The claim by the Department of Justice that federal prosecutors are exempt from state ethics rules forbidding contact with represented persons has been repeatedly rejected by the courts. See United States ex rel. O'Keefe v. McDonnell Douglas Corp., 1998 WL 1924 (8th Cir. Jan. 6, 1998) (DOJ lacks authority to exempt itself); In the Matter of Howes, 940 P.2d 159 (N.M. 1997) (public censure of AUSA).

Undeterred, DOJ is taking its case to the Conference of Chief Justices, made up of the top jurists of each jurisdiction. The latest proposal, reprinted in The Criminal Law Reporter, 62 CrL 2043 (Jan. 14, 1998) would exempt all prosecutors, not just the feds, from the prohibition against contacting represented persons who have not been formally charged, and would permit post-charge contact in an expansive variety of circumstances.

Fortunately, the Chief Justices had the benefit of NACDL's excellent brief in opposition , and NACDL President Gerald B. Lefcourt's letter , tabling the proposal until their meeting next August. Further comments are now due June 1, 1998, and should be sent to:
Edward O'Connell, Senior Counsel
National Center for State Courts
1700 North Moore Street
Suite 1710
Arlington, VA 22209

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National Association of Criminal Defense Lawyers (NACDL)
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