By Anna Marie Kukec
A new federal ethics law and a national model rule regarding communication with represented individuals have split the legal community.Bar associations and the U.S. Department of Justice continue to debate the new Citizens Protection Act--also known as the McDade provision after its chief sponsor Rep. Joseph McDade (R-Pa.). It became law in April and confirms that federal prosecutors are on the same level as all other lawyers who must abide by state laws and ethics rules governing conduct. It restates that DOJ is subject to all state ethics rules, including the American Bar Association Model Rule 4.2, which deals with lawyer conduct and communication with represented individuals.
Several bars and other legal organizations support the new law. In addition, the U.S. Chamber of Commerce and corporations including the National Association of Manufacturers, Sara Lee Corporation, Caterpillar, General Motors Corporation and Monsanto also support it because it prohibits federal prosecutors from ex parte contact with represented corporate employees.
On the other hand, DOJ officials insist that multi-state criminal investigations and undercover techniques (including court-authorized electronic surveillance and wiretapping) could be hampered because federal lawyers must abide by various state rules that are based on the ABA model rule. Law enforcement organizations, civic groups, six former attorneys general and victim rights groups support the DOJ’s position.
The battle began in 1989 when then Attorney General Richard Thornburgh issued a memo that authorized federal prosecutors to contact persons who were represented by counsel without informing that counsel. The memo indicated that federal prosecutors were exempt from Model Rule 4.2 as adopted by the states. In 1994, Attorney General Janet Reno issued the regulation based on that memo, in opposition to ABA Model Rule 4.2.
In 1997, McDade insisted that all lawyers abide by state rules and laws, and his legislation wound its way through the House and Senate. It passed in October 1998 as part of the Omnibus Consolidated and Emergency Supplemental Appropriations bill for fiscal 1999, with an effective date of April 19, 1999.
However, last January, Sen. Orrin Hatch (R-Utah) introduced legislation (S250) to repeal the measure, which is still pending before his Senate Judiciary Committee. In late April, Sen. Patrick Leahy (D-Vermont) put forward S855, which clarifies that DOJ cannot exempt itself from the law. It also asks the U.S. Judicial Conference to study the new law and submit a report to the U.S. Supreme Court within a year.
Strong positions
While the two sides are working together on the issue, there continue to be strong beliefs about the law.
"(The law) is necessary because, in recent years, the U.S. Department of Justice has sought to exempt its lawyers from the state supreme courts’ independent supervision. This would make these lawyers the only lawyers in America not subject to ethical regulation by a state court," says ABA President Philip Anderson in a Feb. 22 letter to senators.
State ethic rules rarely present a problem to federal prosecutors, Anderson adds. "The courts have repeatedly interpreted these rules to allow prosecutors to do their jobs, and there are seldom conflicts among the various state rules which affect prosecutors," Anderson states.
In December 1998, Kevin Driscoll, an ABA senior legislative counsel in Washington, D.C., issued a legislative action alert to encourage bar leaders to support McDade by writing to their congressional delegations. State bars that responded include Florida, Illinois, Iowa, Kansas, Kentucky, New Jersey, New York, Ohio, Oregon, South Carolina and Vermont.
Officials of the unified Kentucky Bar Association believe the issue is: Who will govern the conduct of government lawyers?
The responsibility should be with the state disciplinary authorities, which can better enforce lawyer discipline in their jurisdictions than the DOJ’s own Office of Professional Responsibility. The federal government cannot be permitted to usurp the states’ right to regulate the practice of law, explains Kentucky bar President Richard Clay of Louisville.
"The duties of candor and fair dealing must apply to all lawyers--regardless of whether or not they are employed by the U.S. government. The stakes are, in other words, much higher than simply the narrow issue of whether an assistant U.S. attorney can contact a person represented by a lawyer," Clay says.
The voluntary Ohio State Bar Association’s Legal Ethics and Professional Conduct Committee also supported the McDade measure and opposed any effort to repeal it. "We would question why attorneys investigating a crime in one building should be governed by a different set of standards than attorneys in a contiguous building. It does not make sense and does not serve the best interest of justice," states bar President John Petzold of Miamisburg, in a Feb. 19 letter to Ohio congressmen.
Upon hearing that the law went into effect, Petzold held his position.
"It is as it should be. It’s most inappropriate that they (federal prosecutors) call themselves officers of the court and then hold themselves to a different set of rules," says Petzold, a trial judge for eight years.
U.S. Department of Justice officials believe that their prosecutors will be inhibited when working on multi-state cases. To comply with the new law, DOJ will educate its lawyers over the next six months regarding state bar ethics rules across the country, according to Brian Steel of Washington, D.C., associate director of public affairs.
"We are disappointed that the law was passed. The Department of Justice already lives up to the highest ethical standards," says Steel. DOJ officials will work with those developing legislation, said U.S. Attorney General Janet Reno at an April 1 press conference in Washington, D.C.
"It is very difficult for a prosecutor who is conducting a telemarketing investigation involving 40 states to know just what rule may apply. And we don’t think that they should have to pick and choose at their peril. There should be some certainty," Reno says. DOJ’s position is to clarify the law and not interfere with the duty of a federal prosecutor to enforce federal law, Reno adds.
In the meantime, ABA leaders have been reviewing many of the association’s model rules--including 4.2--as the profession reaches the new millennium. The ABA and DOJ have communicated about rule 4.2. It was the focal point of an April 7 meeting in Washington, D.C., with Reno, Anderson, and representatives of the ABA Ethics Committee and the Ethics 2000 Committee.
"We are working to re-craft the model rule so that it is satisfactory to everyone," says Eileen Libby of Chicago, associate ethics counsel for the ABA Center for Professional Responsibility. A proposed amended version of Model Rule 4.2 is expected to be presented to the House of Delegates at the ABA’s annual meeting in Atlanta in August.
