Uniform ethical regulation of federal prosecutors.

• Author: Tennis, Bradley T.

NOTE CONTENTS INTRODUCTION I. THE REGULATORY LANDSCAPE FOR FEDERAL PROSECUTORS A. Controversy Surrounding the Ethical Regulation of Federal Prosecutors B. The McDade Amendment II. REFORMING MCDADE A. Solutions Prioritizing State Law B. A Uniform National Code for All Lawyers III. THE CASE FOR A NATIONAL SYSTEM OF ETHICAL REGULATION FOR FEDERAL PROSECUTORS IV. FRAGMENTING REGULATORY AUTHORITY A. Who Makes the Rules ? B. Investigation and Enforcement CONCLUSION INTRODUCTION

In 1995, the Department of Justice launched "Operation Senior Sentinel" to uncover and dismantle telemarketing rings that were making fraudulent offers or bill collection calls to elderly citizens. (1) In one instance, a fraudster convinced an elderly woman to forward nearly $30,000 as an "up front fee" to recover $84,000 that she had lost in a previous scam. (2) To root out telecommunications fraud targeting the elderly, the Department of Justice enlisted the cooperation of AARP members, who became undercover witnesses for the FBI, recording conversations with telemarketers suspected of fraudulent activity. (3) The effort was wildly successful, leading to over four hundred indictments within the first few months. (4)

On May 9, 1992, a gunman shot and killed four people sitting on the porch of their home in Detroit; Loreal Roper, a three-year-old girl, was among them. (5) One of the victims, Alfred Austin, had been "marked for death" by a drug trafficking ring, the "Best Friends," after a defense attorney warned that Austin was planning to cooperate with the authorities. (6) Subsequently, a woman approached the federal prosecutors investigating the case and informed them that her son, a defendant represented by counsel, wished to cooperate but was afraid that his attorney would inform the Best Friends. (7) Prosecutors contacted the man and, after corroborating his story, moved for a new attorney to be appointed. (8) The cooperation of this man was a key break in the case, ultimately leading to the arrest and conviction of Loreal's killer. (9)

Under ethical regulations in place today, which make federal government lawyers "subject to State laws and rules" of any state in which they engage in "attorney's duties," (10) it is doubtful that federal prosecutors would be able to participate in programs such as Operation Senior Sentinel in those states that prohibit the recording of telephone conversations without the consent of both parties. (11) Nor would the Department of Justice be able to make the sort of ex parte contact with represented persons that led to the conviction of Loreal Roper's killer in certain states, despite DOJ policies to the contrary. (12)

Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rules has led to regulatory confusion and has inhibited the development of dear ethical expectations for federal prosecutors. Consequently, prosecutors may find themselves subject to ethical sanction for good-faith mistakes as to what ethical regulations require (13) or may shy away from legitimate exercises of prosecutorial authority where the ethical constraints are unclear.

It is imperative to develop ethical standards that take proper account of the position of federal prosecutors within our legal system. (14) The criminal justice system is capable of inflicting society's most severe sanctions and represents the public interest in justice. (15) Moreover, the role that the modern American prosecutor plays in the administration of that system is unique, not fully analogous to either a neutral factfinder or a zealous advocate. (16) The current regulatory framework is insensitive to the practical and ethical distinctions between federal prosecutors and other lawyers. A uniform, national ethical code, tailored specifically to federal prosecutors, is needed to ensure the development of consistent ethical norms consonant with the federal government's interest in serving justice through the criminal law.

Part I of this Note examines the key features of the regulatory scheme governing the conduct of federal prosecutors. Particular attention is paid to the McDade Amendment, which, although it did not effect serious changes in the de facto regulation of prosecutors, has served to highlight and entrench the inconsistencies and regulatory difficulties of the present system. Part II considers some of the proposals for reform that have emerged in the years following the adoption of the McDade Amendment. Although they relieve many of the most serious difficulties of the post-McDade regime, these proposals either fail to ensure consistency in federal criminal enforcement or impinge too greatly on other important normative considerations.

