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39910 Federal Register / Vol. 59. No.

149 / Thursday, August 4, 1994 / Rules and Regulations

DEPARTMENT OF JUSTICE enforcement investigations who are persons are represented by counsel. It
known to be represented by counsel, allows government attorneys to
28 CFR Part 77 and when they communicate with other continue to make or direct undercover
represented persons. or overt contacts with individuals and
lAG Order No. 1903-941
EFFECTIVE DATE: September 6.1994. organizations represented by counsel for
Communications With Represented FOR FURTHER INFORMATION CONTACT: the purpose of developing factual
Persons F. Mark Terison. Senior Attorney, Legal information up until the point at which
Counsel, Executive Office for United they are arrested or charged with a
AGENCY: Department of Justice. States Attorneys. United States crime or named as defendants in a civil
ACTION: Final rule. Department ofJustice, (202) 514-4024. law enforcement action. However, the
This is not a toll-free number. regulation generally does not permit
SUMMARY: This final rule governs the federal prosecutors to attempt to
circumstances under which attorneys SUPPLEMENTARY INFORMATION: negotiate plea agreements, settlements,
employed by the Department of Justice I. Background or similar arrangements with
("Department") may communicate with individuals represented by counsel
persons known to be represented by This final rule on the subject of
communications with represented without the consent of their attorneys.
counsel in the course of law This regulation also precludes. with
enforcement investigations and persons culminates a lengthy
rulemaking process in which a proposed certain narrow exceptions, any contacts
proceedings. with represented parties after an arrest,
The purpose of this rule is to impose rule on the same subject was issued
three separate times for comment. See indictment. or the filing of a complaint
a comprehensive. clear, and uniform set
59 FR 10086 (Mar. 3. 1994); 58 FR 39976 on the subject matter of the
of regulations on the conduct of representation.
government attorneys during criminal (July 26, 1993); and 57 FR 54737 (Nov.
Additionally, the Department plans to
and civil investigations and 20,1992). Comments received after the add provisions to the United States
enforcement proceedings. The rule is publication in November 1992 and in
Attorneys' Manual that will set forth
intended to ensure that government July 1993 of earlier versions of the rule
further guidance. The Departm<\pt
attorneys adhere to the highest ethical resulted in major substantive changes intends to prohibit overt approaches by
standards. while eliminating the being made to the rule. As a result, a federal attorneys to represented targets
uncertainty and confusion arising from new proposal reflecting these changes of criminal or civil enforcement
the variety of interpretations of state was published on March 3, 1994. During
proceedings without the consent of
rules. some of which have been the most recent comment period, the
counsel. unless certain enwnerated
incorporated as local court rules in a Department received many thoughtful
exceptions are met. The planned
number of federal district courts. comments from private attorneys. local provisions also will generally require
The rule establishes, prospectively. a bar organizations. state courts, federal
that government attorneys receive
general prohibition, subject to limited prosecutors. and others. The
approval from their supervisors before
enumerated exceptions, against contacts Department closely scrutinized all of communicating with any represented
with "represented parties" without the these comments. After considering those party or represented target.
consent of counsel. This prohibition comments, the Department made several Since early in this century, the rules
derives from the American Bar relatively minor amendments to the of professional conduct that govern
Association ("ABA") Code of proposed rule. TherefoffJ, the final rule attorneys have required that lawyers for
Professional Responsibility and its remains in substantially the same form one party in a dispute communicate
successor, the ABA Model Rules of as the proposed rule issued in March only through an adverse party's lawyer,
Professional Conduct. The rule, on the 1994. rather than directly. DR 7-104(A)(1) of
other hand. generally permits The final rule reflects the
the ABA Model Code of Professional
investigative contacts with "represented Department's commitment to fostering Responsibility provides:
persons": that is, individuals or ethical behavior consistent with the
organizations that are represented by principles informing DR 7-104(A)(1) of A. During the course of his representation
counsel but that have not yet been the ABA Code of Professional of a client a lawyer shall not:
Responsibility and Rule 4.2 of the 1. Communicate or cause another to
named as defendants in a civil or communicate on the subject of the
criminal enforcement proceeding or Model Rules of Professional Condl!ct, representation with a party he knows to be
arrested as part of a criminal while setting forth clear and uniform represented by a lawyer in that matter unless
proceeding. However, ,he rule does not national guidelines upon which he has the prior consent of the lawyer
permit contacts with represented government attorneys can rely in representing such other party or is authorized
persons without the consent of counsel carrying out their responsibilities to by law to do so.
for the purpose of negotiating plea enforce federal laws. (The term Rule 4.2 of the ABA Model Rules states:
agreements, settlements, or other similar "attorney for the government" is In representing a client. a lawyer shall nol
legal arrangements. defined in paragraph 77.2(a). and where communicate about the subject of the
In addition, the Department intends to this phrase, or a variant of it, such as representation with a party the lawyer knows
issue substantial additions to the United "government attorney," is used to be represented by another lawyer in the
States Attorneys' Manual ("Manual") to elsewhere in this commentary, it has the matter. unless the lawyer has the consent of
provide additional direction to meaning set forth in paragraph 77.2(a), the other lawyer or is authorized by law to
Department attorneys when they deal unless the context clearly indicates do so.
with represented individuals and otherwise, and it is typically used Disciplinary authorities in all 50 states
organizations, in order to accommodate interchangeably with "Department and in the District of Columbia have
more fully the principles and purposes attorney. "). In essence. this regulation adopted one of these rules, or a similar
underlying the state bar rules. Those permits federal prosecutors and agents prohibition. Underlying these rules is
provisions will further restrict to continue to conduct legitimate the recognition that when two parties in
government attorneys when they contact criminal and civil investigations against a legal proceeding are represented, it is
targets of criminal or civil law all individuals. whether or not those gen'>rally unfair for an attorney to
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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39911

circumvent opposing counsel and e.g., United States v. Ryans, 903 F.zd could receive a -:::ommendation for
employ superior skills and legal training 731.739 (10th Cir.), cert. denied. 498 effective law enforcement while the
to take advantage of the opposing party. U.S. 855 (1990); United States v. other member, licensed in a different
At the same time. the courts have long Fitterer, 710 F.zd 13Z8, 1333 (8th Cir.), state, might be subject to state discipline
recognized that government law cert. denied, 464 U.S. 852 (1983); United for the same conduct.
enforcement agents must be allowed States v. Kenny, 645 F.2d 1323, 1339 In light of these circumstances, the
broad powers, within constitutional (9th Cir.), cert. denied, 452 U.S. 920 Department has concluded that a
limits, to investigate crime and civil (1981); United States v. Weiss, 599 F2d compelling need exists that warrants a
violations of police and regulatory laws. 730.739 (5th Cir. 1979); and United uniform federal rule to reconcile the
These powers properly include the States v. Lemonakis, 485 F.2d 941. 955- traditional rule against contacts with a
authority to conduct undercover 56 (D.C. Cir. 1973), cert. denied, 415 represented party with the obligation of
operations and to interview witnesses, U.S. 989 (1974). Only the Second the Department of Justice to enforce the
potential suspects, targets, and even Circuit has suggested otherwise. See law vigorously. Indeed, absent a
those defendants who waive their right United States v. Hammad. 846 F.2d 854. uniform federal rule, prosecutors have
to remain silent. Although the Fifth and amended. 858 F.2d 834 (2d Cir. 1988), been moved on occasion to reduce their
Sixth Amendments significantly restrict cert. denied, 498 U.S. 871 (1990). participation in the investigative phase
contacts with defendants after their However, that suggestion was muted of law enforcement so as to leave federal
initial appearance before a judge or after signif:::antly in a revised opinion by the agents unfettered by state disciplinary
indictment, these constraints generally Second Circuit that "urge[dl restraint in rules that were never intended to govern
do not apply before a person has been applying the rule to criminal police behavior. Such a retreat from the
taken into custody or charged in an investigations," 858 F.2d at 838, and field by prosecutors serves neither
adversary proceeding. Sound policies ultimately concluded that "a prosecutor efficiency nor the interest in elevating
support this substantial power of police is 'authorized by law' to employ legal compliance and ethical standards
to investigate. The general public, legitimate investigative techniques in in all phases of law enforcement.
victims of crime, and even pC'tential conducting or supervising criminal Furthermore, the disciplinary rules
suspects have a strong interest in investigations * * *" Id. at 839. By themselves invite promulgation of a
vigorous inquiry by law enforcement contrast, state courts and state bar regulation such as this one. Nearly all
officers before arrest or the filing of organizations have varied widely in the states have adopted rules that
charges. their interpretation of the scope of the include an "authorized by law"
As long as investigations were treated prohibition on contacts embodied in DR exception. This final rule, a duly
as within the province of the police 7-104, Model Rule 4.2, and their promulgated reguiation, is intended to
alone. the traditional rule forbidding analogs. Some examples of the varying constitute "law" within the meaning of
counsel from directly contacting interpretations are detailed below. those exceptions.
represented persons did not come into Uncertainty about the scope and Finally. the Department has long
conflict with legitimate law enforcement applicability of DR 7-104, Model Rule maintained, and continues to maintain.
activities. In recent years, however. the 4.2. and their state counterparts has that it has the authority to exempt its
Department of Justice has encouraged directly affected the investigative attorneys from the application of DR 7-
federal prosecutors to playa larger role activities of agents, including Federal 104 and Model Rule 4.2 and their state
in preindictment, prearrest Bureau of Investigation and Drug counterparts. Furthermore, the
investigations. Some of this increased Enforcement Administration personnel, Department maintains that whether, and
involvement stems from the wider use who work with prosecutors. The to what extent. such prohibitions should
of law enforcement techniques. such as expansive application of these rules in apply to Department attorneys is a
electronic surveillance. which require some jurisdictions may have the effect policy question. See Ethical Restraints
the preparation of legal filings. Also, of blocking preindictment interviews or of the ABA Code of Professional
complex white collar and organized undercover operations that most courts Responsibility on Federal Criminal
crime investigations necessitate more have held permissible under federal Investigati0ns. 4B Dp. D.L.C. 576,577
intensive engagement of lawyers. who constitutional and statutory law. (1980). In light of the fact that all 50
present such cases to grand juries. Most Additionally, the heightened threat of states and the District of Columbia have
important, greater participation of disciplinary action that accompanies the adopted some form of a prohibition on
lawyers at the preindictment stage of expansive application of these rules has contacts with represented parties, and
law enforcement has been regarded as created a chilling effect on prosecutors in view of the long history of those
helpful in assuring that police responsible for directing these rules. the Department believes that its
investigations comply with legal and legitimate investigative activities. attorneys should adhere to the
ethical standards. These problems are compounded principles underlying those rules to the
This extension of the traditional when federal attorneys assigned to the maximum extent possible, consistent
prosecutor's responsibility has been a same case are members of different state with the Department's law enforcement
salutary development. One by-product. bars. Under federal law, a Department responsibilities. Therefore, even though
however. has been uncertainty about attorney must be a member in good the Department has the authority to
whether the traditional professional standing of a state bar, but he or she exempt its attorneys from the reach of
limitation on attorney contacts with need not belong to the bar in each state these rules. the Department has decided
represented parties should be viewed as in which he or she is practicing for the not to implement a wholesale
a restriction upon prosecutors engaged government. Therefore, prosecution exemption.
in investigations and, by extension, the teams often comprise attorneys admitted Rather, this regulation attempts to
agents with whom they work. The to different bars. The application of reconcile the purposes underlying DR
overwhelming preponderance of federal different state disciplinary rules to these 7-104 and Model Rule 4.2 with effective
appellate courts have held that the individuals creates uncertainty, law enforcement. Recognizing the
restriction on contacts with represented confusion, and the possibility of importance of the attorney-client
persons does not apply at the unfairness. Indeed, one member of a relationship and the desirability that an
preindictment investigation stage. See. two-member federal prosecution team individual who is represented by
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39912 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations

