Federalizing the no-contact rule: the authority of the Attorney General.

Author:Allen, Elizabeth A.
  1. Introduction: The Debate Over The "No-Contact

    Rule" II. The Ethics Rule III. The Origins of The DOJ Regulation

    1. The Thornburgh Memo

    2. Promulgation of The DOJ Regulation IV. The DOJ No-Contact Regulation

    3. The Purpose and Scope of The Regulation

    4. How The Regulation Differs From The Ethics Rule

      1. Person/Party Distinction

      2. Enforcement Mechanism V. Challenges to The Creation and Substance of The


    5. Bar and Judicial Resistance

    6. The Authority to Promulgate The Regulation

      1. Ethics Rules Authorization

      2. Statutory Authorization

      3. Constitutional Authorization

        1. Preempting State No-Contact Rules and Law

        2. Superseding Local Federal Court No-Contact Rules

        C Substantive Differences

      4. Distinguishing Between Person and Party

      5. The Enforcement Mechanism

    7. Potential Issues for Supreme Court Review VI. The Effect of The Regulation on Legal Ethical Standards VII. Conclusion

  2. Introduction: The Debate Over The "No-Contact Rule"(1)

    Faith, a federal prosecutor for the Department of Justice, was the head of an investigative team that built a case against Darryl, the big boss in a drug ring, after an informant identified Darryl's-participation in the latest drug war violence. Faith took an active role in the planning of the sting operation because it was vital to obtain damaging admissions given the lack of physical evidence. The operation collected substantial incriminating evidence. At trial in district court, Darryl moved to suppress the evidence on the grounds that Faith obtained the evidence in violation of the state's no-contact rule, because he had a lawyer at the time. Faith is a member of the State Bar which adopted the Model Rules of Professional Conduct and incorporated them in the State Code. The District Court judge denied the motion on procedural grounds. The State Bar Disciplinary Board, however, finds it has grounds to sanction Faith for causing another member of the investigation team to have an ex parte communication with Darryl in violation of the State's no-contact rule. The Department of Justice informs the Disciplinary Board that it may not take any action against Faith because the Attorney General has found that Faith did not willfully violate the federal no-contact regulation. The state law is preempted, and according to the regulation, the Attorney General's finding is exclusive and final No sanctions are imposed.

    Can a federal agency legitimately overrule state ethics law? Apparently so.

    On August 4, 1994, the Department of Justice ("DOJ") promulgated a regulation which created a no-contact rule for federal prosecutors.(2) In essence, the no-contact regulation adopts the traditional ban on ex parte communications by attorneys with adverse represented parties, without their attorney's consent and on the subject matter of the representation, except where otherwise authorized by law.(3) In addition, the federal regulation extracted and adopted from case law the distinction between a "represented person" and a "represented party."(4) The regulation expressly recognizes that a "represented party," and not a "represented person," is one who has been arrested or charged concerning the subject matter of the representation.(5)

    In their daily duties, federal prosecutors face the realities of prosecuting "parties" but only investigating "persons." The American Bar Association ("ABA"), however, refuses to acknowledge this difference regarding ex parte communications in its no-contact rules.(6) Because state bar rules, state ethics laws, and federal court rules tend to mimic ABA standards of professional conduct, the ABA's vigorous refusal to distinguish between represented "persons" and "parties" in its no-contact rules(7) has permitted and encouraged this ethical conflict to develop.(8) Most states(9) and the District of Columbia have a no-contact rule which addresses represented "parties" but is indefinite about its application to represented "persons."(10) This uncertainty is unnecessary--it does not promote ethical behavior and it breeds an ineffective federal prosecutorial system. If the ABA and the states will not bring a realistic uniformity to ex pane communications, then the time has come for another with authority to lead the way. The Justice Department's objective in promulgating the regulation is to clarify for its employees when contacts with represented "persons" are ethically and legally permissible, while maintaining the highest ethical standards.(11) The Department achieves this objective in three steps. Step one is to establish the parameters of the regulation by explicitly defining who represented "persons" and "parties" are, when ex parte communications are forbidden, and what exceptions, if any, exist.(12) Step two is to proclaim that this federal regulation will preempt and supersede state rules and law and local federal court rules on the subject of ex parte contacts by federal prosecutors with represented persons or parties.(13) Step three is to permit only the Attorney General to determine whether state disciplinary action may occur for violations of this regulation.(14)

