About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

74 Judicature 203 (1990-1991)
Ethics and the Attorney General

handle is hein.journals/judica74 and id is 205 raw text is: Ethics and the attorney general Under arguments advanced by the Department of Justice, government attorneys seem to be held to a different and lower standard of ethics than other members of the bar. Such deregulation does not promise glory either to the attorneys or the government they serve. by Jerry E. Norton In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.' In the course of investigating and prose- cuting violations of federal criminal law and investigating and litigating civil en- forcement matters, law enforcement offic- ers, including Department of Justice attor- neys and those acting at their direction, often have occasion to contact or communi- cate with individuals represented by coun- sel. Such contacts or communications are an important element of effective law en- forcement. Accordingly, an attorney em- ployed by the Department, and any indi- vidual acting at the direction of that attorney, is authorized to contact or com- municate with any individual in the course of an investigation or prosecution unless the contact or communication is prohib- ited by the Constitution, statute, Executive Order, or applicable federal regulation.2 1. Rule 4.2 of the ABA Model Rules of Profes- sional Conduct. See also, DR 7-104 (A) (1) of the earlier ABA Model Code of Prolessional Responsi- bility: During the course of his representation of a client a lawyer shall not: Communicate or cause another to communicate on the subject of the representation with a party he knows to be repres- ented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. 2. Tentative draft of language to be added to the Department of Justice Standards of Conduct. This language is taken from a memorandum dated June 8, 1989, addressed to all Justice Department litiga- tors from Attorney General Richard Thornburgh, dealing with the subject of Communication with n an earlier article, this writer at- tempted to demonstrate that newer investigative techniques have in- creasingly involved government at- torneys in investigations and have also created new ethical problems for these attorneys.3 Among the problems identi- fied is that of contacting parties repres- ented by counsel. Both Rule 4.2 of the ABA Model Rules of Professional Con- duct and Disciplinary Rule 7-104 (A) (1) of the earlier ABA Model Code of Profes- sional Responsibility prohibit such com- munication unless 1) it is with the con- sent of opposing counsel, or 2) the attorney is authorized by law to do so. The purpose of this article is to explore this problem further. The effect which these rules may have on investigative practices by prosecutors is most graphically illustrated by exa- mining a decision by the United States Court of Appeals for the Second Circuit Persons Represented by Counsel, at pp. 7 and 8. 3. Norton, Government attorneys'ethics in tran- sition, 72 JUDICA-'URE 299 (1989). 4. United States v. Hammad, 858 E2d 834 (2d Cir., 1988). 5. Id. at 835-36. 6. Id. at 837-38. 7. Id. at 838-840. 8. Id. at 840-42. The court held that the evidence should not be excluded in the Hammad casc itself because the law was previously unsettled in this area. Id. at 842. The issue of exclusion arises under the federal courts' supervisory powers. 9. United States v. Ryans, 903 E2d 731 (10th Cir. May 8, 1990). in United States v. Hammad. In that case, as a part of a Medicaid fraud inves- tigation, an assistant United States Attor- ney gained the cooperation of an infor- mant who had participated in the fraud. The assistant directed the informant to arrange and record a meeting with the defendants, who were represented by counsel. Several meetings were held be- tween the informant and one or more of the defendants. To help the informant obtain recorded incriminating state- ments, the prosecutor at one point sup- plied the informant with a sham grand jury subpoena.5 Speaking for the Second Circuit Court of Appeals, Judge Irving R. Kaufman first affirmed that DR 7-104(A)(1) limits actions by government attorneys in crim- inal prosecutions.6 Further, the court held that the rule applies even before formal charging, rejecting the govern- ment argument that the disciplinary rule would become operative only when the Sixth Amendment right to counsel came into existence.7 While recognizing that there may be exceptions, the court held that the disciplinary rule was vio- lated in this case, and that the evidence obtained in this manner might be ex- cluded in future cases.8 Not all circuits have agreed with the conclusion reached in Hammad. Faced with a similar fact situation, the Tenth Circuit reached the opposite conclusion in United States v. Ryans.9 While we

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most