counsel be fully advised by counsel arrest, the planned Manual changes General shall have exclusive authority
before negotiating legal agreements, this provide that, as a matter of internal to determine these rules. Further, the
regulation provides that federal policy guidance, federal prosecutors Department's rules are intended fully to
attorneys may not negotiate plea generally should not make overt preempt and supersede the application
bargains, settlement agreements, contacts with represented targets of of state and local court rules relating to
immunity agreements, or similar investigations. However, the planned contacts by Department of Justice
arrangements without the consent of the Manual provisions permit overt contacts attorneys when carrying out their
individual's attorney. There is a with a represented target when initiated federal law enforcement functions. Only
heightened risk in this context of the by the target; when necessary to prevent if the Attorney General finds that a
prosecutor's superior legal training and death or physical injury; when the Department attorney has willfully
specialized knowledge being used to the relevant investigation involves ongoing violated these new rules would that
detriment of the untutored layperson. or additional crimes, or different crimes attorney continue to be subject to the
Thus, the regulations comport with the from that to which the representation full measure of state disciplinary
principal purpose of DR 7-104 and relates; or when a United States jurisdiction.
Model Rule 4.2 by insisting that the Attorney or an Assistant Attorney The Department is confident that,
individual's attorney participate in General expressly concludes, under all taken together, this regulation. the
these types of negotiations. Further, of the circumstances, that the contact is planned Manual amendments, and this
even when contacts are allowed, the needed for effective law enforcement. supplemental information will promote
regulation is designed to minimize any Finally, the regulation and planned the public interest in effective law
intrusion into the attorney-client Manual provisions also address when a enforcement in a manner that also
relationship. At the same time. this government attorney may communicate conforms to the highest standards of
regulation does permit direct contacts at with an employee, officer, or director of legal ethics.
the preindictment, prearrest a represented corporation or The procedures established by this
investigative stage with any individual, organization without the consent of rule apply to conduct occurring after the
whether or not he or she is represented counsel. The regulation generally rule's publication.
by counsel. The regulation is drafted to prohibits a government attorney from II. Rulemaking History
conform to the approach of most federal communicating with a current, high·
level employee of a represented On November 22, 1992, the
appellate courts that have considered Department of Justice published in the
the matter. See, e.g.• United States v. organization who participates as a
"decision maker in the determination of Federal Register a proposed rule
Ryans, 903 F.2d 731 (lOth Cir.) regarding communications with
(discussing cases), cert. denied, 498 U.S. the organization's legal position in the
proceeding or investigation of the represented persons. 57 FR 54737. By
855 (1990), and other cases cited December 21,1992, the close ofthe
previously in connection with the subject matter" once the organization
has been named as a defendant in a comment period, the Department had
discussion of preindictment contacts. received comments from 20 sources.
The Department believes that public criminal or civil law enforcement
proceeding. Further. the contemplated The Department was concerned that
policy and effective law enforcement not all inkrested parties had received
would not be served if the simple act of Manual provisions would generally
prohibit contacts without the consent of sufficient opportwlity to respond during
retaining an attorney could serve to the ini al C( ".'1rnent period. Noting "the
exempt a person from lawful, court- counsel with controlling individuols of
organizations that have not yet bf,en complo;x ami Impflrtant nature of the
approved investigative techniques. The rule to tl.e criminal and dvil justice
Department believes that it is named as defendants but are targets of
federal criminal or civil law systems and the licenses and
inappropriate to alter investigative livelihoods ofits attorneys," on July 26,
enforcement investigations.
techniques based upon an individual's This final rule recognizes that state 1993. the Department reissued the
financial ability to retain counsel before courts and disciplinary bodies generally proposed rule for an additional 30·day
the point at which an indigent would be play the primary role in regulating the comment period. 58 FR 39976. The
afforded court-appointed counsel. conduct of all attorneys. including those Department received 219 comments
This regulation and the planned who work for the federal government. following this second publication of the
changes to the United States Attorneys' The Department also recognizes that proposed rule.
Manual also will give effect to other with respect to most matters, On March 3, 1994, the Department
important aspects of the bar rules Department attorneys are subject to the issued a new proposed rule governing
against contacts with represented bar rules and disciplinary proceedings the same subject matter for an
parties. For example, the regulation of the states in which they are licensed. additional 30-day comment period. 59
precludes fede:al attorneys from However, the Department believes it FR 10086. In response to concerns
disparaging an individual's counselor must be the final arbiter of the scope of raised by bar organizations, bar counsel,
from attempting to gain access to policing with respect to ex parte state and federal judges, and others, that
attorney-client confidences or lawful contacts involving federal prosecutors, proposal reflected substantial changes
defense strategy. The guidelines that the subject to the Constitution and the laws from the earlier prfJposals. This
Department intends tJ add to the ofthe United States. As noted above. publication of the proposed rule was
Manual also will make clear that once because of the expanded participation of accompanied by the issuance of
an individual is ;'"1 a likeiy adversarial federal prosecutors in preindictment companion provisions that the
situation with the government and has investigations, and the trend of state Department intends to include in the
retained an attorney to represent himself courts increasingly to apply DR 7-104 United States Attorneys' Manual, which
or herself with respect to the particular and Model Rule 4.2 expansively against set forth certain more restrictive policies
subject matter under investigation. the federal prosecutors. these rules have with regard to overt investigatory
government attorney must take greater affected and circumscribed LlIe power of communica~ions. The discussion that
care before making any ex parte federal officials to carry out their legally follows summarizes the issues that were
contacts. While the regulation mandated responsibilities. This raised in response to the Department's
authorizes most communications before regulation provides that the Attorney latest publication of the proposed rule.
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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39913

III. Summary of Comments Received A. The Need for the Rule. One state Although an anti-contact rule is in
During the most recent comment court judge, one federal judge, five effect in nearly all jurisdictions, it is not
period, which closed on April 4. 1994, individuals, and six organizations interpreted uniformly. Among other
timely comments were received from 31 criticized the proposed rule as holding things, jurisdictions differ as to whether
sources, including nine individuals, government attorneys to lower ethical the anti-contact rule applies in the
nine organizations, four state court standards than those that apply to all investigatory stage, compare United
judges, one federal court judge, five U.S. other attorneys. This comment wac States v. Ryans, 903 F.2d 731, 739 (10th
Attorney's Offices, two Department of formulated in a variety of ways, with the Cir.), cert. denied, 498 U.S. 855 (1990)
Justice components, and one other following as illustrative examples: with United States v. Hammad, 858
"[t]he rules apply to everyone, and it F.2d 834, 839 (2d Cir. 1988), cert.
federal agency. Of the 31 comments
received, nine comments supported should especially apply to attorneys in denied, 498 U.S. 871 (1990); whether
Government service;" "I do not know the rule applies to prosecutors, compare
promulgation of the proposed rule, 20
why it is that the department somehow Matter of Doe, 801 F. SU,Jp. 478 (D.N.M.
comments opposed the rule. and two
thinks [it] can exempt [its] attorneys 1992) with District of Columbia Rules of
other comments failed to take any
frorr. the rules of conduct that all of the Professional Conduct Rule 4.2 cmt. 'II 8;
definitive position on the proposed rule
lawyers must abide by;" "[Department] whether the rule applies to former
as a whole. As with previous versions
lawyers should be treated as subject to employees of a represented corporate
of this rule. many writing in opposition
the same rule of law that applies to the party, compare Public Servo Elec. & Gas
to the Department's proposal argued
conduct of all other lawyers;" and V. Associated Elec. & Gas, 745 F. Supp
that it unfairly permits the Department
"[flairness simply will not tolerate 1037,1042 (D.N.J. 1990) with Polycast
to hold its attorneys to ethical rules
exalting the role of one adversary's Technology Corp. v. Uniroyal, Inc., 129
different from those that apply to ali advocate above the other."
other attorneys. Other opponents of the F.R.D. 621, 628 (S.D.N.Y. 1990); and
In response to these comments, the whether the rule applies to all corporate
proposed rule-most notably the ABA Department finds it important, first, to
and a special committee of the employees who could make admissions
make clear that this rule is not designed on behalf of the corporation or only to
Conference of State Supreme Court to diminish the ethical responsibilities
Chief Justices---{;hallenged the proposed employees who belong to a so-called
of government attorneys; it is intended "control group." Compare Model Rules
rule on constitutional and statutory to clarify those responsibilities. The
grounds, arguing that t~e Department of Professional Conduct Rule 4.2 cmt.
current situation, in which state contact (1983) with Wright by. Wright v. Group
lacks authority to preempt state ethics rules purport to govern the substantive
rules or to supersede local federal Health Hasp., 691 P.2d 564 (Wash.
conduct of federal law enforcement 1984). The lack of uniformity in
district court rules. Those writing in attorneys, has proven unsatisfactory
support of the proposal generally interpreting existing anti-contact rules
because the standards of ethical conduct has created concern among government
praised it ior bringing certainty and are uncertain and subject to
clear guidance to an area that previously attorneys of inadvertently running afoul
unpredictable and varying uf state court or federal district court
has been unclear and disruptive of law interpretations. This uncertainty as to
enforcement functions. rules. The thre&t of disciplinary
what constitutes appropriate conduct by proceedings (and the possible resulting
The Department has considered Department attorneys has interfered
carefully each comment and appreciates loss of license and livelihood) against a
with the responsible exercise of the law
the thoughtfulness reflected in them. government attorney engaged in
enforcement duties of Department
The Department's responses to those legitimate law enforcement activities
attorneys. The basic purpose of this
comments are discussed below, either in has had a chilling effect on the
regulation is to provide a uniform rule
the "General Comments" section or in responsible exercise of law enforcement
of ethics regarding contacts with
the context of the particular section or duties. Many federal prosecutors who
represented persons that can be
paragraph to which they pertain as f.'art submitted comments in connection with
consistently and predictably applied. By
oithe "Section-by-Section" analyf'is. All the earlier versions of this rule stated
daing so, the regulation will allow all
revisions adopted in the final rule arf:J Department attorneys involved in a that they feel compelled to refrain from
indicated. federal law enforcement proceeding to authorizing or participating in
understand and abide by applicable legitimate and ethical law enforcement
IV. General Comments activities because of the current
standards. There is simply no basis for
Comments were received on the believing that there will be a reduction uncertainty as to the acceptability of
follOWing thn,e general issues: (1) ihe in compliance with ethical standards by various ex parte contacts.
need for the rule; (2) the constitutional federal prosecutors. To add to the confusion inherent in
and statutory authority for the rule; and Many commenters opposing the the current situation, the Department's
(3) the sufficiency of the rule's internal proposed rule dismissed as unnecessary attorney staff consists of members of
enforcement merhanisms. These general the creation of a uniform set of rules for many different state bars who
comments essentially repeated Department attorneys. Some commented commonly appear in multiple
comments received in response to that the ex parte contact rules currently jurisdictions. Under the Model Rule's
previous versions of the proposed rule. in place do not vary significantly, given approach, an attorney practicing in a
After careful reconsideration of these that virtually every jurisdiction has jurisdiction in which he or she is not a
recurring issues. the Department's adopted some version of the ABA's anti- member of the bar remains subject to the
position on many of these subjects-in contact rule. Other commenters argued jurisdiction of the bar of which he or
particular, the constitutional and that, in any event, state and local ethics she is a member, but if the rules in the
statutory basis for this rule and the need rules do not interfere substantially with two places differ, principles of conflict
for and advisability of such a rule- federal law enforcement activities of laws may apply. Model Rules of
remains the same. Therefore, the because only in rare instances have Professional Conduct Rule 8.5 and cmt.
Department's response in this section federal prosecutors actually been (1983). As a result, when state anti-
builds upon responses published in investigated by a state disciplinary contact rules purport to govern the
previous commentaries. authority. conduct of federal attorneys. the
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39914 Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 I Rules and Regulations

question of which rule governs the under VIe Department's rules will be contact rule does not apply prior to
conduct of Department lawyers may appropriate under existing ethical rules indictment, and use of undercover
often be complicated. Indeed, as was as well. informant did not violate rule in any
noted in the "Background" section of Furthermore, the content of this rule event), cert. denied, 415 U.S. 989 (1974);
this commentary, government attorneys derives largely from DR 7-104 and In re U.S. Dept. of Justice Antitrust
may be subject to substantially different Model Rule 4.2 and is wholly consistent Investigation, 1992-2 Trade Cases (CCH)
rules when they are working alongside with the principles underlying these lj\ 69,933, at 68,469 (D. Minn. 1992)
one another on the same case. One rules. This regulation grants greater (Minnesota's Rule 4.2 held inapplicable
commenter proposed that instead of latitude for lawyer communications because "[tlhe word 'parties' in Rule 4.2
isst:ing a uniform contacts rule for with a represented "person" during the indicates the presence of a lawsuit" and
Department attorneys, the Department investigative phase of law enforcement "[t]he present controversy relates to an
should encourage its attorneys to than with a represented "party" after investigation, not a lawsuit"); United
practice only in a given jurisdiction and adversarial proceedings have States v. Infelise, 773 F. Supp. 93, 95 n.3
to obtain bar membership in that commenced. This distinction appears in (N.D. Ill. 1991) (DR 7-104(A)(1) "speaks
jurisdiction. However, Congress has the texts of DR 7-104 and Model Rule in terms of communications with a
made clear that Department attorneys 4.2, which prohibit only 'party', suggesting that the rule is to be
should be able to practice in different communications with "a party" the applied only when adversarial
jurisdictions so long as they are a lawyer knows to be represented by proceedings have been initiated");
member of some state bar, and there is another lawyer in the matter. This United States v. Western Electric Co.,
a significant federal interest in distinction also accords with the great 1990-2 Trade Cases (CCH) en 69,148, at
preserving the Department's ability to weight of federal court interpretations of 64,314 & n.6 (D.D.C. 1990); United
assign its attorneys wherever there are the state ethics rules. See Ryans, 903 States v. Buda, 718 F. Supp. 1094, 1096
law enforcement needs to be met. This F.2d at 739 ("We are not convinced that (W.D.N.Y. 1989); United States v.
uniform rule regarding contacts with the language of [the anti-contact rule] Chestman, 704 F. Supp. 451,454
represented persons achieves calls for its application to the (S.D.N.Y. 1989), rev'd on other grounds,
consistency and high ethical standards investigative phase of law enforcement" 903 F.2d 75 (2d Cir. 1990), aff'd in part,
without hampering federal law because "the rule appears to 947 F.2d 551 (2d Cir. 1991) (en banc);
enforcement activity. contemplate an adversarial relationship United States v. Galanis, 685 F. Supp.
In formulating this uniform rule, the between litigants, whether in a crimin&l 901, 903-<J4 (S.D. N.Y. 1988); United
Department has not disregarded existing or a civil setting"); United States v. States v. Guerrerio, 675 F. Supp. 1430,
state ethics rules, as a number of Sutton, 801 F.2d 1346, 1365-66 (D.C. 1438 (S.D.N.Y. 1987). But see United
comments imply. As set forth in section Cir. 1986) (anti-contact rule "was never States v. Hammad, 858 F.2d 834, 839
(2d Cir. 1988) (pre-indictment
77.12, this regulation is specifically meant to apply to [pre-indictment, non-
intended to fit within the structure of custodial) situations such as this one"); communications may be improper if
accompanied by "misconduct" on the
DR 7-104 and Model Rule 4.2, as well United States v. Dobbs, 711 F.2d 84, 86 part of the governmr ,t), cert. denied,
as analogous state and local district (8th Cir. 1983) (agent's "noncustodial
498 U.S. 871 (199(", United States v.
court disciplinary rules. Both DR 7-104 interview of [suspect) prior to the
Pinto, 850 F.2d 921, 935 (2d Cir.), cert.
and Model Rule 4.2 provide that initiation of judicial proceedings against denied, 488 U.S. 867 (1988); United
communications that are "authorized by the appellant did not constitute an States v. Sam Goody, Inc., 518 F. Supp.
law" are exempted from the general ethical breach"); United States v. 1223,1224-25 n.3 (E.D.N.Y. 1981),
prohibition of the rule and, according to Fitterer, 710 F.2d 1328, 1333 (8th Cir.) appeal dismissed, 675 F.2d 17 (2d Cir.
the Reporter for the commission that (anti-contact rule does not prohibit 1982); see also Comment to ABA Model
developed the Model Rules, Yale Law prosecutors from using undercover Rule 4.2 (notwithstanding use of the
School ethics professor Geoffrey Hazard, informants to communicate with term "party," the rule does not require
this exception was drafted Wlth the represented persons prior to that a person be "a party to a formal
"government lawyer" problem in mind. indictment), cert. denied, 464 U.S. 852 legal proceeding").
See Letter of Janu.:.ry 19, 1994 from (1983); United States v. 'amil, 707 F.2d The courts have readily recognized
Professor Geoffrey C. Hazard, Jr. to Chief 638 (2d Cir. 1983) (proseculor's use of that Department attorneys engaged in
Justice E. Norman Veasey, at 2 ("I can undercover informant in pre- criminal and civil law enforcement
state from first-hand knowledge that this indictment, non-custodial setting to matters perform distinctly different
[authorized by law] qualification was communicate with represented person functions from attorneys engaged in the
drafted mindful of the government does not violate DR 7-104); United private practice of law. The courts have
lawyer problem, among others. In my States v. Vasquez, 675 F.2d 16, 17 (2d further recognized that the rules
opinion it is within the authority of the Cir. 1982) (anti-contact rule was not governing communications with
federal government, particularly the intended to prohibit use of undercover represented persons should take
Justice Department, to promulgate such informants prior to indictment); United account of these differences. To
regulations.") (This letter and all States v. Kenny, 645 F.2d 1323, 1339 disregard these differences would
comments are on file with the Office of (9th Cir.) ("the government's use of such tl:erefore impose substantial and
the Associate Attorney General, United investigative techniques at this stage of deleterious restrictions on the legitimate
States Department of Justice). As a criminal matter does not implicate the law enforcement duties of Department
explained later in this commentary, the sorts of ethical problems addressed by attorneys that do not presently exist.
Department's position is that the Code"), cert. denied, 452 U.S. 920 For much the same reasons, the
communications with represented (1981); United States v. Weiss, 599 F.2d Department believes that there is a basis
persons undertaken pursuant to this 730,739-40 (5th Cir. 1979) (prosecutor's for distinguishing for purposes of this
duly promulgated regulation clearly investigatory communications upheld regulation between Department
constitute communications "authorized against challenge under anli-contact attorneys engaged in law enforcement
by law." Therefore, in nedrly all rule); United States v. Lemonakis, 485 activities (who are covered by this
jurisdictions, communications approved F.2d 941, 953-56 (D.C. Cir. 1973) (anti- regulation) and Department attorneys

