federal
courts that have held that DR 7-104(A)(1) does not bar communications
with former employees of a represented corporate party. See, e.g.,
Hanntz v. Shiley, Inc., 766 F. Supp. 258, 267 & n.8 (D.N.J. 1991);
Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. Supp. 899,
904 (E.D. Pa. 1991); Shearson Lehman Bros., Inc. v. Wasatch Bank, 139
F.R.D. 412, 417-18 (D. Utah 1991); Sherrod v. Furniture Center, 769 F.
Supp. 1021, 1022 (W.D. Tenn. 1991); Dubois v. Gradco Systems, Inc., 136
F.R.D. 341, 345 n.4 (D. Conn. 1991); Polycast Technology Corp. v.
Uniroyal, Inc., 129 F.R.D. 621, 628 (S.D.N.Y. 1990). See also ABA Comm.
on Ethics and Professional Responsibility, Formal Op. 359 (1991)
(``Accordingly, it is the opinion of the Committee that a lawyer
representing a client in a matter adverse to a corporate party that is
represented by another lawyer may, without violating Model Rule 4.2,
communicate about the subject of the representation with an
unrepresented former employee of the corporate party without the
consent of the corporation's lawyer.''). But see PPG Industries, Inc.
v. BASF Corp., 134 F.R.D. 118, 121 (W.D. Pa. 1990); Public Serv. Elec.
& Gas v. Associated Elec. & Gas, 745 F. Supp. 1037, 1042 (D.N.J. 1990).
No specific comments were received regarding this paragraph, and it
has not been changed.
Paragraph (c): Communications With Former or Current Employees;
Individual Representation
This paragraph provides that if a former or current employee or a
member of an organization retains his or her own counsel, the
government shall provide the same protection to him or her that would
be provided under this part to any other represented person or
represented party. Communications with that individual are subject to
the limitations set forth in this part. Although this paragraph
provides the general rule for such communications, paragraph (d)
addresses the specific situation in which a controlling individual of a
represented organization retains separate counsel.
This paragraph also provides that the government will not accept,
for purposes of this rule, blanket claims by counsel that he or she
represents all or a large number of employees of the organization. It
is important to note that this provision is only relevant when the
attorney for the government would be prohibited by some other provision
of this regulation from contacting an individual falling under the
broad claims of representation under question. For example, an attorney
for the government may contact a low-level employee of a corporation,
without consent of that employee's counsel or the corporation's
counsel, regarding a matter for which the corporation has already been
indicted as part of an undercover or overt factual investigation, if
that individual has not been arrested or named as a defendant in a
related criminal or civil law enforcement proceeding. Therefore, the
fact that an attorney has stated that he or she represents that
individual will have no bearing on whether the communication is proper.
However, if a particular communication with an individual employee
included in such a claim of representation would be improper under
these rules if he or she were in fact represented by counsel (for
example, communications to negotiate a plea agreement), then this
paragraph provides that a government attorney must first inquire
whether the employee is in fact represented before undertaking
substantive communications with the employee. As part of this inquiry,
the government attorney is not required to disclose to the employee the
fact that counsel has asserted that he or she represents the employee.
If the employee indicates that he or she is not represented by counsel,
it is proper for the government attorney to treat the employee as
unrepresented. If the employee indicates that he or she is represented
by counsel with regard to the relevant subject matter, the attorney for
the government shall treat that employee as a represented person or
represented party, and any further communications with that individual
shall be governed by this regulation.
No specific comments were received regarding this paragraph, and it
has not been changed.
Paragraph (d): Communications with separately represented
controlling individuals.
This paragraph applies only when a controlling individual of a
represented organizational party has retained separate counsel. In such
circumstances, a government attorney may not communicate with the
controlling individual without the consent of that individual's
separate counsel unless the communication satisfies one of the
exceptions contained in Sec. Sec. 77.6 or 77.9 of this part. The
paragraph also allows such communications if the individual does not
qualify as a represented party, initiates the communication, and waives
the presence of counsel. Thus, the same rules apply to contacts with
controlling individuals of represented organizational parties who
retain separate counsel as apply to controlling individuals of
represented organizational parties who are not separately represented.
