Regulating Federal Prosecutors: Why Mcdade Should Be Repealed

• Publication year: 2010

Regulating Federal Prosecutors: Why McDade Should Be Repealed

Paula J. Casey

Introduction

The McDade Amendment,[1] a federal law subjecting government attorneys to state attorney discipline rules, became effective in April 1999. Critics of the legislation predicted that the legislation would create serious problems in law enforcement.[2] Within a matter of months, those predictions proved true.

On August 17, 2000, the Oregon Supreme Court announced that Oregon Disciplinary Rule 1-102(A)(3), which prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation,"[3] provides no exception for government lawyers supervising covert criminal or civil investigations.[4] The result was immediate and dramatic as local, state, and federal government attorneys ceased participation in undercover law enforcement activities.[5] The investigation of a worldwide narcotics conspiracy involving international money laundering languished in the United States Attorney's Office in Oregon for months.[6] Several qui tam investigations were placed on hold.[7]

Attempts to resolve this dilemma through amendment of the disciplinary rules,[8] federal litigation,[9] state legislation,[10] and federal legislation[11] failed. Eighteen months lapsed before the Oregon Supreme Court adopted an exception to DR 1-102(A)(3) to permit government attorneys to resume participation in undercover law enforcement activities.[12]

The Oregon experience is not necessarily the final chapter. Because Congress ceded disciplinary authority of federal attorneys to the states,[13] Department of Justice and other federal attorneys may face similar disciplinary challenges in other jurisdictions over the same issue or other issues. The potential cost to the public could be significant in terms of wasted resources and lost law enforcement opportunities.

Part I of this article will review the history of attorney discipline in the United States, including the origins of DR 1-102(A)(4).[14] Part II will then review cases and events that led to the passage of the federal law that subjects federal prosecutors to federal district court and state ethical rules. Part III will explore the Oregon Supreme Court decision in In re Gatti and the consequences of the court's reasoning. Next, Part IV will consider the history and importance of undercover operations, particularly to the enforcement of criminal law. Finally, the article will analyze the resolution of the problem in Oregon, provide justifications for exceptions to the general rule for federal attorneys, and offer an argument for a federal solution.

I. Attorney Discipline in the United States

Until the Twentieth Century, courts regulated the conduct of lawyers in the United States.[15] In the late nineteenth century, several bar associations developed advisory codes of conduct. The 1887 Code of Ethics of the Alabama State Bar Association was the model for the Canons of Professional Ethics of 1908, the first ethics code proposed by the American Bar Association.[16] The 1908 Canons, which originally consisted of thirty-two flowery statements that commanded lawyers to deport themselves as gentlemen, were adopted by many bar associations and enforced in disciplinary proceedings in some jurisdictions.[17]

The Golden Rule echoes throughout the 1908 Canons. Many of the canons address the need for lawyers to be candid and fair in every aspect of their professional lives.[18] As one author explained in his treatise on legal ethics:

There are a number of canons, partially interrelated, which deal with the duty of lawyers to be candid and fair with their clients, with other lawyers, with the courts, and in their professional conduct generally. They are, of course, but another aspect of the fact that the law is a service profession and not a business. A lawyer is not only under obligation to refrain from making misrepresentations, but he also is denied the luxury of material concealment generally regarded in the trades as "smart business." There are many situations in which there is a duty upon a lawyer to make full disclosure where there would be no such requirement in a business transaction.[19]

The 1908 Canons contained no language addressing the specific duties and obligations of prosecutors or government attorneys but instead focused on the conduct of attorneys representing private clients in litigation.[20] The lasting significance of the 1908 Canons is that many of the ideas expressed therein were incorporated into later ethics rules that remain in effect today.[21]

Several efforts were made to revise the 1908 Canons,[22] but none met with success until the American Bar Association's Model Code of Professional Responsibility was completed in 1969. Within five years of the completion of the final draft of the Code, all but one state had adopted or taken steps to adopt it.[23] Although much of the content of the 1908 Canons was assimilated into the new Code, new sections were added,[24] and the language was more concisely drafted.