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engaged in civil suits in which the Congress" that every Department extremely broad authority to supervise
United States is not acting under its attorney must get a license from a State the enforcement of federal law.
police or regulatory powers (who are not and maintain that license. In order for a Department regulation
covered). One commenter proposeG. Rules governing the conduct of to have the force and effect of law, it
extending these rules to cover also the Department attorneys, or any other must rest on a reasonable construction
latter activities of Department attorneys; officials of the Executive Branch, may of th~ statutes delegating the authority
however, because government attorneys be promulgated only pursuant to to promulgate it and must not in
engaged in other, ordinary civil constitutional or statutory authority. substance contradict any act of
litigation are not engaged in distinctly Congress's delegation of authority need Congress. See, e.g., NLRB v. United
different functions from private not be specific or explicit. Chrysler Food and Commercial Workers Union,
attorneys involved in civil cases, they Corp. v. Brown, 441 U.S. 281,307-08 Local 23,484 U.S. 112, 123 (1987);
are not brought under this regulation. (1979). The Department believes that it Capital Cities Cable, Inc. v. Crisp, 467
Two organizations further criticized possesses appropriate statutory U.S. 691, 699-700 (1989). These lUles
the Department for holding government authority to promulgate this regulation represent the reasoned judgment of the
attorneys to ethical standards no higher pursuant to two distinct sources: 5 Attorney General and of the Department
than what the Constitution provides. U.S.c. 301 ("commonly referred to as about the lawful authority of federal
The Department agrees that the the 'housekeeping statute,' " Chrysler lawyers effectively to investigate and
constitutional baseline does not provide Corp., 441 U.S. at 309 (citation prosecute crime:;.
the proper measure of government omitted)), and title 28 of the United One individual and a number of
attorneys' ethical obligations. But this States Code, which in a variety of organizations, including the Conference
regulation does not purport to equate provisions auth(,rizes the Attorney of Chief Justices, posited that the
the two standards. On the contrary, the General and the Department to enforce Department is acting outside the scope
Department's final rule imposes a range federal law and to regulate the conduct of its congressionally delegated
of restrictions that go beyond those that of Department attorneys. authority because this regulation
are constitutionally compelled. For Section 301 of title 5, United States assertedly contravenes the Department
example, the regulation prohibits Code, authorizes the Attorney General of Justice Appropriation Authorization
government attorneys generally from to "prescribe regulations for the Act of 1979, which requires all
engaging in negotiations of certain government of [her] department," "the Department attorneys to be "duly
specified legal agreements with any conduct of its employees," and "the licensed and authorized to practice as
represented individual without the distribution and perfonnance of its an attorney under the laws of a State,
consent of that individual's counsel. business." 5 U.S.c. 301. The Supreme territory, or the District of Columbia."
even if that individual is not in custody Court has held that this provision Pub. Law No. 96-132, § 3(a), 93 Stat.
and not formally charged. Such authorizes the Attorney General to issue 1040,1044 (Nov. 30,1979), as carried
communications are not constitutionally regulations with extra-departmental forward by Pub. Law No. 103-121. 107
proscribed. See Brewer v. Williams, 430 effect. See, e.g., Georgia v. United Stat. 1153,1163 (Oct. 27,1993)
U.S. 387, 398 (1979); Miranda v. States, 411 U.S. 526, 536 (1973) (reenacting provisions of Pub. Law No.
Arizona, 384 U.S. 436 (1966). (holding that section 301 provided the 96-132). These commenters suggested
Additionally, the Department plans to Attorney General with "ample that when Congress required
issue United States Attorneys' Manual legislative authority" to issue Department attorneys to be licensed by
provisions that will place significant regulations that established procedural a state bar, Congress implied that
limits on the ability of government and substantive standards binding on Department attorneys should be subject
attorneys to engage in noncustodial state and local governments); United to all the rules and regulations of state
communications with a represented States ex rel. Touhyv. Ragen, 340 U.S. authorities, regardless of their impact on
"target" of a federal criminal or civil 462 (1951) (federal government attorney officials carrying out federal law
law enforcement investigation, even could not be held in contempt for enforcement. Therefore, this regulation,
though narrowing an investigation to following an Attorney General by shielding Department attorneys from
focus on a particular suspect does not regulation promulgated pursuant to a state disciplinary proceedings for
trigger the suspect's right to counsel. predecessor to section 301). violations of state rules interfering with
See Hoffa v. United States, 385 U.S. 293 Title 28 ofthe United States Code effective federal law enforcement, is
(1966). Therefore, in constructing these grants the Attorney General and the alleged to violate Congress's clear intent
standards to guide the ethical conduct Department a variety of law in enacting the Department's
of its attorneys, the Department has enforcement powers including the appropriation statute.
imposed ethical restrictions on power (through intennediary officials) The Department believes that these
Department attorneys that extend to conduct grand jury proceedings or comments mistake the purpose and
significantly beyond what the any other kind of civil or criminal legal effect of the congressional reqUirement
Constitution requires. proceeding; to conduct litigation, and to that federal attorneys have state
B. The Constitutional and Statutory "secur[e] evidence" therefor; to detect licenses. That requirement, which is
Authority for the Rule. 1. The and prosecute crimes; and to prosecute satisfied by admission to the state's bar
Department's Authority To Promulgate "civil actions, suits, and proceedings in and maintenance of bar membership,
the Rule. A number of commenters which the United States is concerned." simply serves to ensure that the
argued that the Attorney General lacks 28 U.S.C. 515(a), 516, 533, 547; see 28 professional qualifications of all
delegated authority to promulgate this U.S.c. 509,510. The Attorney General is Department lawyers have in fact been
regulation. Comments stressed that also authorized to "supervise all examined. No comment received by the
"[nlo act of Congress purports to litigation" to which the United States is Department demonstrates that Congress
authorize the Department to adopt a party and to direct United States intended the requirement to have the
regulations to override state ethics rules Attorneys and other subordinate further effect of interfering with the
governing lawyers," and that the attorneys in the "discharge of their Attorney General's ability to ensure
proposed regulation in fact is "contrary respective duties." 28 U.S.C. 519. These effective federal law enforcement or of
to. . . the explicit mandate of provisions grant the Attorney General compelling federal attorneys to comply
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39916 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations

with state bar ethical standards that "authorized by law" exception; where Automated Med. Labs, 471 U.S. 707,
contradict federal rules. this regulation is deemed not to 713 (1985) ("We have held repeatedly
2. The Department's Power to constitute "law" for purposes of such that state laws can be pre-empted by
Preempt State Ethics Rules. One exception; or where a communication is federal regulations as well as by federal
individual, one state court judge, and held to violate the applicable ethics rule statutes."). A federal agency may
five organizations, including the Special and not be "authorized" by this preempt state regulation whenever the
Committee of the Conference of Chief regulation. Therefore, an important agency, in doing so, is acting within the
Justices, commented that the feature of this regulation is its express proper scope of its congressionally
Department does not have the intention to preempt and supersede the delegated authority. Louisiana Public
constitutional power to preempt state operation of state and local federal court Servo Comm'n V. FCC, 476 U.S. 355,
regulation of its attorneys. rules as they relate to contacts by 368-69 (1986). Accord City of New
It should first be noted that in most Department attorneys, regardless of York, 486 U.S. at 64 ("if the agency's
instances the force and effect of these whether such rules ah1 inconsistent or choice to pre-empt 'represents a
rules should not depend on whether consistent with this regulation, absent a reasonable accommodation of
they preempt state ethics rules under finding of a willful violation of these conflicting policies that were committed
the Supremacy Clause. As already rules by the Attorney General. to the agency's care by the statute, we
noted. communications within the The preemption of state regulation of should not disturb it unless it appears
scope of the regulation are intended to contacts with represented persons, from the statute or its legislative history
constitute communications that are except when the Attorney General has that the accommodation is not one that
"authorized by law" within the meaning found a willful violation of the federal Congress would have sanctioned'"
of DR 7-104. Model Rule 4.2, and regulation, was an integral feature of (citation omitted)). Thus, contrary to the
analogous disciplinary rules. Therefore, this rule as proposed earlier. The commenters' suggestion, "[al
if the relevant state rule contains an proposed rule reflected the preemptive regulation's force does not
authorized-by-law exception, this Department's belief that preemption of depend on express congressional
regulation should be seen as state and local rules, which have Leen authorization to displace state
constituting such authorization, thereby unevenly applied, is necessary to ensure law, ..." Fidelity Federal Sav. l!r Loan
bringing any attorney communication that government attorneys' conduct
permissible under these rules in
Ass'n, 458 U-S. at 154.
respecting ex parte contacts is subject to
conformity with that state law and In promulgating this regulation, the
uniform and predictable standards. The
eliminating the Supremacy Clause issue. Department has made minor revisions to Department is acting within the scope of
The Committee of Chief Justices its discretionary authority. The ample
section 77.12 to clarify that the
commented that it is the exclusive Department's intent is to displace even consideration given to this regulation
province of the state supreme courts to and its earlier versions reflects the
purportedly consistent state regulation
construe state disciplinary rules and to in this area (or, as it is commonly Department's effort reasonably to
determine whether this regulation falls phrased, to "occupy the field" of accommodate the relevant policies
within the "authorized by law" reviewing ex parte contacts by concerning law enforcement and
exception to these rules. The Department attorneys). The rules and professional conduct, and, as discussed
Department has simply expressed its this commentary now state in more in the previous section, there is no basis
intention to fit communications made express terms the Department's for concluding that the Department has
pursuant to these rules within the intention to preclude any state exceeded its statutory authority.
"authorized by law" exception to state regulation of government attorneys Moreover, the purpose of these rules, as
and local federal court rules, and its respecting the subject matter of these defined in section 77.1. is to "ensure the
belief that this regulation indeed rules, unless the Attorney General first Department's ability to enforce federal
constitutes lo3gal authorization for such finds a willful violation of these rules. law eff<:lctively and ethically" and so
communications. The Department notes Several comments suggested that the fulfill the Department's statutory
that it would seem to reqUire a very Attorney General lacks the authority to responsibilities. See Capftal Cities
strained reading to conclude that a preempt state disciplinary rules, absent Cable, Inc. v. Crisp, 467 U.S. 691, 700
regulation duly promulgated after notice an explicit Congressional authorization (1984) (authority to regulate extends to
and comment and wiihin the scope of to do so. These comments misconceive all regulatory actions necessary to
its delegated authority does not also the power of a federal agency or ensure the achievement of statutory
constitute "law." Cf. Chrysler Corp., 441 department to preempt state regulation. responsibilities).
U.S. at 295-96 (1979) ("It has been Congress may, of course, expressly The "presumption against finding
established in P variety of contexts that preempt all state regulation in a preemption of state law in areas
properly pr~lnulgated substantive particular field, see Rice v. Sante Fe traditionally regulated by the States,"
agency regulations have the 'force and Elevator Corp., 331 U.S. 218,247, 255 California v. ARC America Corp., 490
effect of law.' ... It would therefore take (1947); accord Jones v. Rath Packing U.S. 93, 101 (1989), and the traditional
a clear showing of contrary leghlative Co., 430 U.S. 519, 536-37 (1977), and, state regulation of legal practice and
intent hefore the phrase 'authorized by in proper circumstances, a federal lawyers' ethics, Leis v. Flynt, 439 U.S.
law' in [18 U.S.c.] § 1905 could be held agency similarly "may determine that 438,442 (1979), does not foreclose the
to have a narrower ambit than the its authority is exclusive and preempts Attorney General from concluding that
traditional understanding." (citation any state efforts to regulate in the it is appropriate here to displace those
omitted)). forbidden area." City of New York v. state rules that regulate the conduct of
However, the Department racognizes FCC, 486 U.S. 57,64 (1988). See federal officials in the performance of
that situations may arise in which the generally Fidelity Federal Sav. l!r Loan their law enforcement duties. Here, the
power of this regulation to displace state Ass'n v. De La Cuesta, 458 U.S. 141, presumption against preemption is
rules will depend on its preemptive 153-54 (1982) ("[flederal regulations overcome by this regulation's express
force under the Supremacy Clause. Such have no less pre-emptive effect than preemption provision, which is fully
situations may arise in several forms: federal statutes" under the Supremacy effective even in matters traditionally
where the applicable ethics rule has no Clause); Hillsborough County, Fla. v. occupied by the states.
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Furthermore, under tre civil and criminal law enforcement authority is, as a matter of law,
intergovernmental immunity doctrine, investigations and proceedings. See inconsistent with the underlying statute,
states may not directly regulate or § 71.12 and accompanying commentary. and must yield to Congress's paramount
punish federal officials for acts There are two reasons why the authority as delegated to the department
undertaken in their official capacities, promulgation and operation of this or agency issuing the regulation. Thus,
or otherwise substantially interfere with regulation is unlikely to present the the conclusion that the Attorney
the lawful functions of federal officials. issue of abrogation of federal court General has the statutory authority to
See, e.g., Hancock v. Train, 426 U.S. authority identified by these promulgate the proposed regulation
167,178-79 (1976); M'Culloch v. commenters. The first is that the entails the fu ,ther cone I _'. ion that the
Maryland, 17 U.S. (4 Wheat) 316.437 regulation adopts the line of analyds regulation di.splaces inc"..3istent local
(1819); Ethical Restraints of the ABA adopted by the great weight of authority federal cou;t rules.
Code of Professional Responsibility on interpreting local district court rules Further:nore. the regulation has been
Federal Criminal Investigations, 4B Op. governing contacts with represented cargfully drawn in such a way so that
O.L.C. 576.601-02 (1980). "An officer persons. See United States v. Ryans, 903 once a person has been brought before
of the United States cannot. in the F.2d 731, 739 (10th Cir.) (discussing a court. in '6eneral no substantive
discharge of his duty. be governed and cases), cert. denied, 498 U.S. 855 (1990). commUI'i<.:ation can occur without the
controlled by state laws, any further The Department has not sought in this consent of counsel unless: the court
than such laws have been adopted and regulation to validate conduct that finds a knowing. intelligent. and
sanctioned by the legislative authority would otherwise be invalid under most voluntary waiver; the communication is
of the United States." Bank of the local district court rules. made pursuant to court-approved
United States v. Halstead. 23 U.S. (10 In addition. nearly all district courts discovery procedures; or the
Wheat.) 51, 63 (1825). Contacts covered that have adopted local rules governing communication concerns a criminal or
by this regulation fall within the scope contacts with represented persons have civil offense different from the offense
of federal attorneys' duties to carry out incorporated the "authorized by law" before the court. The regulation thus
the law enforcement activities of the exception in the Model Rules or in the accords substantial and appropriate
United States. The application to those corresponding state rule. See generally deference to the court's supervisory
attorneys of state ethics laws prohibiting Rand. 926 F.2d at 601-603. As authority over the parties and
such conduct therefore would constitute explained above. this regulation proceedings before it. Moreover. this
interference with the activities of the constitutes "law" within the meaning of regulation does not purport to disturb
federal government forbidden by the any such exception. Thus. the conduct the authority of federal courts to fashion
intergovernmental immunity doctrine. this regulation authorizes is for that appropriate remedies when an ex parte
For the foregoing and other reasons, reason equally authorized by these local contact violates the Constitution. See
the Department believes that this district court rules. § n.ll(b) and accompanying
regulation effectively preempts state Thus, this regulation in practice commentary. Therefore. federal courts
ethical rules regarding contacts with should not present any tension between will retain significant powers under the
represented persons. the federal executive and judicial Constitution to respond to or sanction
3. The Department's Authority to powers. In response to the commenters' improper ex parte cor,tacts by
Supersede Federal District Court Rules. suggestion that any tension would have government attorneys with represented
Most federal district courts have to be resolved in favor of the judicial parties.
adopted as local federal district court power. however. the Department The balance of the regulation
rules one of the two sets of ABA rules disagrees. Were the issue to arise. it regulates contacts with persons who are
or a similar anti-contact rule of the state would be properly considered, as an not before the court. and as to whom the
in which the district court sits. See initial matter. as a question of the supervisory authority of a federal court
Rand v. Monsanto Co., 926 F.2d 596. proper exercise of delegated legislative is. at best, attenuated. See. e.g., United
601-603 (7th Cir. 1991). Such adoption authority. Congress. not the courts, has States v. PayneI'. 447 U.S. 727.735 n. 7
gi ves the state rules the force of federal the primary power to prescribe rules for (1980) ("The supervisory power merely
law. See United States v. Hvass, 355 the federal courts. See Palermo v. permits federal courts to supervise the
U.S. 570, 575 (1958). One individual United States. 360 U.S. 343. 353 n. 11 administration of criminal justice
and two organizations commented that (1959); Sibbach v. Wilson fr Co.• 312 among the parties before the bar. ");
this regulation, if promulgated. would U.S. 1. 9-10 (1941). See generally United States v. Williams. 112 S. Ct.
abrogate the primary authority of federal Hanna v. Plumer. 380 U.S. 460, 472-73 1735.1742 (1992) (federal court has no
courts to regulate the conduct of (1965). In the case of this regulation. "supervisory" judicial authority to
attorneys arising out of federal law Congress has delegated that authority by prescribe standards of prosecutorial
enforcement proceedings. statute to the Attorney General. This conduct before the grand jury in the first
The Department views this concern as regulaticn therefore has no less legal instance). It would raise significant
significant but essentially theoretical, force than. for example, the Federal separation of powers concerns for a
because the regulation has been crafted Rules. which derive their ultimate district court to assert supervisory
so that it will not operate in a way that authority from legislation. See 28 U.S.c. authority to regulate and sanction the
puts it into conflict with local district §§ 2071 et seq. Local district court rules, conduct of executive branch attorneys
court rules. However, in response to even those dealing with attorney when the Attorney General has
these comments. it should be noted that discipline. may not displace adjudged such conduct legitimate and
through this regulation the Department legislatively-authorized national rules of necessary for law enforcement purposes.
does intend not only to preempt the procedure. Rand. 926 F.2d at 600 (Rules when that judgment has been embodied
application by state courts of state rules of Civil Procedure). Accord, Baylson v. in a duly promulgated regulation, and
relating to contacts by attorneys for the Disciplinary Bd. of Supreme Court of when the conduct concerns persons
government. hut also to supersede the Pa .• 975 F.2d 102.107 (3d Cir. 1992) who have not yet come before the court.
application by federal courts of the local (Rules of Criminal Procedure). A local C. Sufficiency of Internal Enforcement
federal district court rules relating to rule inconsistent with a regulation Mechanisms. Four organizations and
contacts by government attorneys in lawfully issued under statutory two individuals commented that these
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rules, as proposed, lacked enforcement section above. No changes have been definition of "attorney for the
mechanisms sufficient to deter made to this section. government" has been modified to
prohibited communications. These include explicitly "the Chief Counsel of
Section 77.2: Definitions
comments took two forms: (1) a general the DEA and anv attorney employed in
suggestion that the Department could The following terms are defined in that office, the General Counsel of the
not be trusted to police itself (or as, one section 71.2 of this part. In the final FBI and any attorney employed in that
commenter ;mt it, it would be a case of rule, unlike in the proposed rule, these office or in the Legal Counsel Division
"the fox maintain[ingJ . . . guard over terms are arranged alphabetically for the of the FBI, and, in addition, any
the hen-house"); and (2) a specific reader's ease. attorney employed in, or head of, any
concern that the restrictions to be a. "Attorney for the government." The other legal office in a Department of
placed in the United Stales Attorneys' term "attorney for the government" Justice agency."
Manual would not in <ae. de enforced includes virtually all Department of b. "Civil Law Enforcement
against Department attorneys who Justice attorneys with investigative, Investigation." This term includes any
violated them. litigative, or management investigation of potential civil violations
The Attorney General has exclusive responsibilities, regardless of title. It of. or claims under, federal law that may
authority over any violations of these does not, however, include law form the basis of a civil law enforcement
rules. As a general matter, violations of enforcement agents employed by the proceeding, as defined in paragraph
these rules will be addressed as matters Department of Justice who are also n.2(c).
of attorney discipline by the members of state bars, if they are c. "Civil Law Enforcement
Department, rather than by any eXternal employed as, and are performing the Proceeding." The term "civil law
disciplinary authority. Only if the function of, agents rather than attorneys. enforcement proceeding" encompasses
Attorney General finds a willful The Federal Bureau of Investigation, a variety of activities beyond the
violation of these rules may sanctions Drug Enforcement Agency and other particular areas identified in the
for the violations be imposed by a state investigative agencies have long definition, which are intended only to
disciplinary authority. This disciplinary recruited individuals with advanced be illustrative.
structure reflects the Department's belief degrees-including, for example, The exclusion of proceedings related
that allowing sanctions to be issued engineering, business, and law to the enforcement of an administrative
independent of the Department's degrees-to serve as agents. The subpoena or swnmons or a civil
Department strongly encourages the investigative dilmand (Cll) is intended
internal review process would frustrate
the Department's efforts to eliminate the recruitment of educated and specially- to ensure that the filing of such a
current uncertainty arising from the trained individuals for positions as proceeuing does not trigger the
agents. An agent's bar membership limitatIons of section 77.5, which
differing interpretations of the various
should not adversely affect his or her generally prohibits ex parte
anti-contact rules by federal courts, state
ability to conduct comprehensive communications once adversary
courts, and state disciplinary investigations and otherwise to fulfill
authorities. The Department intends proceedings have commenced against a
his or her law enforcement functions. represented "party." Thus, the filing by
fully to enforce these rules and to issue Therefore, the rule specifically exempts
appropriate and strong sanctions for any the United States of a proceeding to
attorney-agents from its scope if they are enforce a subpoena, swnmons, or cm
violation of these rules. employed by the government as
The Department also disagrees with will not prohibit further investigatory
investigative agents and not as communications regarding the
those comments that suggest that the attorneys.
provisions the Department currently underlying substantive violations.
The term also does not include The final sentence of paragraph
intends to add to the United States attorneys for departments or agencies 77.2(c)(2) ensures that the United States
Attorneys' Manual will not be enforced. outside the Department of Justice,
The Manual contains a great number of need not be the plaintiffin order for a
regardless of their litigative authority, civil action to be "brought by the United
significant Department of Justice except to the extent such persons have
policies, many of which impose States," but may be a counterclaimant or
been specially appointed pursuant to 28 cross-claimant if the counterclaim or
substantial restrictions on Department U.S.C. 515 or 543. cross-claim otherwise fits within the
attorneys. There is no evidence that Two Department of Justice
such policies are routinely overlooked description of civil law enforcement.
components commented that the d. "Cooperating witness or
by Department attorneys or that definition of "attorney for the individual." A "cooperating witness or
violations of policies set forth in the government," which explicitly covers individual" is defined to include
Manual are not regarded by the attorneys employed in the six main informants, witnesses, and other
Department as serious breaches of divisions of the Department, should be persons who are not law enforcement
professional duties. On the contrary, the amended to cover all attorneys working agents, but only to the extent that such
failure to follow such policies is taken in the legal offices of the various a person is acting "to assist the
very seriously. The Department expects Department agencies, such as the Drug government in an undercover or
its attorneys involved in criminal or Enforcement Administration and the confidential capacity."
civil law enforcement to follow all Federal Bureau of Investigation. The e. "Employee." The term "employee"
provisions in the Manual amendments Department agrees that the definition of is not limited to its literal meaning, but
that it intends to issue regarding ex "attorney for the government" should also includes officers, directors,
parte contacts. Failure to follow such not distinguish between attornays partners. members. and trustees. See
rules will result in appropriate employed in the Department's divisions § 71.10 (communications involving
discipline by the Department. and attorneys employed in the organizations). An independent
V. Section-by-Section Analysis Department's agencies, given that both contractor would not be considered an
sets of attorneys exercise similar "employee" for purposes of these rules.
Section 77.1: Purpose and Authority functions and reeponsibilities with f. "Organization." The term
Comments relating to this section are respect to criminal investigations and "organization" includes any
arldressed in the "General Comments" prosecutions. Accordingly, the corporation, partnership, association,
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joint-stock company, union, trust, Several commentel's argued that this No specific comments were received
pension fund, unincorporated section's basic distinction between regarding this section, and it has not
organization, state or local government represented "persons" and represented been changed.
or poli tical subdivision thereof, or non- "parties" runs counter to the policy
profit organization. It does not, of considerations underlying DR 7- Section 77.5: General Rule for Civil and
course, include groups of individuals 104(A)(1) and Model Rule 4.2. However, Criminal Enforcement; Represented
"associated in fact" within the meaning as discussed in the "General Parties
of the racketeering statutes. See 18 Comments" section, this distinction is This section closely tracks the
U.S.c. 1961(4;. consistent with the vast majority of language ofDR 7-104(A)(1) and Model
Communications with organizations federal court opinions interpreting DR Rule 4.2 and applies similar
and their employees are governed 7-104(A)(1) and Model Rule 4.2., as prohibitions to attorneys for the
generally by section 77.10. well as the text of those rules. government. The section prohibits an
g. "Person. "The term "person" Furthermore, this distinction is attorney for the government from
includes individuals and organizations grounded in logic and common sense, communicating with a represented
as defined in paragraph 77.2(0. given the legitimate necessity for party, as defined in section 77.3, about
h. "Undercover investigation." Under attorneys for the government to be able the subject matter of the representation
this definition, the hallmark of an to direct agents and cooperating without the consent of that individual's
"undercover operation" is an witnesses to contact represented attorney. As with DR 7-104(A)(1) and
investigation in which an individual persons during undercover Model Rule 4.2, the prohibition applies
"whose identity as an official of the investigations. only if the attorney for the government
government or a person acting at the One organization commented that knows that the represented party is, in
behest thereof is concealed or is prosecutors will hold back on filing fact, represented by counsel. Therefore,
intended to be concealed." This formal charges in order to maximize communications by an attorney for the
definition is intended to be read broadly their ability to communicate with government with a represented party
to include every type of law represented "persons." The Department will not violate this rule if the attorney
enforcement investigation in which the does not agree that prosecutors are for the government is unaware of the
identity of a government employee, or likely to engage in this kind of fact of representation.
the fact that an individual is cooperating systematic manipulation. The capacity
with the government, is concealed. This section also prohibits an attorney
to do so exists under the Sixth for the government from causing
Section 77.3: Represented Party; Amendment (given that the Sixth another individual to communicate with
Represented Person Amendment right to counsel attaches a represented party. Accordingly, this
only once formal charges are filed, see rule proscribes an attorney from
This section differentiates between a Brewerv. WjJ]iams, 430 U.S. 387,398
represented "party" and a represented directing a government investigator to
(1979)), but there is no evidence of do what the attorney himself or herself
"person." This distinction is fully systematic prosecutorial abuse of the
consistent with the language of and is prohibited from doing. Conversely, a
charging process under the Sixth government attorney will not be
principles underlying DR 7-104(a)(1) Amendment. Furthermore, the
and Model Rule 4.2, which establish personally responsible for the actions of
Department intends to add a new
general prohibitions against ex parle agents in communicating with
provision to the United States represented persons unless, in doing so,
contacts with a represented "party." Attorneys' Manual that will prohibit a
Section 77.5 of this part generally the agents were acting as the attorney's
Department attorney from
prohibits government attorneys from communicating overtly with a "target" "alter ego." See United States v. Heinz,
initiating ex parte contacts with of an investigation before he or she is 983 F.2d 609, 612-14 (5th Cir. 1993).
represented parties, but does not formally charged or named as a civil It also should be noted that this
prohibit ex parte contacts with defendant, except in specifically provision is violated (and thus, a basis
represented persons. (However, sections enumerated circumstances. for departmental discipline exists) when
77.8 and 77.9 also prohibit certain an inappropriate communication takes
contacts with represented persons). Section 77.4: Constitutional and Other place, regardless of whether or not the
An individual is considered to be a Limitations. communication results in eliciting an
"represented party" under paragraph This section makes clear that this inculpatory statement or is otherwise
77.3(a) if: (1) the person is represented regulation does not purport to authorize prejudicial to the represented party.
by counsel; (2) the representation is any communication prohibited by the No specific comments were received
current and concerns the subject matter Constitution or any federal statute or regarding this section, and it has not
in question; and (3) the person has Federal Rule of Criminal or Civil been changed.
either been arrested or charged in a Procedure. Although these rules do not Section 77.6: Exceptions; Represented
federal criminal case or is a defendant supersede the Federal Rules of Civil Parties
in a civil law enforcement proceeding Procedure and the Federal Rules of
concerning the subject matter of the Criminal Procedure, this limitation does This section describes the
representation. If the person is currently not extend to other rules regarding circumstances under which Department
represented in fact regarding the subject procedure in federal courts. Thus, rules attorneys may communicate, or cause
matter in question, but has not been of procedure adopted by individual others to communicate, with a
charged or arrested, that person is courts as local rules. many of which represented party whom the Department
considered a "represented person." incorporate state bar rules, are not attorney knows is represented
Thus. witnesses. suspects, and targets of included in this limitation; and, in fact. concerning the subject matter of the
investigations who have not been this regulation is explicitly intended to representation, without first obtaining
indicted or arrested, but are represented supersede local federal court rules the consent of the represented party's
regarding the subject matter in question, regarding ex parte contacts by attorneys counsel.
are considl?red represented persons for the government. See § 77.12 and Paragraph (a): Determination if
under this rule. accompanying commentary. representation exists.
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This exception recognizes the fact that paragraph creates a significant potential orders or rules of the court or other
there is no reason to prohibit a limited for abuse. This exception, which is clear tribunal where the matter iSlending. "
inquiry about whether an individual is, in its terms, allows Department Paragraph (c): Initiation 0
in fact. represented by counsel regarding attorneys to do no more than determine communication by represented party.
the relevant subject matter. Such an whether a person is in fact represented This paragraph sets out the
inquiry does not involve the kind of by counsel. The Department expects circumstances under which it is proper
communication about which courts that all Department attorneys will for a government attorney to
have expressed concern and has little understand the limited parameters and communicate with a represented party
potential for undermining the attorney- purpose of this exception. and any who has initiated contact. without the
client relationship. It is also consistent attempt to use this paragraph to gather consent of that party's counsel.
with DR 7-104(A)(1) and Model Rule additional information about the subject A defendant may wish to
4.2. matter of the representation would be a communicate with the government
There may be uncertainty about the clear violation of these rules and would outside the presence of counsel for
existence of representation with respect constitute sanctionable conduct. many valid reasons. For instance. a
to whether it has been established, Paragraph (b): Discovery or judicial or defendant may wish to cooperate with
whether it may have been terminated. administrative process. the government but not want his or her
and whether a particular subject falls Any communication that is attorney to know for fear that the
within the scope of the representation. authorized by discovery procedures. attorney will disclose the defendant's
The first issue typically arises before a such as a deposition of a party- intentions to others. This situation may
judicial or other appearance. when the opponent. or by judicial or arise, for example, when the defendant's
government attorney has some administrative process. such as a grand attorney is being paid by another
information suggesting that the person jury, deposition, or trial subpoena or an individual involved in a criminal
may be represented. It also may arise administrative summons. obviously enterprise. and the defendant questions
when an attorney purports to rt:present should not be prohibited by any rule. whether he or she has the attorney's
a group of persons. such as all the See United States v. Schwimmer. 882 undivided loyalty. The same problem
employees of a corporation. Uncertainty F.2d 22. 28 (2d Cir. 1989), cert. denied. may arise when a single attorney
about the termination of the 493 U.S. 1071 (1990) (prosecutor's represents multiple parties who are part
representation may arise when questioning of represented person of the same criminal enterprise.
substantial time has passed since it was before the grand jury outside the When the desire of a defendant or
made known that the person was presence of counsel is "authorized by arrestee to speak with the attorney for
represented by counselor when the law" under DR 7-104). Among other the government outside the presence of
attorney for the government has reason reasons for this exception. a person who his or her counsel is "voluntary.
to believe that the representation has is served with process has an knowing. and informed." there is no
ceased. It is unlikely. however. that opportunity to consult with counsel valid reason to prohibit the government
such uncertainty will arise when there prior to his or her appearance at the from engaging in such communications.
are pending judicial proceedings. proceeding. and may have counsel In fact. the Department believes that it
because in such circumstances t.r.e court present if desired during the proceeding would be a dereliction of its obligation
in most jurisdictions must approve (except. of course. while testifying vigorously to enforce federal law if it
termination of representation. before a grand jury). More generally. promulgated a rule that would prohibit
In response to one comment. it is communications authorized by such communications.
worth clarifying that that representation discovery procedures already have in It is well established that an
is presumed to cease to be current for place appropriate mechanisms for individual who is entitled to counsel
purposes of these rules when the matter protection of the attorney-client under the Fifth Amendment or the Sixth
in question has reached a final judgment relationship. This prOVision ensures that Amendment may waive that right and
(Le.. once the direct appeals process. this regulation does not prevent such choose to communicate with the
including any petition for certiorari. has communications from continuing to be government outside the presence of his
run its full course). unless there is allowed. or her attorney, "provided the waiver is
reason to believe that representation is This exception does not purport to made voluntarily. knowingly and
continuing. authorize any communications not intelligently." Moran v. Burbine, 475
When inquiring about the status of otherwise available pursuant to U.S. 412. 421 (1986) (internal quotations
representation. government attorneys approved discovery procedures or legal omitted); Patterson v. lllinois. 487 U.S.
and agents generally must refrain from process. However. one individual 285.292 (1988); Brewerv. Wmiams, 430
stating whether it is necessary or commented that the text of paragraph U.S. 387, 404-06 (1977). In such a
desirable to be represented by counsel. (b), as proposed in March 1994. might situation, the defendant should not be
After the right to counsel has attached, be construed to authorize certain prohibited from engaging in
a statement or implication suggesting discovery procedures-such as the communications that are allowed by the
that counsel is not providing proper or taking of a party's deposition testimony Constitution by a disciplinary rule that
effective representation could violate in the absence of the party's attorney was intended to protect that individual
the Sixth Amendment right to effective and without the attorney's prior in the first place. Neither common sense
assistance of counsel. See United States agreement-even where such practice nor the principles underlying DR 7-104
v. Morrison, 449 U.S. 361, 364 (1981). was not in accordance with the rules of and Rule 4.2 requires such a result.
One organization commented that the the applicable tribunal. To clarify that This paragraph includes procedural
right to inquire whether a party is this paragraph's intent is to authorize protections designed to ensure that such
represented by counsel is an invitation only approved discovery procedures or waivers are in fact voluntary, knowing,
to a more substantive conversation with legal process. this paragraph has been and informed. After a represented
a represented party with respect to the amended in the final rule to exempt individual has been arrested or charged
matter underlying the representation. only those communications made in a criminal proceeding or is named as
which would violate these rules. The pur'suant to discovery procedures or a defendant in a civil law enforcement
Department does not agree that this legal process "in accordance with the proceeding, this paragraph requires that
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Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 I Rules and Regulations 39921