No specific comments were received regarding this paragraph, and it
has not been changed.
Paragraph (e): Initiation of communication by unrepresented
controlling individuals.
This paragraph addresses a relatively narrow circumstance: when a
controlling individual who is not individually represented by counsel
initiates a communication with the government outside the presence of
counsel for the organization. An attorney for the government may
participate in such communications if: (1) the controlling individual
indicates that he or she is speaking exclusively in his or her personal
capacity and not as a representative of the organizational party; and
(2) he or she indicates that the waiver of counsel is voluntary,
knowing, and informed and, if willing, signs a statement to that
effect. The fact that the controlling individual indicates that he or
she is speaking in his or her personal capacity does not mean, however,
that incriminating testimony received from the controlling individual
cannot be used against the represented organization.
If the controlling individual is also a named defendant in a civil
enforcement proceeding or has been arrested or charged in a criminal
action, the requirements set forth in paragraph 77.6(c) must be
satisfied before any substantive communications are made.
No specific comments were received regarding this paragraph, and it
has not been changed.
Paragraph (f): Multiple representation.
This paragraph makes clear that these rules should not be construed
as altering existing legal and ethical rules regarding the propriety of
multiple representation.
No specific comments were received regarding this paragraph, and it
has not been changed.
Section 77.11: Enforcement of This Part
Paragraph (a): Exclusive enforcement by Attorney General.
In order to ensure consistency and uniformity in the
interpretation of the final rule, this paragraph provides that the
Attorney General shall have exclusive authority to enforce these
regulations. Thus, state courts, state disciplinary boards, and federal
courts may not impose sanctions on or otherwise regulate a Department
attorney engaged in federal law enforcement activities for violations
of an anti-contact rule or subject a Department attorney to regulation
under state or local federal court rules governing communications with
represented parties, except as provided in Sec. 77.12. This paragraph
further provides the framework for investigating allegations that a
Department attorney has violated this regulation. It provides that the
Department's Office of Professional Responsibility (``OPR'') shall have
sole original jurisdiction to investigate such allegations and that
violations will be treated as matters of attorney discipline. See 28
CFR Sec. 0.39 (establishing and defining duties of OPR). It also makes
clear that the Attorney General's determination as to whether a
violation has occurred shall be final and conclusive except to the
extent that the Department attorney enjoys a right of review provided
by other laws.
One individual and one organization objected to placing
investigative responsibility in OPR, suggesting that OPR had, in the
past, been reluctant to share the results of its investigations. The
Department recently adopted a policy under which the results of OPR
investigations are disclosed to the public if, inter alia, there is a
finding of intentional and knowing professional misconduct by a
Department attorney in the course of an investigation or litigation and
the public interest in disclosure outweighs the privacy interest of the
attorney and any law enforcement interest. Therefore, there will be
meaningful disclosure of findings of violations of these rules.
Moreover, allegations of professional misconduct by Department
attorneys concerning violations of these rules may be reported directly
to OPR by any person. Complaints filed by members of the public will be
fully and thoroughly reviewed by OPR.
Therefore, this paragraph has not been changed.
Paragraph (b): No private remedies.
This paragraph provides that the rule is not intended to and does
not create any substantive rights for any person other than an attorney
for the government. In particular, a violation of the regulation will
not provide a basis for the dismissal of civil or criminal charges or
for the suppression of evidence that is otherwise admissible. This
provision accords with existing law. Traditionally, matters relating to
communications with represented persons have been treated as matters of
attorney discipline without granting substantive rights to defendants
or any other persons. See, e.g., ABA Code of Professional
Responsibility, Preliminary Statement; ABA Model Rules of Professional
Conduct, Scope. Of course, when the communication with a represented
person or represented party violates the Constitution, the federal
courts retain the power to fashion appropriate remedies.
No specific comments were received regarding this paragraph, and it
has not been changed.