The 1969 Code was attacked from its introduction,[25] and a review commission was appointed to study the problems.[26] The commission produced the 1983 Model Rules of Professional Conduct. With one exception, all jurisdictions have adopted the Model Rules in some form.[27]

While the 1908 Canons contained "inspiration and prohibition,"[28] they were not specific in defining violations. For example, Canon 29 urged lawyers to "uphold the honor and to maintain the dignity of the profession."[29] Canon 32 directed lawyers to deserve a reputation for "fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen."[30] The 1969 Code expressed the same sentiments, but stated them as a prohibition in Disciplinary Rule 1-102(A)(4): "A lawyer shall not: Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." The commission that drafted the Model Rules omitted the language of DR 1-102(A)(4), but the language was reinserted by the ABA House of Delegates when it adopted the Model Rules.[31]

The laudable sentiment that lawyers should be ethical and above-board in dealing with the courts, clients, and the public in general thus became embodied in a rule that was originally targeted at lawyers in private practice. Yet it was a rule that exposed all lawyers, including prosecutors, to disciplinary action. Still, the notion that lawyers should refrain from deceit and misrepresentation was a notion with which few would argue, at least until a state court's interpretation of the rule brought federal law enforcement to a halt.

II. Who Disciplines Federal Prosecutors?

States have historically regulated the conduct of attorneys,[32] but the question of who had ultimate authority to discipline federal prosecutors was the subject of debate, litigation, and legislation for years.[33] Federal prosecutors must be licensed in a state to practice before the federal courts. Most district courts require that attorneys be licensed by the state in which the district court sits.[34] In addition to being subject to the disciplinary authority of the state that issued his license and to the rules of the federal court in which he appears,[35] a federal prosecutor must also comply with the rules promulgated by the Department of Justice.[36]

The lack of a definitive answer to the question of which entity had ultimate control of prosecutors' conduct left prosecutors guessing about appropriate courses of action and vulnerable to attacks if they guessed wrong.[37] Various issues fueled the debate,[38] with the issue of contacts with represented parties[39] being perhaps the most controversial.[40] An opinion from the Second Circuit Court of Appeals concerning the application of the "no contact" rule in criminal investigations prompted Attorney General Richard Thornburgh to preempt the disciplinary issue by disseminating the Thornburgh Memorandum.[41] Relying on the "authorized by law" exception to the "no contact" rule, Thornburgh declared that "the Department will resist, on supremacy clause grounds, local attempts to curb legitimate federal law enforcement techniques."[42] The memorandum was immediately criticized as an attempt to exempt federal prosecutors from the ethical restrictions that bind other attorneys.[43] Thornburgh defended his memorandum, saying it "was designed to tell prosecutors that the Department would stand by them as long as their actions comported with our lawful and authorized practice, and that the Department was prepared to give advice in each instance where the conflict was perceived."[44]

The Department of Justice attempted to enact a rule that embodied the content of the Thornburgh memorandum.[45] Thornburgh's successor, Attorney General Janet Reno, took a more conciliatory tone in attempting to draft a rule that would promote federal investigative interests and protect federal prosecutors while appeasing the critics of the Thornburgh memorandum.[46] Although Reno managed to publish a contacts rule in 1995 that purported to preempt state and local rules,[47] she failed to convince at least one circuit court of appeals that federal attorneys should be exempt from state-imposed standards.[48]

The Department's contacts rule was not the final answer to the question of who has ultimate disciplinary authority over federal prosecutors. Congress trumped the Department's effort to claim ultimate authority to prescribe ethics parameters for federal prosecutors by enacting the McDade Amendment, which went into effect in April 1999.[49] The McDade Amendment subjects government attorneys to state laws and rules as well as to local federal court rules governing attorney conduct and ethics.[50] The legislation, which does not specifically mention the contact rule, was widely believed to be both a response to the contact rule and an act of revenge on the part of Congressman McDade, who was acquitted of racketeering charges after a...