several steps be taken before < represented party a waiver before a setting, as here, is whether the waiver
government attorney may engage in a bringing the matter before the court. is knowing, intelligent, and voluntary.
substantive discussion with the As noted above, the initiation of ex Another commenter opined that
represented party. First, the government parte contacts by represented parties paragraph (c), by allowing represented
attorney must inform the individual of frequently occurs in the context of the parties to waive the presence of counsel
his or her right to speak through his or "fearful defendant" whose attorney has and speak directly to a government
her attorney and to have that attorney been chosen by a third party, often an attorney, would authorize a violation of
present for any communications with individual above the defendant in the the represented party's constitutional
the government attorney. Second, the criminal hierarchy. Such a defendant rights under Miranda v. Arizona, 384
represented party must manifest his or may wish to cooperate with the U.S. 436 (1966). and its progeny. Cases
her desire to waive the right to counsel government but may fear that his life or following Miranda provide that
in a voluntary, knowing. and informed safety will be endangered if his attorney custodial interrogation must cease
way. If at all possible, the attorney for learns of the cooperation. Although the whenever the person in custody invokes
the government should obtain a signed need for a mechanism by which a his or her right to have counsel present.
written waiver. Third, the attorney for represented party can initiate contacts See, e.g., Edwards v. Arizona, 451 U.S.
the government must bring the matter with the government is particularly 477 (1981). However, the prohibition
hefore the appropriate district court acute in this context, paragraph (c) is against further interrogation does not
judge, magistrate judge, or other tribunal not limited to this setting. Rather, the apply when the accused himself or
of competent jurisdiction. Then, it is up proper inquiry is whether the herself initiates further communication,
to the court to determine that the waiver represented party's waiver of the right to see id. at 484-86, which would need to
satisfies the provisions of this rule or counsel is voluntary, knowing, and be the case for this paragraph to apply.
that substitute counsel is in place informed, not whether the represented Paragraph (d): Waivers at the time of
(including counsel appointed at that party has established some overriding arrest.
time by the court) who has consented to justification for his or her decision. The previous paragraph (paragraph
the communication. (c)) provides the general guidelines
One organization objected to the regarding how a represented party may
This paragraph does not require, extension of this exception to anyone waive protections otherwise provided
however. that the waiver must always other than a "fearful defendant," under this regulation. This paragraph
take place before the judge or magistrate suggesting that any other client wili provides for a different rule dealing
judge. In exceptional circumstances, it have no better reason to initiate specifically with a waiver at the time of
may be impractical or unsafe to bring communication than "a misguided arrest.
the defendant before a judge or belief that he can help himself by This raragraph provides that a
magistrate judge to secure the waiver. In talking to the prosecutor." The government attorney may communicate
such circumstances, the government Department believes that it would be directly with a represented party "at the
attorney may secure a waiver from the overly paternalistic to refuse to permit time of arrest of the represented party"
defendant outside the court, and, before any but fearful represented parties to without the consent of that party's
any substantive discussion between the initiate direct contact with the counsel, provided that the represented
defendant and the government takes government. Given that a criminal party has been fully informed of his or
place, bring evidence of the waiver to defendant has a constitutional right to her constitutional rights at that time and
the court so that the court can determine decline legal representation entirely, see has waived them. The government
whether the waiver was made Faretta v. California, 422 U.S. 806 attorney need not comply with any of
knowingly, intelligently, and (1975), government attorneys should not the additional requirements of
voluntarily. be ethically bound to refuse to listen to paragraph (c) in such a situation.
One United States Attorney's Office a criminal defendant who chooses to A sul:istantial body of law has
commented that paragraph (c), as decline the presence of counsel for develop\ld regarding waiver of
proposed, appeared to require an purposes of a particular communication constitutional rights in the immediate
attorney first to obtain an informed with appropriate court approval. post-arrest setting. The Department
waiver and only after receiving such a Additionally, it would be neither believes that the constitutional
waiver to bring the matter before the workable nor propbr to require a protections established in that
appropriate tribunal. The Department Department attorney or judicial officer decisional law adequately protect
does not intend to require (and does not to probe the client about his or her represented individuals following
understand the text of paragraph (c) to relationship with counsel in order to arrest. Furthermore, the effectiveness of
require) an attorney for the government, ascertain whether the client is genuinely post-arrest interviews would be
when contacted by a represented party, fearful, or fearful enough, of his or her significantly curtailed if the procedural
necessarily to attempt to secure a waiver attorney's involvement to justify a requirements of paragraph (c) applied.
himself or herself before bringing the conversation outside the presence of Accordingly, this paragraph is intended
matter to the attention of the court. A counsel. Such an inquiry would tend to to preserve this investigative tool
government attorney who is contacted enhance, not minimize, intrusion into without adding any additional
by a represented party may, consistent the attorney-client relationship. A more procedural requirements.
with this paragraph, choose to bring the reliable protection of the client's interest The Department received two
matter directly to the attention of the and of the attorney-client relationshi p is comments regarding this paragraph: one
court, assuming the represented party this paragraph's careful process of relating to the timing of the waiver, and
has manifested his or her desire to testing the client's desire (as opposed to the other relating to the terms of the
waive the right to counsel. The court the client's reasons) for waiving the waiver.
then would determine whether the party presence of counsel. This is the same A Department component commented
wishes to waive the presence of counsel analysis the courts undertake in that it would clarify the meaning of a
for the communication. In generaL assessing waivers of the constitutional communication "at the time of the arrest
however. the usual practice is for the rights to counselor against self- of the represented person" to add to the
government attorney to obtain from the incrimination. The proper issue in such text that such communication must be