Section 77.12: Relationship to State and Local Regulation
Both DR 7-104 and Model Rule 4.2 provide that communications that
are ``authorized by law'' are not prohibited by the rule. Virtually all
the states have adopted some version of DR 7-104 or Model Rule 4.2 that
includes an ``authorized by law'' exception. As discussed in the
``General Comments'' section, these rules, as substantive regulations
duly promulgated by the Attorney General pursuant to statutory
authority, have the force and effect of law. Accordingly,
communications with represented persons that are undertaken pursuant to
these rules should be considered ``authorized by law'' within the
meaning of rules adopted by the various states. Such communications
should therefore be consistent with state rules wherever state bar
authorities have adopted a rule containing the ``authorized by law''
exception. Thus, no conflict will arise between state and federal law
in those jurisdictions with regard to communications with represented
persons. Similarly, no conflict should arise between this regulation
and the federal district court rules that have adopted an anti-contact
rule containing the ``authorized by law'' exception. This regulation
therefore need not give rise to any tension with any provision of state
or federal law.
The Department nonetheless recognizes the likelihood that
government attorneys' conduct with respect to contact with represented
persons may continue to be viewed by some as inconsistent with state or
local district court rules. To effectuate fully the provisions of this
regulation, it therefore is important that the regulation include a
plain statement by the Department of its intention to preempt and
supersede regulation by state courts, state disciplinary authorities,
or federal district courts of ex parte communications by government
attorneys in civil or criminal law enforcement investigations or
proceedings. See Hillsborough County, Fla. v. Automated Med. Labs, 471
U.S. 707, 718 (1985) (``because agencies normally express problems in a
detailed manner and can speak through a variety of means, including
regulations, preambles, interpretative statements and responses to
comments, we can expect that they will make their intention clear if
they intend for their regulations to be exclusive'').
There is no indication from any of the comments received of any
confusion regarding the breadth of the Department's intention to
displace state and federal law; on the contrary, the comments in this
area generally both fully grasped and took issue with the Department's
stated intention to occupy the field. Given the integral importance of
the exclusive enforcement authority to the overall regulatory scheme,
however, some revisions have been made to this section to leave no
doubt that it is the express intention of these rules to completely
preempt and supersede the operation of state and local laws or rules as
they relate to contacts by government attorneys in civil or criminal
law enforcement investigations or proceedings. Such occupation of the
field is necessary to ensure that government attorneys' conduct
respecting contacts with represented persons be subject to uniform
regulation and predictable standards, as against potential variations
in individual state and local rules and in interpretations of those
rules.
Accordingly, this regulation completely preempts state or federal
court regulation of ex parte contacts in law enforcement matters by
government attorneys and those acting at their direction, with one
important exception. If the Attorney General finds that a Department
attorney has committed a ``willful violation'' of any of these rules,
preemption will not apply, and that attorney will be subject to
disciplinary proceedings both by the Department and by the appropriate
state disciplinary authorities.
Several commenters argued that it is inappropriate to preclude an
otherwise appropriate state or federal court disciplinary proceeding
when the Department's own rules have been violated. The Department
respectfully disagrees. A primary purpose for this regulation is to
remove the substantial burden on federal law enforcement caused by
uncertainty as to what constitutes appropriate conduct by Department
attorneys. This uncertainty would not be removed were it left to the
various state and federal district courts to interpret these rules and
determine on their own whether they had been violated in any particular
case. For this reason, the Department believes that it is necessary
that it retain exclusive authority to determine whether one of its
lawyers has breached these rules, with the important proviso that, when
there is a finding of a willful violation, a state disciplinary
authority may also impose sanctions.
One United States Attorney's Office commented that the meaning of a
``willful violation'' had not been clearly explained in the previous
commentary. In response to this comment, the Department here clarifies
that a ``willful violation'' means an intentional and deliberate
violation of these rules, as determined by the Attorney General.
United States Attorneys' Manual
In addition to the promulgation of the rules discussed above, the
Department intends to add several new provisions to the United States
Attorneys' Manual to provide additional guidance to Department
attorneys when they deal with represented individuals during criminal
or civil law enforcement investigations and proceedings.