An understanding of the unique structural and political realities of the enforcement of federal criminal law is essential to the development of a substantive body of ethical regulation that adequately balances the need for guiding prosecutorial discretion with the government's interest in vigorously investigating and prosecuting federal crimes. Part III makes the case for a uniform national codification of ethical rules specifically tailored to the demands of federal prosecution. Such a code would allow detailed consideration of the needs of federal prosecutors, permit consistent application and enforcement of ethical rules across jurisdictions, and intrude minimally on the authority of states to regulate lawyers who they have licensed to practice. Finally, Part IV considers the capacity of various institutions-including the Department of Justice, federal courts, and Congress--to develop and enforce such a code and suggests a distribution of rulemaking and enforcement power that allows the development of consistent ethical rules while preserving, as much as possible, traditional claims of regulatory authority.

1. THE REGULATORY LANDSCAPE FOR FEDERAL PROSECUTORS

   Control over the administration of criminal justice has historically been entrusted to a diverse set of actors spanning all branches of government, at both the state and federal level. Even within the executive branch, control over the criminal process was fairly diffuse in the early Republic. (17) Indeed, from the creation of the office in 1789 until 1820, federal district attorneys were not subject to the supervision of any executive branch official. (18) Today, the ethical conduct of federal prosecutors remains subject to numerous regulatory bodies, including federal courts, state bar associations, and the Department of Justice itself. Each of these bodies has developed a distinct set of standards and policies that constrain the conduct of federal prosecutors, and each is independently capable of issuing sanctions for ethical violations. As a result, federal prosecutors have no clear guidance to inform their decisionmaking and instead find themselves subject to a host of potentially conflicting ethical regulations and guidelines.

   1. Controversy Surrounding the Ethical Regulation of Federal Prosecutors

      The debate over the appropriate mechanisms for the ethical regulation of federal prosecutors has focused on a conflict between the Department of Justice and the courts over whether the former could suspend the application of the "no-contact rule" to federal prosecutions. The no-contact rule, codified in Rule 4.2 of the ABA Model Rules of Professional Conduct, provides that 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 to do so by law." (19)

      In 1989, Attorney General Richard Thornburgh issued a memorandum asserting that Disciplinary Rule 7-104(A)(1) of the ABA Model Code of Professional Responsibility, (20) Model Rule 4.2, and their various state professional code analogues were not binding on federal prosecutors. (21) Although Attorney General Thornburgh conceded that compliance with state and local ethical requirements will rarely be precluded by federal duties, (22) he asserted that federal regulations must control "in the rare instance where an actual conflict arises." (23) To support this conclusion, the Thornburgh Memo relied primarily on the Supremacy Clause and separation-of-powers principles, arguing that state and local rules cannot interfere with the regulations adopted by the federal government. (24) The Thornburgh Memo's conclusions were subject to harsh criticism, (25) and the aggressive contention that federal courts could not hold federal prosecutors to a more exacting standard than DOJ regulations even caught the attention of Congress. (26) Ultimately, however, no overriding legislation was adopted. (27)

      In 1994, Attorney General Janet Reno officially codified the conclusions of the Thornburgh Memo by issuing a series of comprehensive regulations governing the ethical responsibility of federal prosecutors and establishing disciplinary provisions. (28) These regulations, known collectively as the "Reno Rule," took a very narrow view of the authority of states to subject federal government lawyers to their own ethical regulations (29) and, in some cases, authorized conduct expressly forbidden by the majority of state ethical codes. For example, the regulations restricted the no-contact rule to parties deemed to have some ability to influence the decisionmaking of an organization. (30) In substance, the Reno Rule was not a marked departure from the Thornburgh Memo: both promised compliance with state ethical rules in general but contemplated a narrow interpretation of those rules to protect federal interests. (31) However, in one respect, the Reno Rule was an unprecedented expansion of the Department of Justice's role in...