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7 Prof. Law. 1 (1995-1996)

handle is hein.journals/proflw7 and id is 1 raw text is: III I A A PROFESSINAL LA I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .I. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Prosecutors' Ethics: Who Should Draw the Lines? Bruce A. Green Suppose that you are a federal prosecutor in the Southern District of New York who is licensed to practice law in New York State. You are supervising a mail fraud investigation of an individual, Jones, who was recently indicted by your office on unrelated tax eva- sion charges. When Jones learns of the new investigation, the lawyer representing him on the The rule tax charges meets with you in an substan attempt to persuade you that interpretati Jones is innocent of mail fraud. Not entirely convinced, you plan and crin to direct federal investigators to go unannounced to Jones's home in New Jersey and to question him about the alleged fraud. The Federal Prosecutor's Conundrum The proposed course of conduct clearly comports with the constitution and federal statutes. But is it ethical? Every state, including New York, has a rule based on or equivalent to the American Bar Association's (ABA) Model Rule 4.2, the so-called no-contact rule. As recently amended, Model Rule 4.2 provides: In representing a client, a lawyer shall not communicate about the subject of the repre- sentation with a person the lawyer knows to be represented by another lawyer in the mat- ter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. -~ ~± J~ ... leaves tial room for ion in both civil ninal cases. rule? The rule, The no-contact rule applies in federal court as well, because a local rule of the Southern District of New York directs lawyers appearing before it to comply with the disciplinary rules of both New York State and the ABA. If you were to direct investi- gators to question Jones, would you run afoul of the no-contact which undoubtedly originated with civil cases in mind, leaves substantial room for interpretation in both civil and criminal cases. The rule would plainly forbid the plaintiffs lawyer in a pending civil case from initiating settlement discus- sions directly with an individual defendant without the knowledge of the defendant's lawyer. But how does the rule apply in a criminal case? Does it apply before criminal charges are filed? Does it apply if a represented defendant initiates the discussion? Does it apply if the purpose of the contact is to gather evi- dence? Does it apply if the contact is made by an investigator or an informant, rather than by a gov- ernment lawyer? How does it apply if the represent- ed defendant is a corporation? The ABA drafters left questions such as these to the sound judgment of those who would later interpret the ethical rules. Continued on page 4 November 1995 Volume 7 Issue Number 1

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