    Although the regulation was intentionally written to be consistent with the constitutional rights of the criminal defendant and the ethics rules of the time,(15) the ABA, a special committee of the Conference of State Supreme Court Chief Justices, and most state ethics associations abhor the Justice Department's position and its regulation. It is inconceivable to these critics that Congress could have intended the Attorney General to regulate the ethical behavior of her attorneys when Congress enacted legislation authorizing states to license attorneys.(16) The Supreme Court, however, has held that Congress has given the Attorney General sufficient legislative authority to promulgate regulations which procedurally and substantively bind state and local governments.(17) Ultimately, most of the critics' outrage, though, is a residual response to the position former Attorney General Dick Thornburgh first officially advocated in 1989.(18) In the "Thornburgh Memo," the Attorney General unilaterally decided that no Justice Department attorney would be bound by state ethics rules and laws. It may now be difficult for these critics to review dispassionately and objectively the new Justice Department regulation, which bears only a slight resemblance to its extreme predecessor.

    In jurisdictions where the courts have been faced with the collision between constitutionally permissible investigative techniques and the ethics rule barring contact with represented persons, nearly all have held that the no-contact rule should not prevent the prosecutor's use of constitutionally sanctioned investigative procedures.(19) This position is at least consistent with the public's demand for a more aggressive campaign against crime.(20) So, even though more courts are chastising prosecutors for their overzealous advocacy,(21) disciplinary measures are very rarely taken against these prosecutors.(22)

    When ethics no-contact rules do not define who a "represented person" is, there is a potential conflict between the rule and constitutionally permissible investigative techniques. If a "represented person" is defined as one who has retained a lawyer regarding a particular matter but has not been charged or indicted in that matter, then the Constitution permits a prosecutor to have some contact with that "person." Before a "person" becomes a "party" to a matter, the full force of the government is not brought to bear on the matter. As such, the protections of the Constitution are not triggered to shield the "person" from the government, as is the case after the "person" becomes a "party."(23) Therefore, if "represented person" is not defined, or the ethics no-contact rule uses only "represented party" and inte-nds to cover "persons" too,(24) then constitutionally permissible investigative techniques may be prohibited by the ethics rule.

    This conflict between the ethics no-contact rule and constitutionally permissible investigative techniques is not new.(25) The new wrinkle is that not until August 4, 1994 had the DOJ promulgated a no-contact regulation for federal prosecutors. No longer is the DOJ's position just a preference espoused in an internal department memorandum, absolutely devoid of any legal authority. Now there is a federal regulation carrying the force of law governing federal prosecutors' ex parte contacts with represented persons and parties. As a result, there are new questions to ask. Does the DOJ have the authority to promulgate such a regulation? Does the regulation substantively change the ethical duties of federal prosecutors? Are the ethical standards of the legal professional damaged by this regulation? Who benefits from this new federal law?

    To address these inquiries, this Note will analyze the new DOJ regulation.(26) Section 11 briefly describes the ethics no-contact rule. Section III chronicles the birth and development of the debate over the Justice Department's position as reflected in the regulation. Section IV details the purpose, significant provisions and differences of the new DOJ regulation. Section V presents arguments made in support of and against the regulation. Section VI discusses these arguments and suggests should prevail. Section VII concludes the discussion with a comment on the conditions surrounding this debate.

  3. The Ethics Rule

    From as early as 1836 lawyers have been instructed to "never enter into any conversation with [an] opponent's client, relative to his claim or defence, except with the consent, and in the presence of his counsel."(27) This admonition against what is known as ex parte communications became part of the first codified legal ethics rules in the United States. The initial canons of professional ethics adopted by the ABA in 1908 included a no-contact rule.(28) Throughout the development of the rule, from its adoption in the ABA Code of Professional...

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