March 1999

Legislation
By Leslie Hagin
Justice Department Attacks New Statute Holding Prosecutors to Ethics Rules

    Leslie J. Hagin is NACDL's Legislative Director, and was previously counsel to the House Judiciary Committee. Her e-mail address is NACDLlegis@aol.com.

      Act Now!
      January 15, Orrin Hatch (R-UT), Chairman of the Senate Judiciary Committee, took up the Justice Department’s untenable cause to continue operating outside the bounds of basic ethical standards for attorney conduct. He has introduced S. 250 — to repeal the Ethical Standards for Government Lawyers statute signed into law in October, to take effect this April. This Ethical Impostor would repeal the important new statute. Instead, S. 250 would codify the Thornburgh Memo/Reno Regulation, and then some!

      It would, for the first time, congressionally authorize the Attorney General to carve out self-exemptions for her attorneys and agents from the State Supreme Courts’ fundamental rules of ethical conduct, whenever she decides that a State Supreme Court ethics rule “conflicts” with Department “policy” (e.g., the Thornburgh Memo/Reno Regulation on ex parte contacts with represented persons).

      Act Now! Tell your Senators to reject S.250. Urge them to support as written the wise and simple Ethical Standards statute just signed into law last October.


Your help is urgently needed to ensure that Department of Justice attorneys are not exempted from state supreme court and local federal court ethics rules that have historically governed all attorneys.

In recent years, DOJ has claimed that it is exempt from certain ethics rules.

In 1994, it issued regulations purporting to exempt its attorneys from basic ethics rules prohibiting unauthorized contact with represented persons. The 105th Congress passed legislation in October explicitly clarifying that federal prosecutors are subject to state laws and ethics rules governing attorneys’ conduct. This provision, named after its chief sponsor, Rep. Joseph McDade (R-PA), was included in the omnibus spending bill, P.L. 105-277. The “McDade provision” negates the 1994 Department regulations that purported to exempt DOJ lawyers from Rule 4.2. The law passed the House of Representatives by the extraordinary margin of 345-82, with strong support from both parties, including Speaker Dennis Hastert (R-IL), Majority Whip Tom DeLay (R-TX), Chris Cox (R-CA), House Judiciary Committee Chairman Henry Hyde (R-IL), Minority Leader Richard Gephardt (D-MO), Minority Whip David Bonior (D-MI), and original co-sponsor John Murtha (D-PA).

The statute’s effective date was delayed for six months (until April 21, 1999) — to allow DOJ to amend its rules to comply with the new law. But high-level Justice Department representatives (notably, Deputy A.G. Eric Holder, Jr. and legislative affairs spokespersons) are vowing to use this delay to lobby to thwart the new law. They are urging members of the new 106th Congress — especially Senators on the Judiciary Committee — to repeal the new law.

Your Action Needed
A Fact Sheet and the text of the new ethics statute follows. Please use these materials to contact your Representative and your two Senators right away. Urge them to reject any efforts to repeal or weaken this important government attorney ethics law, or to otherwise allow the Department of Justice to exempt itself from the state supreme court and local federal courts’ independent and effective supervision of attorneys. Contact them at both their Washington, DC office and their local district office.

If your Representative is one of those key members of the House cited above as a supporter of the statute, we need you to urge him to lead a strong resistance to DOJ efforts to repeal or weaken the new law. The members of the Senate Judiciary Committee are most in need of hearing from constituents about the need for the new law. Current members of the Senate Judiciary Committee are:
    Chairman Orrin Hatch (R-UT); Strom Thurmond (R-SC); Charles Grassley (R-IA); Arlen Specter (R-PA); Jon Kyl (R-AZ); Mike DeWine (R-OH); John Ashcroft (R-MO); Spencer Abraham (R-MI); Jeff Sessions (R-AL); and Robert Smith (R-NH).

    Ranking Minority Member Patrick Leahy (D-VT); Edward Kennedy (D-MA); Joseph Biden (D-DE); Herb Kohl (D-WI); Dianne Feinstein (D-CA); Russ Feingold (D-WI); Robert Torricelli (D-NJ); and Charles Schumer (D-NY).
All Senators can be reached at their Washington offices through the Senate Switchboard Operator (202) 224-3121; and by addressing correspondence to The Honorable (full name); United States Senate; Washington, DC 20510.