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made "at the time of the arrest of the F.2d 1329, 1342 (10th Cir. 1991); United reason to suspect that prosecutorial
represented party before he or she is States v. Terzado-Madruga, 897 F.2d practice under these rules will be
presented to a judicial officer with 1099.1111-12 (11th Cir. 1990); United different.
respect to that arrest ...." The States v. Chu, 779 F.2d 356, 368 (7th Paragraph (f): Threat to safety or life.
Department has decided against Cir. 1985); United States v. Grego. 724
adopting the proposed additional F.2d 701, 703 (8th Cir. 1984). The The Supreme Court has recognized
language, because it would unadvisedly proposed rule employs an analogous that. in certain limittld situations, the
extend this exception beyond its proper approach. permitting ex parte contacts need to guard against threats to public
and intended narrow limits. This with a represented party if the contacts safety can justify noncompliance with
exception to the general rule against involve the investigation of offenses as otherwise applicable constitutional
post-arrest communications is designed to which the represented party has been safeguards. See Warden v. Hayden, 387
to preserve the ability of government neither arrested nor charged in a U.S. 294, 298-99 (1967) (warrantless
attorneys to interview individuals criminal or civil law enforcement search permissible when delay would
immediately (i.e., within hours) proceeding. The Department believes endanger lives of officers and citizens);
following arrest as an effective and this approach is wholly consistent with New York v. Quarles, 467 U.S. 649,657
important law enforcement tool. See, DR 7-104 and Model Rule 4.2 and the (1984) ("the need for answers to
e.g., 18 U.S.c. 3501(c). It is not intended cases interpreting those rules. questions in a situation posing a threat
to allow government attorneys to Accordingly, this section provides to the public safety outweighs the need
attempt to initiate communications with that communications may be made in for the {Miranda] prophylactic rule
an arrested person any time before the the course of investigations of protecting the Fifth Amendment's
person is presented to a judicial officer, additional, different, or ongoing privilege against self-incrimination").
which can extend days beyond the criminal or unlawful activity, even This paragraph recognizes an analogous
"time of arrest." The Department though the individual is represented by exception to the general prohibition
believes that such an extension of this counsel with respect to conduct for against communications with
limited exception could put excessive which he or she has already been represented parties in the absence of
pressure on clients and unduly intrude arrested or charged. Such additional their counsel. It is the Department's
upon the attorney-client relationship. criminal or unlawful conduct is intention that this exception be invoked
A United States Attorney's Office typically one of three varieties: (1) only in rare circumstances and only for
commented that proposed paragraph conduct that is separate from the the purpose of protecting human life or
(d), under which the represented party original wrongful ccnduct; (2) crimes or safety.
must be advised of and V>'aive "his or unlawful conduct that are intended to The exception has three requirements:
her constitutional rights," could be impede the administration of justice or (1) the attorney for the government must
construed to require the represented the trial of the charged crime, such as have a good faith belief that the safety
party to be explicitly told that he or she subornation of perjury. obstruction of or life of any person is threatened; (2)
has a right to his or her attorney, and not justice, jury tampering, or murder, the purpose of the communication must
just that he or she has a right to an assault. or intimidation of witnesses; be to obtain information to protect
attorney (as required by Miranda v. and (3) conduct that is a continuation of against the risk of injury or death; and
Arizona, 384 U.S. 436 (1966)). This the charged crime. such as a conspiracy (3) the attorney for the government
paragraph is intended to apply or a scheme to defraud that continues must. in good faith. believe that the
whenever an arrested person is read his past the time of indictment. The new or communication is reasonably necessary
or her Miranda rights and waives those additional criminal or wrongful activity to protect against such risk. These
rights; it is not intended to require the may have occurred in the past or may requirements are imposed to ensure that
represented party to be apprised of his be ongoing at the time of the the exception is invoked only to protect
right to counsel in any different or more investigation. human life or safety, and not as a
specific terms than Miranda and its One organization objected to this routine matter in violent crime
progeny require. To make clear that the section's coverage of criminal or prosecutions. For example, the fact that
usual Miranda warnings and wai'Jer wrongful activity that has already Deen potentially dangerous firearms have not
suffice for purposes of this section, completed at the time of the been recovered would not in and of
paragraph 77.6(d) has been amended in communication, as distinct from activity itself be sufficient under ordinary
the final rule to read as follows: "The that is ongoing. However, the circumstances to constitute a threat to
communication is made at the time of Department sees no basis in the policies safety under this exception.
the arrest of the represented party and underlying the Sixth Amendment and Furthermore, the communication must
he or she is advised of his or her rights the Model Rules for basing the propriety be for the purpose of protecting human
under Miranda v. Arizona, 384 U.S. 436 of investigation into additional or life or safety, and may not be designed
(1966), and voluntarily and knowingly different uncharged crimes on whether to elicit testimonial evidence. However,
waives them." such activity is complete or ongoing. information thus obtained may be used
Paragraph (e): Investigation of One individual expressed concern for any purpose consistent with
additional, different, or ongoing crimes that Department attorneys would exploit constitutional limitations.
or civil violations. this exception by making gratuitous No specific comments were received
The Sixth Amendment right to allusions to other offenses in the course regarding this paragraph, and it has not
counsel is "offense-specific." McNeil v. of an otherwise illicit contact with a been changed.
Wisconsin, 111 S. Ct. 2204, 2207 (1991). represented party. As noted above,
Thus, a defendant whose Sixth prevailing case law interpreting the Section 77.7: Represented Persons:
Amendment rights have attached as to Sixth Amendment and the Model Rules Investigations
one offense remains subject to permit an attorney to question a As noted in the discussion of section
questioning, whether direct or covert. defendant as to uncharged offenses, and 77.3, individuals and organizations who
regarding uncharged crimes. Id.; Maine there is no evidence of systemic are neither defendants nor arrestees are
v. Moulton, 474 U.S. 159,180 n.16 prosecutorial abuse of this type of not "parties" within the meaning of this
(1985): United States v. Mitcheltree, 940 interrogation. Accordingly, there is no rule, and the general prohibition on ex
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parte contacts therefore does not apply. substantive discussions with a 77.7, the communication is nevertheless
This section makes clear that attorneys represented party or represented person. subject to the restrictions of this section.
for the government are authorized to it ordinarily would be improper for a Paragraph (a): Deference to Attorney-
communicate. directly or indirectly, government attorney to initiate or Client Relationship
with a represented person unless the negotiate a plea agreement. seltlement,
contact is prohibited by some other immunity agreement or any other Federal courts have recognized that it
provision of federal law. These disposition of a claim or charge without is improper for an attorney for the
communications are subject, however, the consent of the individual's counsel. government to disparage counsel for the
to the restrictions set forth in sections The one exception to this prohibition represented party or otherwise to seek to
77.8 and 77.9 regarding certain occurs when the communication is disrupt the rela.onship between that
categories of negotiations and respect initiated by the represented person or party and his attorney. See. e.g.. United
for attorney-client relationships. represented party and the procedural States v. Morrison, 449 U.S. 361, 362,
Two individuals commented that this safeguards provided for in paragraph 367 (1981); United States v. Weiss, 599
section. even as limited by sections 77.8 77.6(c) are satisfied. F.2d 730. 740 (5th Cir. 1979); id. at 740-
and 77.9. allows a broader range of The Department believes that this 41 (Godbold, J., sprycially concurring).
contact with persons under section is important for the preservation This paragraph codifies those basic
investigation than is necessary to meet of the attorney-client relationship. One principles by prohibiting
the Department's legitimate of the primary purposes of DR 7-104 communications that: (1) attempt to
investigative needs. These individuals elicit information regarding lawful
and Model Rule 4.2 is to protect an
agreed that the government must be free defense strategies; (2) disparage the
individual represented by counsel from
to conrluct undercover operations and represented party's counsel; or (3)
overreaching by an attorney for an
investigations. even when field adversary. The Department believes the otherwise improperly seek to disrupt
investigators coming into contact with the attorney-client relationship. These
risk and the consequences of such
potential criminal or civil respondents prohibitions apply in every phase of
overreaching are at their greatest during
are directed by government attorneys. criminal and civil enforcement
negotiations over plea agreements.
They argued. however, that overt investigations and proceedings.
seltlements. and other key legal However, the paragraph also
communications with persons during agreements. The training, experience.
the investigative stage are not similarly accommodates an important exception
and knowledge of the law possessed by to this prohibition. Courts have held
justified. an attorney is particularly valuable in
The Department agrees that overt that a government attorney may not
such situations. permit legal proceedings to go forward
cummunications between a government
attorney and a represented person The prohibition contained in this if he or she is aware of a conflict of
during the investigative stage raise section includes all negotiations of the interest between a represented party and
different considerations from covert terms of a particular plea agreement, his or her lawyer. See United States v.
communications and should be subject settlement agreement, or other lorizzo. 786 F.2d 52, 59 (2d Cir. 1986).
to gre,der restrictions. For this reason. agreement covered by the section. Under this circumstance, the attorney
the Department plans to make revisions However, this section does not prohibit for the government ordinarily should
to the United States Attorneys' Manual an attorney for the government from move to disqualify the lawyer involved,
providing that government attorneys responding to questions regarding the if legal proceedings have already
should engage in overt communications nature of such agreements, potential commenced. If it is not feasible to move
only after carefully considering whether charges. potential penalties, or ather for disqualification or otherwise
the communication is more subjects related to such agreements challenge the representation, this
appropriately handled by others. and during an otherwise permissible paragraph allows an attorney for the
should generally not communicate discussion. Nevertheless. an attorney for government to communicate with the
overt lv, or cause another to the government should take care in such represented individual for the limited
comm'unicate overtly, with a target of a situations not to go beyond providing purpose of apprising the represented
federal criminal or civil investigation, information on these and similar individual of the perceived conflict.
who is known by the Department subjects and should generally refer the However, any substantive discllssion of
attorney to be represented by counsel. represented person to his or her counsel the subject matter of the representation
concerning the subject matter of the for further discussion of these issues. is permissible only insofar as it is
representation. Nevertheless. the The government attorney should also authorized by some other provision of
Department believes that overt contacts make it clear that he or she will not this rule.
by federal attorneys and agents with negotiate any agreement with respect to In order to ensure that this provision
witnesses and subjects of investigations the disposition of criminal charges, civil is used only in rare circumstances. the
are often necessary for effective law claims or potential charges. or immunity rule requires prior authorization for
enforcement and hence should be agreements without the consent of such communications from the Attorney
permitted. counsel. General, the Deputy Attorney General,
;'110 specific comments were received the Associate Attorney General, an
Section 77.8: Represented Persons and regarding this section, and it has not Assistant Attorney General or a United
Represented Parties; Plea Negotiations been changed. States Attornev. The authorization
and Other Legal Agreements should be in ~riting if at all possible.
Section 77.9: Represented Persons and
This section prohibits government Furthermore. before providing approval,
Represented Parties; Respect for
attorneys from initiating or engaging in the authorizing officer must find: (1) a
Attorney-Client Relationships
negotiations of certain specified legal subsiantiallikelihood of a conflict; and
agreements with any individual whom When an attorney for the government (2) that it is not feasible to obtain a court
the government attorney knows is communicates with a represented party order on the matter.
represented by counsel. without the pursuant to one or more of the One organization commented that
counsel's consent. Even when the exceptions listed in section 77.6. or with judicial approval, or at least approval by
regulation otherwise permits a represented person pursuant to section a designated Assistant Attorney Genera-l
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(rather than by a United States necessary to protect their safety or life later testifies for the government at trial,
Attorney). should be required before an or the confidentiality of an undercover no violation will have occurred as long
attorney for the goverrunent may apprise operation. See Weatherford. 429 U.S. at as the co-defendant was not a
a represented party or person of any 557. goverrunent agent at the time of the
perceived conflict of interest. Another Howevf r, even when an undercover meeting. United States v. Brugman, 655
organization and an individual operativr;'s attendance at such a lawful F.2d 540, 545-46 (4th Cir. 1981).
commented that attorneys for the meeting is authorized to protect his or A Department component commented
government should never be allowed to her cover and safety, any information that an undercover agent's attendance at
inform a represented individual of a acquired regarding lawful defense a meeting at which legal strategy is not
perceived conflict of interest, and, strategy or trial preparation may not be discussed does not intrude on the
instead. should be required to move to communicated to government attorneys attorney-client relationship; therefore,
disqualify counsel and leave it to the or otherwise used to the substantial the component pr(>~(]sed limiting this
court to adjudicate any conflicts of detriment of the represented party. See paragraph's prohibition against
interest. The Department believes that Weatherford. 429 U.S. at 558; Ginsberg. goverrunent agents participating in an
there will be circumstances in which it 758 F.2d at 833; Mastroianni. 749 F.2d attorney-client meeting or
will not be feasible to obtain a judicial at 906. As a safeguard, this rule provides communication to situations where
order challenging the representation that such information should not be there is a "reasonable basis" to believe
(especially prior to the filing of charges). communica''!d to the attorneys for the that the meeting or communication will
or when the exigencies of the situation goverrunent or law enforcement agents concern legal advice or strategy. The
may make it impracticable to obtain who are participating in the trial of the Department believes that it is unwise
prior authorization of a judicial officer pending criminal charges. and unworkable to encourage
or an Assistant Attorney General. In When there is reasonable cause to government attorneys and undercover
such circumstances, and when a high- believe that the purpose of the meeting agents to guess whether legal issues will
level Departrr.ent official, such as a is not the lawful defense of the come up in an attorney-client meeting
United States Attorney. determines that underlying charges, but the commission or communication. It would also be
there is a significant likelihood of a of a new or additional crime (such as disruptive of the attorney-client
conflict of interest between a bribery of a witness or subordination of relationship for government attorneys
represented individual and his or her perjury). attendance by informants or and undercover agents to gather the
attorney, it is better that the represented undercover agents at attorney-client information that might make such a
person or party be apprised of the meetings is permissible pursuant to determination even remotely reliable.
potential conflict of interest than be left paragraph 77.6(e). The belief. however, Therefore. this paragraph has not been
uninformed. Accordingly. the must be based on reasonable cause, not changed.
Department has decided to leave this mere suspicion or conjecture. See
Mastroianni. 749 F.2d at 906. Section 77.10: Organizations and
paragraph unchanged in the final rule. Employees
Furthermore. the prohibition against
Paragraph (b): Attorney-Client Meetings communication of lawful defense This section addresses the difficult
The attendance of an undercover strategy to the prosecution should be issue of when a communication with an
agent or e cooperating witness at lawful observed if, in fact, such strategy is employee or member of a represented
meetings of an individual and his or her imparted to the informant or agent. organization should be considered a
attorneys is ordinarily an improper Government attorneys should give communication with the organization
intrusion into the attorney-client serious consideration to the extreme itself. Important interests depend on
relationship. The courts have sensitivity of permitting agent and this determination. On the one hand,
recognized, however, that such informant attendance at defense organizations should not be shielded
attendance occasionally will be required meetings. Agents and informants should from effective criminal or civil law
when the operative is invited to be instructed to avoid participating in enforcement prosecution simply by
participate and his or her refusal to do such meetings, and to minimize their retaining counsel. It is not uncommon
so would effectively reveal his or her participation when attendance is for federal prosecutors to encounter
connection to the government. See, e.g., required, if it is possible to do so attorneys who assert that they represent
Weatherford v. Bursey, 429 U.S. 545, without arousing suspicion. Agents or every individual in a large corporation
557 (1977); United States v. Ginsberg, witnesses who attend defense meetings or organization. If such attorneys were
758 F.2d 823. 833 (2d Cir. 1985); United should also be instructed to make every able to prevent government investigators
States v. Mastroianni, 749 F.2d 900, 906 attempt to avoid taking any role in the from gaining informal access to any
(1st Cir. 1984). As the First Circuit has shaping of defense strategy or trial employee of the organization by
noted, a contrary rule "would provide preparations. Additionally, agents and withholding consent, information
the defense with a quick and easy alarm informants should be instructed to relevant to claims against the
system to detect the presence of any avoid imparting lawful defense strategy organization might never come to light
informants, simply by inviting all or trial preparation information to because such information is often in the
known associates of defendants to a attorneys for the government or to law exclusive possession of the organization
supposed defense strategy meeting." enforcement agents who are directly and its employees. See, e.g., Suggs v.
Mastroianni. 749 F.2d at 906. participating in the ongoing Capital Cities/ABC Inc., 54 Empl. Prac.
Attendance at such meetings, investigation or in the prosecution of Dec. (CCH) 'lI40,195 at 63,910 (S.D.N.Y.
however, intrudes into the attorney- pending criminal charges. Apr. 24, 1990). On the other hand.
client relationship and impairs the right Finally, this restriction applies only to organizations are entitled to the
of the defendant to a fair trial. law enforcement officials and effective assistance of counsel. and the
Accordingly, this section provides that cooperating witnesses who are acting as relationship between an organization
undercover agents or cooperating "agents for the goverrunent" at the time and its counsel deserves respect.
witnesses may participate in such of the communication. If one of several The Department believes that this
meetings, but only when requested to do co-defendants who attended an section. and particularly the definition
so by the defense and when reasonably attorney-client defense strategy meeting of "controlling individual" in paragraph
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Federal Register / Vol. 59, No. 149 / Thursday. August 4. 1994 / Rules and Regulations 39925

