American Bar Association
2002 Legislative and Governmental Priorities
Background · Current Status · ABA
Policy · Key Points · Links
Background
In June of 1989, U.S. Attorney General Richard Thornburgh, in an
internal memo to Department of Justice attorneys, said that federal
prosecutors, and others working at their direction, are authorized
to contact a suspect who is represented by counsel without informing
that counsel. He argued that any disciplinary rule for the profession,
which placed a burden on Department attorneys, was invalid under
the Supremacy Clause of the Constitution. He also argued that state
rules against contacts with represented parties (modeled upon ABA
Model Rule of Professional Conduct 4.2 and its predecessor) was
unenforceable against federal prosecutors.
On August 4, 1994, the Department issued a final regulation outlining
the circumstances under which Department attorneys are permitted
to contact persons represented by counsel. The ABA wrote to the
Attorney General expressing its concerns that the regulation impinges
impermissibly on the right to counsel. Moreover, the ABA noted that
the regulation would substitute the Attorney General's regulation
of lawyers for the control and supervision that has historically
been the province of the state and federal judiciary.
The 105th Congress included language in the FY 99 omnibus appropriations
bill, P.L. 105-277 (H.R. 4328), authored by Reps. Joseph McDade
(R-PA) and John Murtha (D-PA) and supported by the ABA, that explicitly
makes federal prosecutors subject to the same ethics laws and rules,
and to the same local federal court rules, governing the conduct
of all other attorneys practicing law in those states. However,
congressional opponents of the McDade-Murtha provision (28 U.S.C.
Section 530B), working with the Department of Justice, were able
to delay the provision from going into effect until 180 days after
enactment, or April 19, 1999.
In the 106th Congress, prior to the provision going into effect,
Senate Judiciary Committee Chairman Orrin Hatch introduced S. 250,
which would have repealed the McDade-Murtha provision. S. 250 would
have made federal prosecutors exempt from a state ethics rule if
the Attorney General determined that the rule was "inconsistent"
with federal law or "interfered with the effectuation of federal
law or policy." S. 250 also would have established a federal commission
to review whether any specific federal prosecutorial duties are
incompatible with any state ethics rules. The bill was referred
to the Senate Judiciary Committee, but it did not receive any further
action.
On April 21, 1999, Sen. Patrick Leahy (D-VT), Ranking Minority
Member of the Judiciary Committee, introduced S. 855, legislation
which would have made clear that the Department of Justice does
not have the authority to write its own ethics rules. S. 855 would
have provided that, with respect to any conduct in connection with
a matter before a federal court or grand jury, federal government
attorneys would be subject to the professional standards established
by the relevant federal court. For other conduct, government attorneys
would be subject to the professional standards established by the
states in which they are licensed to practice. S. 855 also would
have directed the U.S. Judicial Conference to report to the U.S.
Supreme Court on a uniform national rule for federal government
attorneys relating to contacts with represented persons. Sens. Hatch
and Leahy worked on a compromise proposal, but were blocked from
attaching a modified version of S. 855 to other bills at the end
of the Congress.
In the 107th Congress, Sens. Patrick Leahy (D-VT) and Orrin Hatch
(R-UT) introduced legislation, S. 1437, which makes clear that the
Department of Justice may not write its own ethics rules, but, among
other provisions, directed the U.S. Judicial Conference to report
to the U.S. Supreme Court on a uniform rational rule for government
attorneys relating to contacts with represented persons.
A slightly modified version of S. 1437 was included in the Senate-passed
anti-terrorism bill, S. 1510, passed on October 11. The House-passed
bill, H.R. 2975, did not contain a similar provision. House and
Senate negotiators ultimately agreed not to include the provision
in the final legislation, which was renumbered as H.R. 3162. The
bill cleared the House on October 24, the Senate on October 25,
and was signed into law by the President on October 26, 2001.
Senate efforts to attach provisions of S. 1437 to the Justice Department
reauthorization legislation, H.R. 2215, were rejected by the conferees.
The President signed H.R. 2215 on November 2, 2002. ABA President
Robert E. Hirshon sent a letter
to Rep. F. James Sensenbrenner, Jr. (R-WI), chair of the conference,
urging that these provisions not be included in H.R. 2215.
Current
Status
In the 108th Congress, the
provisions of S. 1437 are included in an omnibus crime bill, S.
22, introduced by Senate Minority Leader, Tom Daschle.
ABA Policy
The ABA opposes a blanket
exemption for federal government lawyers from the professional conduct
rules that apply to all lawyers under applicable rules of the jurisdictions
in which they practice.
Key Points
- The ABA opposes any legislation,
such as S. 250 of the 106th Congress, which would effectively
repeal the McDade-Murtha provision (28 U.S.C. Section 530B) included
in the FY99 omnibus appropriations bill, P.L. 105-277.
- Regulation of the conduct
of attorneys has traditionally been the province of the states,
which admit attorneys to practice, adopt rules for their conduct,
and discipline them for violations of those rules.
- Congress should proceed
cautiously with any action that would supplant the effective mechanism
of state regulation of the conduct of attorneys with a federal
system whose effects are unpredictable and whose structure is
presently undefined.
- No internal Justice Department
ethics system can guarantee the objectivity that the current independent
system delivers. This independent review is an important check
on potential misconduct by federal prosecutors.
- Self-regulation by the
Department of Justice would be of questionable constitutionality
under the separation of powers doctrine. The power to regulate
the conduct of lawyers is inherently that of the judiciary that
licensed them, not the Attorney General or the executive branch.
- State courts have repeatedly
interpreted state ethics rules to allow prosecutors to do their
jobs, and there are seldom conflicts among the various state rules
that impair effetive law enforcement.
- The concern expressed by
the Justice Department regarding problems presented by multistate
prosecutions is not one that is limited to federal government
attorneys; it is shared by all lawyers who have a national or
multistate practice. Virtually all states have adopted a choice
of law rule to deal with this situation.
ABA Links
Other
Links
Last Updated: November 2,
2002
Background · Current Status · ABA
Policy · Key Points · Links
|
2002 Priorities:
Application
of
State Ethical Codes
Gramm-Leach-Bliley
Health Care Accountability:
Medical Malpractice
Health Care Accountability:
Patients' Bill of Rights
Immigration
Independence
of the Judiciary: Erosion of the Judicial Process
Independence
of the Judiciary: Judicial Compensation
Independence
of the Judiciary: Judicial Vacancies
Legal Remedies
to
Eliminate Discrimination
Legal Services
Corporation
Rule of
Law: International Organizations
Rule
of Law: International Treaties
Student Loan
Forgiveness
Tax Simplification
|
