DOJ Lawyers Must Obey the Law

Washington, DC (October 21, 1998) -- Today's passage by Congress of the "Citizen's Protection Act," as Section 801 of the omnibus spending bill, stops in its tracks backdoor attempts by DOJ to hold its lawyers above the laws of ethical conduct which apply to all lawyers.

Contrary to some reports, the provision simply reaffirms longstanding principles which in recent years have been brushed aside by the Department. DOJ lawyers, like all other lawyers, are and historically have been answerable to the high court of the state or states by which they have been granted a license to practice law. But since 1989, DOJ has claimed that its lawyers can ignore the fundamental ethical prohibition against contacting represented persons without their lawyers (ex parte contacts), in order to intimidate and interrogate employees of corporations and small businesses, and individual citizens, under criminal or civil (regulatory) investigation.

The Department's refusal to abide by the fundamental rules of ethical attorney conduct has been roundly condemned by state and federal courts, including a unanimous resolution of the Conference of State (Supreme Court) Justices. Most recently, the Eighth Circuit U.S. Court of Appeals soundly rejected the DOJ's position, in a case concerning a government regulatory investigation of major defense supplies company McDonnell Douglas. United States v. McDonnell Douglas Corporation, 132 F.3d 1252 (8th Cir. 1998).

Now, following an overwhelming bi-partisan 345-82 House vote in August, the full Congress has put a stop to Justice Department attempts to evade the rules by which all lawyers are supposed to abide, as required by the State Supreme Courts granting those lawyers their licenses. The measure also covers independent counsels. It affords the Attorney General 180 days from the date of enactment to make and amend DOJ rules to assure compliance with the section.

"No one, not even a federal prosecutor, is above the law," NACDL President Larry S. Pozner, of Denver, said today. "Congress has set the record straight and put an end to the Department's arbitrary policy of deciding which ethical rules it will obey or disobey -- a policy that has squandered scarce tax dollars and abused citizens' rights."

"It only makes sense for Congress to condition its allocation of citizen tax dollars to DOJ operations on principles of fundamental fairness -- specifically, that federal prosecutors employed through the public purse abide by the rule of law," Pozner said. 

FACT SHEET
Congress Is Right to Reject DOJ Attempts to Hold Itself Above the Law, and
Insist That Prosecutors and Regulatory Lawyers Abide by Basic Rules of Attorney Ethics  

"[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore . . . is not that [he] shall win a case, but that justice shall be done . . . . He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones." Berger v. U.S., 295 U.S. 78, 88 (1935) (Sutherland, J.).  

Nor should his boss, the nation's Top Prosecutor, be able to make it otherwise.  

Far from "constitut[ing] an unwarranted and unnecessary interference with the lawful and effective functioning of federal attorneys and law enforcement agents" -- as greatly over-stated by the Department of Justice -- the "Citizens Protection Act," passed by Congress as a condition of the allocation of citizen tax dollars to DOJ operations, ensures that the conduct of federal lawyers is lawful.

DOJ's claim, that Section 801 applies the State Supreme Court rules of attorney ethics to Department of Justice lawyers for the first time, is entirely false. Before 1989, DOJ did not claim, as it now does, that it is above the law. The Department successfully investigated and prosecuted plenty of organized crime, drug trafficking, money laundering, and terrorist cases, and all federal criminal cases, before 1989. But in a 1989 internal memorandum and a 1994 regulation, DOJ has asserted the untenable position that its lawyers are above the law of ethical attorney conduct -- that federal lawyers need not abide by the fundamental rules of appropriate attorney conduct by which all lawyers are supposed to abide; DOJ will make up its own rules of ethics and "police its own."

Specifically, since 1989, DOJ has asserted that its lawyers alone can ignore the laws against interrogating citizens, employees of corporations and small businesses under criminal or civil (regulatory) investigation, outside the presence of counsel. This is one of the most fundamental attorney ethics rules, adopted by State Supreme Court law-licensing authorities and the federal courts: the rule against ex parte contacts with represented persons.

Section 801, the Citizens Protection Act, simply re-establishes the historical and ethical status quo before the Department of Justice unilaterally claimed the power to evade the State Supreme Court licensing rules of attorney conduct, and local federal court rules of appropriate attorney conduct without any actual authority to do so.

The State Supreme Courts have always borne the exclusive responsibility for admitting attorneys to the bar and for their discipline. As the U.S. Supreme Court has said: "Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers." Leis v. Flynt, 439 U.S. 438, 442 (1979). Local federal courts often adopt at least some of the rules of appropriate attorney conduct required by the highest court in the State in which the federal court exists, as the local federal court rules of attorney conduct.

The Department's position has been roundly condemned as unconstitutional by state and federal courts, including a unanimous resolution of the Conference of State Courts. Most recently, the Eighth Circuit U.S. Court of Appeals rejected DOJ's untenable position, in a case concerning a government regulatory investigation of the McDonnell Douglas Corporation, U.S. v. McDonnell Douglas Corporation, 132 F.3d 1252 (8th Cir. 1998).