(a) of this section. strikes an appropriate One individual and one organization unacceptable constraints on federal law
balance, one that ensures government questioned limiting the class of enforcement. Therefore. this paragraph
attorneys the ability to enforce federal employees who should be considered has not been changed.
lew, whilt: preserving the opportunity "controlling individuals" for purposes Paragraph (b): Communications with
for corporations and other organizations of this subsection to those who former employees; organizational
to secure effective assistance of counsel. participate in framing the organization's representation.
Paragraph (a): Communications with legal position in the matter. They argued This paragraph authorizes
current employees; organizational that the proposed "controlling communications with former employees
representation. individual" test authorizes contacts of represented organizations. Because
This paragraph states that a with employees who, while not former employees do not direct the
communication with a current directing the organization's counsel. affairs of the organization and therefore
employee of an organizational party or nonetheless have extensive authority to cannot be considered members of the
person should be treated as a act on behalf of the organization. The "control group" or any other controlling
communication with the organization lJnderlying concern of these comments entity of an organization.
for purposes of this part only if the appears to be that this paragraph. as communications with them are not
employee is a "controlling individual." proposed, authorizes contacts with considered communications with the
If a communication with a current many employees who are likely to organization for purposes of the rule.
employee is properly characterized possess information relevant to claims This reasoning is consistent with the
under this regulation as a asserted against the corporation and conclusion of the majority of federal
communication with a represented who have the capacity to make courts that have held that DR 7-
organization (that is, if the statements that a court will deem 104(A)(1) does not bar communications
communication is with a controlling admissible at trial as evidentiary with former employees of a represented
individual), then that communication is admissions against the corporation. This corporate party. See. e.g., Hanntz v.
subject generally to the same limitations is certainly true. However. the Shiley. Inc., 766 F. Supp. 258. 267 & n.8
Department believes that its anti-contact (D.N.J. 1991); Action Air Freight. Inc. v.
that would apply if the communication
were with a represented person or rule should not be designed with the Pilot Air Freight Corp.• 769 F. Supp.
goal of protecting corporations from 899.904 (E.D. Pa. 1991); Shearson
represen ted party.
disclosure of prejudicial facts. See. e.g., Lehman Bros., Inc. v. Wasatch Bank,
In accord with the basic structure of 139 F.R.D. 412.417-18 (D. Utah 1991);
this regulation, which distinguishes Action Air Freight v. Pilot Air Freight.
769 F. Supp. 899, 903 (KD. Pa. 1991) Sherrod v. Furniture Center, 769 F.
between represented parties and Supp. 1021, 1022 (W.O. Tenn. 1991);
(anti-contact rule "should not
represented persons, this paragraph Dubois v. Gradco Systems, Inc., 136
necessarily chill the flow of harmful
effectively provides that when an F.R.D, 341, 345 n.1 (D. Conn. 1991);
information"); Hanntz v. Shiley, Inc.•
organization is a represented party, an Polycast Technology COip, v. Uniroyal,
766 F. Supp. 258, 267 (D. N.J. 1991)
attorney for the government shall not Inc., 129 F.R.D. 621, 628 (S.D. N.Y.
("the poliCies of Rule 4.2 do not justify
communicate. or cause another to 1990). See also ABA Comm. on Ethics
a wholesale restriction on discovery of
communicate, with any controlling and Professional Responsibility, Formal
factual information. damaging or not").
individual of the organization without Anti-contact rules such as DR 7-104 Op. 359 (1991) ("Accordingly. it is the
the consent of the organization's and Model Rule 4.2 are intended to opinion of the Committee that a lawyer
attorney, subject to the exceptions protect the attorney-client relationship representing a client in a matter adverse
enumerated in § 77.6. In contrast, when from unnecessary interference and to to a corporate party that is represented
an organization qualifies as a protect represented parties from by another lawyer may, without
represented person, an attorney for the overreaching by opposing counsel. violating Model Rule 4.2. communicate
government may communicate, or cause Damage to the attorney-client about the subject of the representation
another to communicate. with any relationship inheres particularly in with an unrepresented former employee
controlling individual, provided the communications with high-level of the corporate party without the
communication does not violate the corporate employees who have contact consent of the corporation's lawyer.").
provisions of §§ 17.8 or 77.9, with the corporation's attorneys in the But see PPG Industries. Inc. v. BASF
The definition of "controlling course of making ultimate decisions Corp.• 134 F.R.D. 118.121 (W.O. Pa.
individual" is intended to encompass regarding choice of counsel. 1990); Public Servo Elec. &- Gas V.
those individuals who typically are part implementing counsel's advice, and Associated Elec. &- Gas, 745 F. Supp.
of the organization's contrrl group. A determining settlement and other 1037,1042 (D.N.J. 1990).
controlling individual under this litigation strategies. Therefore, No specific comments were received
definition must: (1) be a current communications with those high-level regarding this paragraph, and it has not
employee or member of the individuals affiliated with or employed been changed.
organization; (2) hold a high-level by an organization who are responsible Paragraph (c): Communications With
position with the organization; (3) for emplOYing and directing the Former or Current Employees:
participate "as a decision maker in the organization's counsel and for Individual Representation
determination of the organization's legal determining legal positions taken by the This paragraph provides that if a
position in the proceeding or organization are the type of former or current employee or a member
investigation of the subject matter;" and communications prohibited by DR 7- of an organization retains his or her own
(4) be known by the government to be 104. counsel, the government shall provide
engaged in such activities. This Accordingly, this paragraph defines the same protection to him or her that
definition attempts to identify those "controlling individual" consistently would be provided under this part to
limited number of individuals affiliated with the principles underlying the any other represented person or
with the organization who actually are disciplinary rules on ex parte contacts. represented party. Communications
involved in determining the The Department also believes that the with that individual are subject to the
organization's position with regard to alternative approaches urged by limitations set forth in this part.
the legal proceeding or investigation. commenters would impose Although this paragraph provides the