The Department has deliberately chosen to include certain baseline
restrictions in the regulation and impose broader restrictions through
provisions in the Manual. In the process of determining what the
appropriate Departmental policy should be, it became clear that any
regulation would have to apply to a variety of circumstances,
including: white collar and organized crime investigations, complex
conspiracy investigations, individuals whose counsel are paid by a
third party, and individuals fearful of their counsel for various
reasons. Accordingly, the Department determined that the regulation
should be broad in scope and should provide unambiguous guidance that
would not adversely affect federal law enforcement efforts. Thus, part
77 distinguishes between the investigative period (before indictment,
arrest, or the filing of a complaint) and the prosecutive period (after
arrest or the commencement of formal proceedings). It also
distinguishes between communications that are part of a factual
investigation and communications that occur during negotiations of plea
agreements, settlements, and similar legal arrangements.
The planned Manual provisions will require that government
attorneys consider the principles underlying the basic prohibitions in
a much wider variety of circumstances. The Department expects all
Department attorneys involved in criminal or civil law enforcement
proceedings to adhere to all applicable provisions in the Manual.
Failure to do so will result in appropriate departmental action.
The planned changes to the Manual were included in the earlier
publications simply for reference and were not subject to the
requirements of notice and comment that applied to the provisions in
the proposed regulation itself. The Department nonetheless received
several comments regarding the draft Manual provisions. The Department
has carefully considered those comments and has decided that it is
appropriate (though not required) to respond to them briefly in this
commentary. However, none of the comments received has prompted the
Department to conclude that it should alter the planned Manual
provisions. The Department anticipates that the Manual provisions will
be substantially similar to the draft published in March 1994. The
Department envisions publishing the Manual provisions soon and
integrating them in the Manual with the final rules adopted here.
Comments were directed mainly to a draft Manual provision that
would prohibit a government attorney from communicating overtly about
the subject matter of a representation with a person who the government
attorney knows is a ``target'' of a federal criminal or civil
enforcement investigation and who the government attorney knows is
represented by counsel, without the consent of the target's attorney.
(The provisions, as published in March 1994, would also provide several
exceptions to this general prohibition against overt contacts with
targets, including the following: when the communication is initiated
by the target; when the communication occurs at the time of arrest and
the represented person has waived his or her Miranda rights; when the
government attorney believes the contact is necessary to protect
against a risk to human life or safety; or when a senior Department
official determines that exigent circumstances exist, making the
communication necessary for effective law enforcement).
Two United States Attorney's Offices urged reconsideration of the
guideline generally prohibiting Department attorneys from directly
communicating with known ``targets.'' These commenters expressed a
number of concerns about the ``target'' provision--most significantly,
that the determination of ``target'' status would be subjective and
variable and that the proposed limitation on overt contacts with
represented targets would interfere with the investigative process.
The Department does not agree that the term ``target'' would make
application of this planned restriction particularly troublesome. While
determinations of ``target'' status surely are not scientifically
precise, neither are a range of other similar determinations (e.g.,
``probable cause'' determinations) that prosecutors are expected
routinely to make. In its enforcement of the planned provision, the
Department intends to give substantial deference to a federal
attorney's good faith judgment regarding the likelihood that a
particular person will ultimately become a defendant. Even if the
attorney for the government believes that an individual probably will
be named as a defendant, that individual would not be considered a
target until the government has actually obtained substantial evidence
linking that individual to the commission of a crime or to unlawful
conduct. The government attorney's uncorroborated belief that an
individual will ultimately be named as a defendant would not be enough.
Thus, an individual will not be considered a target under the Manual
guidelines until both the attorney for the government believes that he
or she will probably be named as a defendant and substantial evidence
has been obtained.