Indeed, Congress has consistently declared that each Department of Justice lawyer employed through the public purse must be "duly licensed and authorized to practice as an attorney under the laws of a State, territory, or the District of Columbia." Department of Justice Appropriation Authorization Act, Fiscal Year 1980, Pub. L. No. 96-132, 93 Stat. 1040 (1979) (this provision has been reenacted in successive years). The courts have held that this statute requires prosecutors to comply with the attorney ethics rules of their respective states of admission. See e.g., U.S. v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd, 54 F.3d 825 (D.C. Cir. 1995). In passing the Citizens Protection Act as a condition of Department of Justice appropriations, Congress has simply and wisely reasserted that federal government lawyers are not above the law, but must indeed abide by the state licensing authorities' rules of ethics (and the local federal court) rules of attorney conduct -- just as Congress has always intended and as the courts require. This Congressional curbing of the Department's unethical conduct rightly recognizes that legitimate law enforcement concerns cannot justify DOJ's self-creation of less demanding ethics rules for its own prosecutors and regulatory lawyers. The judiciary has consistently read the rule against contact with represented persons, and other ethics rules, to permit federal prosecutors reasonable leeway to perform their duties -- e.g., in the "in-house mob lawyer" hypothetical DOJ so often cites. In exceptional cases like these, government lawyers should, as they have historically, simply seek judicial authorization for an exception to the rules, just like with warrant or wiretap requests. A judicial authorization according to the applicable laws and rules of conduct, by the neutral judicial authority, would meet the well-recognized "authorized by law" exception to the legal rules against interrogating persons outside the presence of their lawyers. Indeed, neither DOJ nor any other law enforcement group has cited an actual ethics case placing an unreasonable restraint on law enforcement.

As to the Department's assertion that Section 801 might threaten multi-district prosecutions, the reality is that very few federal government attorneys ever practice in more than one state. And those who do can seek judicial authorization reconciling any claimed disparity in rules of conduct, just like lawyers in private practice who are involved in multi-district litigation. Again, the judiciary has consistently read the rule against contact with represented persons, and other ethics rules, to permit federal prosecutors reasonable leeway to perform their duties. And DOJ has cited no actual ethics cases placing even an arguably unreasonable restraint on multi-state law enforcement.

Likewise, contrary to recent Department of Justice statements, there is no "haphazard patchwork" of state bar and local federal court rules of attorney ethics. They are all essentially the same. In fact, the rules of ethics are a required course of study in all law schools and are tested on all bar exams. All attorneys are expected to know these rules and abide by them. All other attorneys, including state prosecutors (who prosecute the vast majority of criminal cases in this country), manage to do so.

The measure passed today by Congress was the subject of hearings in the House Judiciary Committee in September 1996. A comprehensive hearing record is available, which includes the DOJ's unpersuasive attempt to justify its position. See Ethical Standards for Federal Prosecutors Act of 1996, Hearing Before the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U.S. House of Representatives, Serial No. 109 (104th Congress). House Judiciary Committee Chairman Henry Hyde is among those wise leaders supporting this measure.

Since the House Judiciary Committee's hearing, DOJ has actually stepped up its unlawful campaign to thwart state laws on the ethical conduct expected of those lawyers to whom the states have granted a license to practice law. DOJ started squandering its congressionally-appropriated tax dollars by instigating federal lawsuits against the states. The Department has forced the states to spend their tax dollars in these federal cases defending their right under the fundamental constitutional principle of Federalism (state prerogatives and responsibilities), to ensure that the lawyers to whom they grant a license to practice law (a core state function) actually abide by the states' standards of ethical attorney conduct. A case in point is the one recently brought by DOJ in federal court against Louisiana in December, 1996. The Department soaked up the scarce resources of the Louisiana Supreme Court, represented by the Louisiana Attorney General -- and squandered congressionally-appropriated federal tax dollars -- for over seven months before the case was dismissed. There was no actual or potential interference with any federal investigation even claimed, along the lines of the hypothesized horrors DOJ has presented. The Department simply asserted its roundly condemned argument that it is "supreme" in its ability to self-exempt itself from the basic state supreme court law licensing rules of attorney ethics. 

The rule of law is the bedrock of our democracy. Lack of accountability, and special exemptions from the law for federal employees engenders a crisis in citizen confidence in our democracy. It only makes sense for Congress -- the people's representative body -- to ensure that its allocation of money from the public purse to DOJ operations is conditioned on the basic requirement that lawyers employed through such tax dollars abide by the rule of law, as required by the independent state and federal judiciary. The chief sponsor of this important measure, Representative Joseph McDade, and the entire Congress are to be commended for re-establishing this fundamental protection of the citizenry against excessive conduct by federal prosecutors and regulatory lawyers.

Contacts

NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.