All Representatives can be reached through the House Switchboard Operator (202) 225-3121; and by addressing correspondence to The Honorable (full name); United States House of Representatives; Washington, DC 20515.
Contact me if you have any questions or need further information.

Fact Sheet

New Ethical Standards for Federal Prosecutors Law Clarifies That
Federal Prosecutors Are Not “Above the Rules” of Ethical Attorney Conduct
The Omnibus Consolidated and Emergency Supplemental Appropriations bill, P.L. 105-277 (H.R. 4328) (Oct. 21, 1998) contains an important provision, authored by Rep. Joseph McDade (R-PA) and supported by NACDL, which explicitly clarifies that federal prosecutors and regulatory lawyers are indeed subject to the same fundamental state supreme court and local federal court rules as govern the conduct of all other attorneys.

Background:
This statute is intended to invalidate a controversial Department of Justice (DOJ) regulation designed to exempt federal prosecutors from certain state ethics rules.

In June 1989, U.S. Attorney General Richard Thornburgh, in an internal memo to DOJ attorneys, said that federal prosecutors, and others working at their direction, are authorized to question 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 of Justice attorneys was invalid under the Supremacy Clause of the Constitution, and that the state rules against contacts with represented parties (modeled upon ABA Model Rule of Professional Conduct 4.2 and its predecessor) were unenforceable against federal prosecutors.

On August 4, 1994, the Department of Justice issued a final regulation outlining the circumstances under which Department attorneys are permitted to so interrogate persons represented by counsel. NACDL and many others opposed the regulation as an impermissible infringement on the right to counsel. The regulation substituted the Attorney General’s self-interested supervision of her own employees for the control and supervision that have historically been the province of the neutral state and federal judiciary.

Congress has now recognized these principles by passing the ethical standards statute on October 21, 1998. This law is also supported by the American Bar Association, the Conference of (State Supreme Court) Chief Justices and the American Corporate Counsel Association, among others.

Legislative Status:
The new statute does not take effect until 180 days after enactment, or on April 19, 1999. Representatives of the Justice Department have indicated that it will use this delay to seek to repeal or weaken the statute, perhaps even urging Congress to replace it with a provision authorizing the Attorney General to promulgate a complete DOJ code of ethics that would pre-empt all state and federal court regulation of federal prosecutors. This was in fact a proposal by Senate Judiciary Committee Chairman Orrin Hatch (R-UT) and then-Majority Leader Robert Dole (R-KS), in 1995-1996 (104th Congress). Chairman Hatch opposed the McDade provision.

Specific Concerns
  • Congress should reject any attempt to repeal the McDade provision and replace it with a Justice Department self-regulation scheme. Federal prosecutors, like all other lawyers, historically have been subject to investigation and discipline by the ethics authorities of the state supreme court by which they are admitted to practice.
  • No internal Justice Department ethics system can guarantee the objectivity that the current, independent system delivers. Currently, misconduct allegations against federal prosecutors are subject generally to two levels of outside review: state lawyer disciplinary agencies investigate complaints and recommend sanctions if appropriate; state supreme courts then rule upon those recommendations.
  • Nor do state ethics rules form a hodgepodge of inconsistent standards. Since 1908, standards of professional conduct recommended by ABA have become the national professional model, adopted by states almost universally. In 1983, the ABA adopted a third revised standard of its statement of professional standards, the ABA Model Rules of Professional Conduct, which nearly all states have followed. Indeed, all law students must pass a course on these rules before graduating from law school, and all law school graduates must pass a special exam on these rules before being licensed to practice law anywhere, by any state supreme court licensing authority.
  • Department of Justice self-regulation would be of questionable constitutionality under the separation of powers doctrine. The power to regulate the conduct of federal prosecutors in the federal courts is inherently that of the federal judiciary, not the Attorney General or the executive branch.
  • Any attempt to end the longstanding practice of having state and federal judicial authorities exercise independent supervisory authority over Justice Department prosecutors would also upset the traditional balance of responsibilities in the court system. Prosecutors must be held to the highest standards of conduct because of their extraordinary powers and unique role in our justice system. Permitting the Justice Department to write its own, special set of more lax rules of attorney conduct for its own employees creates a dangerous double standard, sending precisely the wrong message to the profession and the public. See Statute, p. 28.



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