The Department also does not believe that the contemplated
restriction on overt communications with represented targets would
significantly impede legitimate law enforcement activities. It is true
that in certain types of cases and under certain exceptional
circumstances, target interviews may be necessary for effective
investigation; for that reason, the planned Manual provisions would
allow that in such situations target interviews may be approved by a
high-ranking Department official. However, as a general matter and in
more routine circumstances, overt communications with targets have a
more limited value to the investigative process, which is outweighed by
the risk that they will interfere with the attorney-client relationship
and place undue pressure on the target. Because an individual who is a
target of a federal investigation is typically in a clearly adversarial
relationship with the federal government, the Department believes that
the principles underlying DR 7-104 and Rule 4.2 are implicated and that
the planned restrictions on overt communications with represented
targets are appropriate.
Certifications
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant economic impact on a
substantial number of small entities. This rule was not reviewed by the
Office of Management and Budget pursuant to Executive Order No. 12866.
List of Subjects in 28 CFR Part 77
Government employees, Investigations, Law enforcement, Lawyers.
Accordingly, chapter I of title 28 of the Code of Federal
Regulations is amended by adding a new part 77 to read as follows:
PART 77--COMMUNICATIONS WITH REPRESENTED PERSONS
Sec.
77.1 Purpose and authority.
77.2 Definitions.
77.3 Represented party; represented person.
77.4 Constitutional and other limitations.
77.5 General rule for civil and criminal enforcement; represented
parties.
77.6 Exceptions; represented parties.
77.7 Represented persons; investigations.
77.8 Represented persons and represented parties; plea negotiations
and other specified legal agreements.
77.9 Represented persons and represented parties; respect for
attorney-client relationships.
77.10 Organizations and employees.
77.11 Enforcement of this part.
77.12 Relationship to state and local regulation.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515(a), 516, 519,
533, 547.
Sec. 77.1 Purpose and authority.
(a) The Department of Justice is committed to ensuring that its
attorneys perform their duties in accordance with the highest ethical
standards. The purpose of this part is to provide a comprehensive,
clear, and uniform set of rules governing the circumstances under which
Department of Justice attorneys may communicate or cause others to
communicate with persons known to be represented by counsel in the
course of law enforcement investigations and proceedings. This part
ensures the Department's ability to enforce federal law effectively and
ethically, consistent with the principles underlying Rule 4.2 of the
American Bar Association Model Rules of Professional Conduct, while
eliminating the uncertainty and confusion arising from the variety of
interpretations given to that rule and analogous rules by state and
federal courts and by bar association organizations and committees.
(Copies of the Bar rules are on file in most law libraries, and through
on-line legal research services).
(b) This part is issued under the authority of the Attorney General
to prescribe regulations for the government of the Department of
Justice, the conduct of its employees, and the performance of its
business, pursuant to 5 U.S.C. 301; to direct officers of the
Department of Justice to secure evidence and conduct litigation,
pursuant to 28 U.S.C. 516; to direct officers of the Department to
conduct grand jury proceedings and other civil and criminal legal
proceedings, pursuant to 28 U.S.C. 515(a); to supervise litigation and
to direct Department officers in the discharge of their duties,
pursuant to 28 U.S.C. 519; and otherwise to direct Department officers
to detect and prosecute crimes, to prosecute offenses against the
United States, to prosecute civil actions, suits, and proceedings in
which the United States is concerned, and to perform such other
functions in an appropriate and ethical manner as may be provided by
law, pursuant to 28 U.S.C. 509, 510, 533, and 547.
Sec. 77.2 Definitions.
As used in this part, the following terms shall have the following
meanings, unless the context indicates otherwise:
(a) Attorney for the government means the Attorney General; the
Deputy Attorney General; the Associate Attorney General; the Solicitor
General; the Assistant Attorneys General for, and any attorney employed
in, the Antitrust Division, Civil Division, Civil Rights Division,
Criminal Division, Environment and Natural Resources Division, or Tax
Division; the Chief Counsel of the DEA and any attorney employed in
that office, the General Counsel of the FBI and any attorney employed
in that office or in the Legal Counsel Division of the FBI, and, in
addition, any attorney employed in, or head of, any other legal office
in a Department of Justice agency; any United States Attorney; any
Assistant United States Attorney; any Special Assistant to the Attorney
General or Special Attorney duly appointed pursuant to 28 U.S.C. 515;
any Special Assistant United States Attorney duly appointed pursuant to
28 U.S.C. 543 who is authorized to conduct criminal or civil law
enforcement investigations or proceedings on behalf of the United
States; or any other attorney employed by the Department of Justice who
is authorized to conduct criminal or civil law enforcement proceedings
on behalf of the United States. The term attorney for the government
does not include any attorney employed by the Department of Justice as
an investigator or other law enforcement agent who is not authorized to
represent the United States in criminal or civil law enforcement
litigation or to supervise such proceedings.
