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Update: Thornburgh Rule is Nixed

It's official. The Ethical Standards for federal prosecutors Act took effect April 19, 1999. 28 USC 530B (P.L. No. 105-277, Sec. 801)

This is a substantial victory against DOJ’s incessant efforts to delay and repeal the Act. Several long-time congresspersons have commented that they have never seen such a massive lobbying effort as that deployed by the Justice Department.

Key to the victory were our allies, the American Corporate Counsel Association, the U.S. Chamber of Commerce, the National Association of Manufacturers, and literally hundreds of individual companies across the country. We were also joined by our longtime ally, the ABA, and by the National Conference of (State Supreme Court) Chief Justices.

Remain Vigilant
Senate Judiciary Committee Chairman Orrin Hatch’s bill to repeal this important law, and codify the Thornburgh Memo/Reno Regulation, remains a threat. S. 250 is still pending.

Also, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, is now contemplating introduction of DOJ-backed legislation to dictate that the U.S. Judicial Conference craft a special, “uniform” federal rule on communications with represented persons or parties, peculiar to federal government lawyers. Such legislation would undermine the Ethical Standards for Federal Prosecutors Act by pre-determining that the Judicial Conference and Congress must promulgate and enact a special rule for federal government lawyers, distinct from the rule governing other lawyers. In all probability, the codified rule to emerge would be one quite similar to the Reno Regulation.

Specifically, the Leahy measure under consideration commands that the Judicial Conference craft and recommend to Congress, within one year, a special rule on communications with represented persons or parties -- accounting for the “special needs and interests of the United States as a party in criminal and civil law enforcement actions.” The burden would then be on both bodies of Congress to affirmatively reject the proposed rule within a short period of time, to keep it from automatically becoming law.

Stay tuned -- and stay vigilant!