Ex parte communications by government lawyers with represented parties.

• Author: Leesfield, Ira H.

Proposed Changes to Rule 4.2 of the ABA Model Rules of Professional Conduct

A battle fought in the shadows of the executive and judicial branches for more than a decade is now at the doorstep of the legal community. Ignited by the Second Circuit's opinion in United States v. Hammad, 846 F. 2d 854, amended, 858 E2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990),[1] and the infamous "Thornburgh Memorandum,"[2] the debate over the applicability of Rule 4.2 of the ABA Model Rules of Professional Conduct to governmental attorneys has reached a head. Model Rule 4.2, also known as the "anticontact" rule, provides:

4.2 Communication with Person Represented by Counsel. In representing a client, a lawyer shall not communicate about the subject of the representation with a person that 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.[3]

The Department of Justice (DOJ) has repeatedly attempted to exempt its attorneys from the provisions of Model Rule 4.2. In recent years, these attempts for the most part have been rebuked by the courts. The DOJ, however, remains unrelenting, and after its most recent failure to fashion a federal regulation that would all but exclude federal prosecutors from state, local, and federal court rules on ex parte communications, the DOJ has turned its guns on Model Rule 4.2 itself. In a joint venture with a subcommittee of the Conference of Chief Justices, the Department of Justice has fashioned proposed changes to Model Rule 4.2 that would, inter alia, "grant all federal, state, and local government attorneys broad latitude to communicate with represented persons outside the presence of counsel." (Emphasis added.)[4] A vote on the proposed changes to Model Rule 4.2 was tabled at the August 2, 1998, annual meeting of the Conference of Chief Justices, but is scheduled to be acted upon at the midyear meeting in January 1999. If approved, the proposed changes will be forwarded to each state with a recommendation for adoption.

A discussion draft of the proposed rule has drawn extensive criticism from the National Association of Criminal Defense Lawyers (NACDL) as well as the American Bar Association. The NACDL and the ABA view the Department of Justice's actions as an unlawful attempt to exempt government attorneys from ethical standards that have governed all lawyers for well over a century. The DOJ, on the other hand, claims that the current rule impinges on the law enforcement capabilities of federal prosecutors. The government argues that a new rule is needed to "place all lawyers involved in law enforcement--federal, state, and local--under a single clear rule of ethics."[5] The government's concerns are not without justification, but the broad wording of the proposed rule leaves the door open for potential abuse in the criminal and civil context. The first part of this article provides the historical perspective detailing the government's early attempts to exemp its lawyers from Model Rule 4.2. This part of the article also explains the Department of Justice's concerns and justifications over the current insufficiencies of the rule. Part two of the article describes some of the more pertinent proposed changes to the rule and the current controversy over these changes. Lastly, the conclusion suggests that alternative proposals from various legal committees may prove more acceptable than the Department of Justice's proposed version of the rule, and that now is the time for the legal community to take notice and take action in this ongoing debate.

Historical Perspective: Attempts at Exemption

Model Rule 4.2, and its predecessor DR 7-104(A)(1),[6] have been adopted and applied in one form or another in all 50 states.[7] The American Bar Association first introduced the rule in the Canons of Professional Ethics as Canon 9 in 1908. Promulgated to "prevent lawyers from taking advantage of uncounselled laypersons and to preserve the integrity of the lawyer-client relationship," the rule has been cited and elaborated on by courts innumerable.[8] However, in recent years, the rule has come under attack from the Department of Justice, and not completely without good cause. As the legal community continues to expand, so do the minds that conceive and analyze arguments. Crafty lawyers are able to find loopholes in even the most tightly worded statutes and holdings. It is in this context that the government asserts that the scope of Model Rule 4.2 has been broadened to the point that it becomes difficult or impossible for federal prosecutors to fulfill their law enforcement responsibilities.[9]

The uproar over Model Rule 4.2 emerged suddenly and dramatically almost a decade ago when Attorney General Richard Thornburgh circulated a memorandum (the "Thornburgh Memorandum") among Justice Department litigators asserting that federal prosecutors were no longer bound by federal and state rules of ethics governing ex parte communications with represented parties.[10] The actual publishing of the memorandum was triggered by the Second Circuit's ruling in United States v. Hammad, 858 F. 2d 834 (2d Cir. 1988),[11] holding that DR 7-104(A)(1) "applies to federal criminal investigations both before and after indictment, [and] that a prosecutor violates the rule by using an informant to gather information from a suspect known to be represented by counsel."[12] Prior to Hammad, most jurisdictions held that the "anti-contact" did not apply at the preindictment or prearrest stage even when suspected criminals had retained counsel.[13] Hammad, however, placed in doubt the government's ability to investigate suspected criminals prior to arrest or indictment where the suspect kept counsel on retainer.[14]

Asserting the importance of preindictment investigations in the crime-fighting process, the Thornburgh Memorandum expressed that the "anti-contact" rule had become "inconsistent with the modern demands on its prosecutors."[15] The two principal arguments asserted in support of exempting federal prosecutors from the rule were 1) that federal prosecutors play an active role in investigations and the broadening applicability of Model Rule 4.2 is hampering their abilities to perform their law enforcement responsibilities; and 2) the differing interpretations of the ethics rules among the states have made it difficult for federal prosecutors working on the same case to work in unison and without fear that their actions may result in sanctions from the disciplinary boards in the states in which they are licensed.[16] In support of the government's first argument, commentators have stated that applying the anti-contact rule at the preindictment stage could work to effectively immunize suspects from investigations. Career criminals would have the ability to shield themselves from undercover investigations simply by keeping counsel on retainer.[17] The government's second argument is supported by the fact that different jurisdictions have interpreted the "anti-contact" in a nonuniform manner.[18] Varying interpretations of the code of ethics posed significant problems when numerous federal prosecutors, all licensed in different states, worked on the same case. The difficulty and time wasted in trying to discover which prosecutors were barred by their state codes from such communications and which were not was a significant impediment to law enforcement and made it nearly impossible to coordinate investigations.[19]

The Attorney General anticipated an attack on his authority to issue such a proclamation and in his memorandum he provided two grounds for exempting government lawyers from Rule 4.2. First, and citing to Model Rule 4.2 itself, the memorandum claimed that government lawyers were "authorized by law" to conduct undercover law enforcement practices that entailed ex parte communications with represented parties.[20] Second, the memorandum asserted that the Supremacy Clause of the Constitution barred the enforcement of ethics rules at state and local levels against federal prosecutors.[21]

Commentators were quick to respond to the Attorney General's assertions, deeming the memorandum a threat to the judiciary's "inherent supervisory power ... over officers of the court."[22] The proclamation also was deemed a threat to the recognized right of the state bar associations to oversee the ethical conduct of attorneys...