(b) Civil law enforcement investigation means an investigation of
possible civil violations of, or claims under, federal law that may
form the basis for a civil law enforcement proceeding.
(c) (1) Civil law enforcement proceeding means a civil action or
proceeding before any court or other tribunal brought by the Department
of Justice under the police or regulatory powers of the United States
to enforce federal laws, including, but not limited to, civil actions
or proceedings brought to enforce the laws relating to:
(i) Antitrust;
(ii) Banking and financial institution regulation;
(iii) Bribery, kickbacks, and corruption;
(iv) Civil rights;
(v) Consumer protection;
(vi) Environment and natural resource protection;
(vii) False claims against the United States;
(viii) Food, drugs, and cosmetics regulation;
(ix) Forfeiture of property;
(x) Fraud;
(xi) Internal revenue;
(xii) Occupational safety and health;
(xiii) Racketeering; or
(xiv) Money-laundering.
(2) The term civil law enforcement proceeding shall not include
proceedings related to the enforcement of an administrative subpoena or
summons or a civil investigative demand. An action or proceeding shall
be considered ``brought by the United States'' only if it involves a
claim asserted by the Department of Justice on behalf of the United
States, whether the claim is asserted by complaint, counterclaim,
cross-claim, or otherwise.
(d) Cooperating witness or individual means any person, other than
a law enforcement agent, who is acting to assist the government in an
undercover or confidential capacity.
(e) Employee means any employee, officer, director, partner,
member, or trustee.
(f) Organization means any corporation, partnership, association,
joint-stock company, union, trust, pension fund, unincorporated
association, state or local government or political subdivision
thereof, or non-profit organization.
(g) Person means any individual or organization.
(h) Undercover investigation means any investigation undertaken in
good faith to fulfill law enforcement objectives, in which a person
communicates with a federal, state or local law enforcement agent or a
cooperating witness or individual whose identity as an official of the
government or a person acting at the behest thereof is concealed or is
intended to be concealed.
Sec. 77.3 Represented party; represented person.
(a) A person shall be considered a ``represented party'' within the
meaning of this part only if all three of the following circumstances
exist:
(1) The person has retained counsel or accepted counsel by
appointment or otherwise;
(2) The representation is ongoing and concerns the subject matter
in question;
(3) The person has been arrested or charged in a federal criminal
case or is a defendant in a civil law enforcement proceeding concerning
the subject matter of the representation.
(b) A person shall be considered a ``represented person'' within
the meaning of this part if circumstances set forth in paragraphs (a)
(1) and (2) of this section exist, but the circumstance set forth in
paragraph (a)(3) does not exist.
Sec. 77.4 Constitutional and other limitations.
Notwithstanding any other provision of this part, any communication
that is prohibited by the Sixth Amendment right to counsel, by any
other provision of the United States Constitution, by any federal
statute, by the Federal Rules of Criminal Procedure (18 U.S.C. App.) or
by the Federal Rules of Civil Procedure (28 U.S.C. App.) shall be
likewise prohibited under this part.
Sec. 77.5 General rule for civil and criminal enforcement; represented
parties.
Except as provided in this part or as otherwise authorized by law,
an attorney for the government may not communicate, or cause another to
communicate, with a represented party who the attorney for the
government knows is represented by an attorney concerning the subject
matter of the representation without the consent of the lawyer
representing such party.
Sec. 77.6 Exceptions; represented parties.
An attorney for the government may communicate, or cause another to
communicate, with a represented party without the consent of the lawyer
representing such party concerning the subject matter of the
representation if one or more of the following circumstances exist:
(a) Determination if representation exists. The communication is to
determine if the person is in fact represented by counsel concerning
the subject matter of the investigation or proceeding.
(b) Discovery or judicial or administrative process. The
communication is made pursuant to discovery procedures or judicial or
administrative process in accordance with the orders or rules of the
court or other tribunal where the matter is pending, including, but not
limited to testimony before a grand jury, the taking of a deposition,
or the service of a grand jury or trial subpoena, summons and
complaint, notice of deposition, administrative summons or subpoena or
civil investigative demand.
(c) Initiation of communication by represented party. The
represented party initiates the communication directly with the
attorney for the government or through an intermediary and:
(1) Prior to the commencement of substantive discussions on the
subject matter of the representation and after being advised by the
attorney for the government of the client's right to speak through his
or her attorney and/or to have the client's attorney present for the
communication, manifests that his or her waiver of counsel for the
communication is voluntary, knowing and informed and, if willing to do
so, signs a written statement to this effect; and
(2) A federal district judge, magistrate judge or other court of
competent jurisdiction has concluded that the represented party has:
(i) Waived the presence of counsel and that such waiver is
voluntary, knowing, and informed; or
(ii) Obtained substitute counsel or has received substitute counsel
by court appointment, and substitute counsel has consented to the
communication.
(d) Waivers at the time of arrest. The communication is made at the
time of the arrest of the represented party and he or she is advised of
his or her rights under Miranda v. Arizona, 384 U.S. 436 (1966), and
voluntarily and knowingly waives them.
(e) Investigation of additional, different or ongoing crimes or
civil violations. The communication is made in the course of an
investigation, whether undercover or overt, of additional, different or
ongoing criminal activity or other unlawful conduct. Such additional,
different or ongoing criminal activity or other unlawful conduct may
include, but is not limited to, the following:
(1) Additional, different or ongoing criminal activity or other
unlawful conduct that is separate from or committed after the criminal
activity for which the represented party has been arrested or charged
or for which the represented party is a defendant in a civil law
enforcement proceeding; or
(2) Criminal activity that is intended to impede or evade the
administration of justice including, but not limited to, the
administration of justice in the proceeding in which the represented
party is a defendant, such as obstruction of justice, subornation of
perjury, jury tampering, murder, assault, or intimidation of witnesses,
bail jumping, or unlawful flight to avoid prosecution.
(f) Threat to safety or life. The attorney for the government in
good faith believes that there may be a threat to the safety or life of
any person; the purpose of the communication is to obtain or provide
information to protect against the risk of injury or death; and the
attorney for the government in good faith believes that the
communication is necessary to protect against such risk.
Sec. 77.7 Represented persons; investigations.
Except as otherwise provided in this part, an attorney for the
government may communicate, or cause another to communicate, with a
represented person in the process of conducting an investigation,
including, but not limited to, an undercover investigation.
Sec. 77.8 Represented persons and represented parties; plea
negotiations and other legal agreements.
An attorney for the government may not initiate or engage in
negotiations of a plea agreement, settlement, statutory or non-
statutory immunity agreement, or other disposition of actual or
potential criminal charges or civil enforcement claims, or sentences or
penalties with a represented person or represented party who the
attorney for the government knows is represented by an attorney without
the consent of the attorney representing such person or party;
provided, however, that this restriction will not apply if the
communication satisfies Sec. 77.6(c).
Sec. 77.9 Represented persons and represented parties; respect for
attorney-client relationships.
When an attorney for the government communicates, or causes a law
enforcement agent or cooperating witness to communicate, with a
represented person or represented party pursuant to any provision of
these regulations without the consent of counsel, the following
restrictions must be observed:
(a) Deference to attorney-client relationship. (1) An attorney for
the government, or anyone acting at his or her direction may not, when
communicating with a represented person or represented party:
(i) Inquire about information regarding lawful defense strategy or
legal arguments of counsel;
(ii) Disparage counsel for a represented person or represented
party or otherwise seek to induce the person to forego representation
or to disregard the advice of the person's attorney; or
(iii) Otherwise improperly seek to disrupt the relationship between
the represented person or represented party and counsel.
(2) Notwithstanding paragraph (a)(1) of this section, if the
Attorney General, the Deputy Attorney General, the Associate Attorney
General, an Assistant Attorney General or a United States Attorney
finds that there is a substantial likelihood that there exists a
significant conflict of interest between a represented person or party
and his or her attorney; and that it is not feasible to obtain a
judicial order challenging the representation, then an attorney for the
government with prior written authorization from an official identified
above may apprise the person of the nature of the perceived conflict of
interest, unless the exigencies of the situation permit only prior oral
authorization, in which case such oral authorization shall be
memorialized in writing as soon thereafter as possible.
(b) Attorney-client meetings. An attorney for the government may
not direct or cause an undercover law enforcement agent or cooperating
witness to attend or participate in lawful attorney-client meetings or
communications, except when the agent or witness is requested to do so
by the represented person or party, defense counsel, or another person
affiliated or associated with the defense, and when reasonably
necessary to protect the safety of the agent or witness or the
confidentiality of an undercover operation. If the agent or witness
attends or participates in such meetings, any information regarding
lawful defense strategy or trial preparation imparted to the agent or
witness shall not be communicated to attorneys for the government or to
law enforcement agents who are directly participating in the ongoing
investigation or in the prosecution of pending criminal charges, or
used in any other way to the substantial detriment of the client.
Sec. 77.10 Organizations and employees.
This section applies when the communication involves a former or
current employee of an organization that qualifies as a represented
party or represented person, and the subject matter of the
communication relates to the business or other affairs of the
organization.
(a) Communications with current employees; organizational
representation. A communication with a current employee of an
organization that qualifies as a represented party or represented
person shall be considered to be a communication with the organization
for purposes of this part only if the employee is a controlling
individual. A ``controlling individual'' is a current high level
employee who is known by the government to be participating as a
decision maker in the determination of the organization's legal
position in the proceeding or investigation of the subject matter.
(b) Communications with former employees; organizational
representation. A communication with a former employee of an
organization that is represented by counsel shall not be considered to
be a communication with the organization for purposes of this part.
(c) Communications with former or current employees; individual
representation. A communication with a former or current employee of an
organization who is individually represented by counsel may occur only
to the extent otherwise permitted by this part. However, a claim by an
attorney that he or she represents all or a large number of individual
current and/or former employees of an organization does not suffice to
establish that those employees are represented persons or represented
parties under this part. In such circumstances, prior to engaging in
communications that would be prohibited under this part as a result of
the individual representation, the attorney for the government shall
communicate with the individual current or former employee to determine
if in fact that employee is represented by counsel concerning the
subject matter of the investigation or proceeding.
(d) Communications with separately represented controlling
individuals. When this part would preclude discussions with a
controlling individual as defined in Sec. 77.10(a) and the controlling
individual has retained separate counsel on the relevant subject
matter, an attorney for the government may communicate with such
individual in the following circumstances:
(1) If the controlling individual's separate counsel consents;
(2) If the communication falls within one of the exceptions set
forth in Secs. 77.6 or 77.9; or
(3) In the case in which the individual does not qualify as a
represented party, if the individual initiates the communication and
states that he or she is communicating exclusively in his or her
personal capacity and not on behalf of the represented organizational
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) Initiation of communication 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 reviewed 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
Office of Professional Responsibility shall review any complaint
alleging a violation of this part made by a state or federal judge, bar
disciplinary board, official, or ethics committee, or by any other
person or entity. 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. In addition, this part is intended
to preempt and supersede the application of state laws and rules and
local federal court 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 or civil law enforcement investigations or
proceedings; it is designed to preempt the entire field of rules
concerning such contacts. When the Attorney General finds a willful
violation of any of the rules in this part, however, sanctions for the
conduct that constituted a willful violation of this part may be
applied, if warranted, by the appropriate state disciplinary authority.
Dated: July 30, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-19077 Filed 8-3-94; 8:45 am]
BILLING CODE 4410-01-P