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39926 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations

general rule for such communications, This paragraph applies only when a No specific comments were received
paragraph (d) addresses the specific controlling individual of a represented regarding this paragraph, and it has not
situation in which a controlling organizational party has retained been changed.
individual of a represented organization separate counsei. In such circumstances. Section 77.11: Enforcement of This Part
retains separate counsel. a government attorney may not
This paragraph also provides that the communicate with the controlling Paragraph (a): Exclusive enforcement
government will not accept, for illdividual without the consent of that by Attorney General.
purposes of this rule, blanket claims by individual's separate counsel unless the In order to ensure consistency and
counsel that he or she represents all or communication satisfies one of the uniformity in the interpretation of the
a large number of employees of the exceptions contained in § § 77.6 or 77.9 final rule. this paragraph provides that
organization. It is important to note that of this part. The paragraph also allows the Attorney General shall have
this provision is only relevant when the such communications if the individual exclusive authority to enforce these
attorney for the government would be does not qualify as a represented party. regulations. Thus. state courts, state
prohibited by some other provision of initiates the communication, and waives disciplinary boards, and federal courts
this regulation from contacting an the presence of counsel. Thus, the same may not impose sanctions on or
individual falling under the broad rules apply to contacts with controlling otherwise regulate a Department
claims of representation under question. individuals of represented attorney engaged in federal law
For example, an attorney for the organizational parties who relain enforcement activities for violations of
government may contact a low-level separate counsel as apply to controlling an anti-contact rule or subject a
employee of a corporation, without individuals of represented Department attorney to regulation under
consent of that employee's counselor organizational parties who are not state or local federal court rules
separately represented. governing communications with
Ihe corporation's counsel, regarding a
matter for which the corporation has No specific comments were received represented parties. except as provided
in § 77 .12. This paragraph further
already been indicted as part of an regarding this paragraph, and it has not
provides the framework for investigating
under~over or overt factual been changed.
allegations that a Department attorney
investigation. if Ihal individual has not Paragraph tel: Initiatian of has violated this regulation. It provides
been arrested or named as a defendant communication by unrepresented that the Department's Office of
in a related criminal or civil law controlling individuals. Professional Responsibility ("OPR")
enforcement proceeding. Therefore, the This paragraph addresses a relatively shall have ('ole original jurisdiction to
fact that an attorney has stated that he narrow circumstance: when a investigate such allegations and that
or she represents that individual will controlling indiviuual who is not violations will be treated as matters of
have no bearing on whether the individually represented by counsel attorney discipline. See 28 CFR § 0.39
communication is proper. initiates a communication with the (establishing and detining duties of
However, if a particular government outside the presence of OPR). It also makes clear that the
communication with an individual counsel for the organization. An Attorney General's determination as to
employee included in such a claim of attorney for the government may whether a violation has occurred shall
representation would be improper participate in such communications if: be final and conclusive except to the
under these rules if he or she were in (1) the controlling individual indicates
extent that the Department attorney
fact represented by counsel (for that he or she is speaking exclUSively in enjoys a right of review provided by
example, communications to negotiate a his or her personal capacity and not as other laws.
plea agreement), then this paragraph a representative of the organizational One individual and one organization
provides that a government attorney party; and (2) he or she indicates that objected to placing investigative
must first inquire whether the employee the waiver of counsel is voluntary. responsibility in OPR, suggesting that
is in fact represented before undertaking knowing. and informed and, if '.villing, OPR had, in the past, been reluctant to
substantive communications with the signs a statement to that effect. The fact share the results of its investigations.
employee. As part of this inquiry, the that the controlling individual indicates The Department recently adopted a
government attorney is not required to that he or she is speaking in his or her policy under which the results of OPR
disclose to the employee the fact that personal capacity does not mean, investigations are disclosed to the
counsel has asserted that he or she however. that incriminating testimony public if, inter alia. there is a finding of
represents the employee. If the received from the controlling individual intentional and knowing professional
employee indicates that he or she is not cannot be used against the represented misconduct by a Department attorney in
represented by counsel, it is proper for organization. the course of an investigation or
the government attorney to treat the If the controlling individual is also a litigation and the public interest in
employee as unrepresented. If the named defendant in a civil enforcement disclosure outweighs the privacy
employee indicates that he or she is proceeding or has been arrested or interest of the attorney and any law
represented hy counsel with regard to charged in a criminal action, the enforcement interest. Therefore. there
the relevant subject matter. the attorney requirements set forth in paragraph will be meaningful disclosure of
for the government shall treat that 77.6(c) must be satisfied before any findings of violations of these rules.
employee as a represented person or substantive communications are made. Moreover, allegations of professional
represented t rty, "nd any further No specific comments were received misconduct by Department attorneys
communications with that individual regarding this paragraph. and it has not concerning violations of these rules may
shall be governed by this regulation. been changed. be reported directly to OPR by any
No specific comments were received Paragraph {f}: Multiple person. Complaints filed by members of
regarding this paragraph. and it has not representation. the public will be fully and thoroughly
been changed. This paragraph makes clear that these reviewed by OPR.
Paragraph {d}: Communications with rules should not be construed as altering Therefore, this paragraph has not been
separately represented controlling existing legal and ethical rules regarding changed.
individuals. the propriety of multiple representation. Paragraph {b}: No private remedies.
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Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 I Rules and Regulations 39927

This paragraph provides that the rule district court rules. To effectuate fully violated. The Department respectfully
is not intended to and does not create the provisions of this regulation, it disagrees. A primary purpose for this
any substantive rights for any person therefore is important that the regulation is to remove the substantial
other than an attorney for the regulation include a plain statement by burden on federal law enforcement
government. In particular, a violation of the Department of its intention to caused by uncertainty as to what
the regulation will not provide a basis preempt and supersede regulation by constitutes appropriate conduct by
for the dismissal of civil or criminal state courts, state disciplinary Department attorneys. This uncertainty
charges or for the suppression of authorities, or federal district courts of would not be removed were it left to the
evidence that is otherwise admissible. ex parte communications by various state and federal district courts
This provision accords with existing government attorneys in civil or to interpret these rules and determine
law. Traditionally, matters relating to criminal law enforcement investigations on their own whether they had been
communications with represented or proceedings. See Hillsborough violated in any particular case. For this
persons have been treated as matters of County, Fla. v. Automated Med. Labs, reason, the Department believes that it
attorney discipline without granting 471 U.S. 707. 718 (1985) ("because is necessary that it retain exclusive
substantive rights to defendants or any agencies normally express problems in authority to determine whether one of
other persons. See, e.g.. ABA Code of a detailed manner and can speak its lawyers has breached these rules,
Professional Responsibility. Preliminary through a variety of means, including with the important proviso that. when
Statement; ABA Model Rules of regulations. preambles. interpretative there is a finding of a willful violation,
Professional Conduct, Scope. Of course, statements and responses to comments, a state disciplinary authority may also
when the communication with a we can expect that they will make their impo!'e sanctions.
represented person or represented party intention clear if they intend for their One United States Attorney's Office
violates the Constitution, the federal regulations to be exclusive"). commented that the meaning of a
courts retain the power to fashion There is no indication from any of the "willful violation" had not been clearly
appropriate remedies. comments received of any confusion explained in the previous commentary.
No specific comments were received regarding the breadth of the In response to this comment. the
regarding this paragraph, and it has not Department's intention to displace state Department here clarifies that a "willful
been changed. and federal law; on the contrary. the violation" means an intentional and
Section 77.12: Relationship to State and comments in this area generally both deliberate violation of these rules. as
fully grasped and took issue with the determined by the Attorney General.
Local Regulation Department's stated intention to occupy
Both DR 7-104 and Model Rule 4.2 United States Attorneys' Manual
the field. Given the integral importance
provide that communications that are of the exclusive enforcement authority In addition to the promulgation of the
"authorized by law" are not prohibited to the overall regulatory scheme, rules discussed above, the Department
by the rule. Virtually all the states have however, some revisions have been intends to add several new provisions to
adopted some version of DR 7-104 or made to this section to leave no doubt the United States Attorneys' Manual to
Model Rule 4.2 that includes an that it is the express intention of these provide additional guidance to
"authorized by law" exception. As rules to completely preempt and Department attorneys when they deal
discussed in the "General Comments" supersede the operation of state and with represented individuals during
section. these rules, as substantive local laws or rules as they relate to criminal or civil law enforcement
regulations duly promulgated by the contacts by government attomeys in investigations and proceedings.
Attorney General pursuant to statutory civil or criminal law enforcement The Department has deliberately
authority, have the force and effect of investigations or proceedings. Such chosen to include certain baseline
law. Accordingly. communications with occupation of the field is necessary to restrictions in the regulation and impose
represented persons that are undertaken ensure that government attorneys' broader restrictions through provisions
pursuant to these rules should be conduct respecting contacts with in the Manual. In the process of
considered "authorized by law" within represented persons be subject to determining what the appropriate
the meaning of rules adopted by the uniform regulation and predictable Departmental policy should be. it
various states. Such communications standards, as against potential variations became clear that any regulation would
should therefore be consistent with state in individual state and local rules and have to apply to a variety of
rules wherever state bar authorities have in interpretations of those rules. circumstances, including: white enliar
adopted a rule containing the Accordingly, thIS regulation and organized crime investigations.
"authorized by law" exception. Thus, completely preempts state or federal complex conspiracy investigations.
no conflict will arise between state and court regulation of ex parte contacts in individuals whose counsel are paid by
federal law in those jurisdictions with law enforcement matters by government a third party, and individuals fearful of
regard to communications with attorneys and those acting at their their counsel for various reasons.
represented persons. Similarly. no direction. with one important exception. Accordingly, the Department
conflict should arise between this If the Attorney General finds that a determined that the regulation should
regulation and the federal district court Department attorney has committed a be broad in scope and should provide
rules that have adopted an anti-contact "willful violation" of any of these rules, unambiguous guidance that would not
rule containing the "authorized by law" preemption will not apply, and that adversely affect federal law enforcement
exception. This regulation therefore attorney will be subject to disciplinary efforts. Thus, part 77 distinguishes
need not give rise to any tension with proceedings both by the Department and between the investigative period (before
any provision of state or federal law. by the appropriate state disciplinary indictment, arrest, or the filIng of a
The Department nonetheless authorities. complaint) and the prosecutive period
recognizes the likelihood that Several commenters argued that it is (after arrest or the commencement of
government attorneys' conduct with inappropriate to preclude an otherwise formal proceedings). It also
respect to contact with represented appropriate state or federal court distinguishes between communications
persons may continue to be viewed by disciplinary proceeding when the that are part of a factual investigation
some as inconsistent with state or local Department's own rules have been and communications that OCCllI during
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39928 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations

negotiations of plea agreements, with known "targets." These planned restrictions on overt
settlements. and similar legal commenters expressed a number of communications with represented
arrangements. concerns about the "target" provision- targets are appropriate.
The planned Manual provisions will most significantly. that the
require that government attorneys determination of "target" status would
consider the principles underlying the be subjective and variable and that the In accordance with 5 U.S.c. 605(b).
basic prohibitions in a much wider proposed limitation on overt contacts the Attorney General certifies that this
variety of circumstances. The with represented targets would interfere rule will not have a significant
Department expects all Department with the investigative process. economic impact on a substantial
attorneys involved in criminal or civil The Department does not ag:ee that number of small entities. This rule was
law enforcement proceedings to adhere the term "target" would make not reviewed by the Office of
to all applicable provisions in the application of this planned restriction Management and Budget pursuant to
Manual. Failure to do so will result in particularly troublesome. While Executive Order No. 12866.
appropriate departmental action. determinations of "target" status surely
The planned changes to the Manual are not scientifically precise. neither are List of Subjects in 28 CFR Part 77
were included in the earlier a range of other similar determinations Government employees.
publications simply for reference and (e.g., "probable cause" determinations) Investigations, Law enforcement,
were not subject to the requirements of that prosecutors are expected routinely Lawyers.
notice and comment that applied to the to make. In its enforcement of the Accordingly. chapter I of title 28 of
provisions in the proposed regulation planned provision, the Department the Code of Federal Regulations is
itself. The Department nonetheless intends to give substantial deference to amended by adding a new part 77 to
received several comments regarding a federal attorney's good faith judgment read as follows;
the draft Manual provisions. The regarding the likelihood that a particular
Department has carefully considered person will ultimately become a PART 71-COMMUNICATIONS WITH
those comments and has decided that it defendant. Even if the attorney for the REPRESENTED PERSONS
is appropriate (though not required) to government believes that an individual
respond to them briefly in this probably will be named as a defendant. 71.1 Purpose and authority.
commentary. However. none of the that individual would not be considered 71.2 Definitions.
comments received has prompted the a target until the goverIL'11ent has 77.3 Represented party; represented person.
Department to conclude that it should actually obtained substantial evidence 71.4 Constitutional and other limitations.
alter the planned Manual provisions. linking that individual to the n.5 General rule for civil and criminal
The Department anticipates that the commission of a crime or to unlawful enforcement; represented parties.
Manual provisions will be substantially conduct. The government attorney's n.6 Exceptions: represented parties.
similar to the draft published in March uncorroborated belief th.::t an inriividual n.7 Represented persons; investigations.
1994. The Department envisions will ultimately be named as a defendant n.8 Represented persons and represented
publishing the Manual provisions soon would not be enough. Thus, an parties: plea negotiations and other
specified legal agreements.
and integrating them in the Manual with individual will not be considered a 77.9 Represented persons and represented
the final rules adopted here. target under the Manual guidelines until parties; respect for attorney-client
Comments were directed mainly to a both the attorney for the government relationships.
draft Manual provision that would believes that he or she will probably be n.l0 Organizations and employees.
prohibit a government attorney from named as a defendant and substantial n.ll Enforcement of this part.
communicating overtly about the evidence has been obtained. n.12 Relationship to state and local
subject matter of a representation with The Department also does not believe regulation.
a person who the government attorney that the contemplated restriction on Authority: 5 U.S.c. 301; 28 U.S.c. 509.
knows is a "target" of a federal criminal overt communications with represente'i 510, 515(a), 516, 519, 533, 547.
or civil enforcement investigation and targets would significantly impede
§ 77.1 Purpose and authority.
who the government attorney knows is legitimate law enforcement activities. It
represented by counsel, without the is true that in certain types of cases and (a) The Department of Justice is
consent of the target's attorney. (The vnder certain exceptional committed to ensuring that its attorneys
provisions. as published in March 1994, circumstances, target interviews may be perform their duties in accordance with
would also provide several exceptions necessary for effective investigation; for the highest ethical standards. The
to this general prohibition against overt that reason. th.e planned Manual purpose of this part is to provide a
contacts with targets. including the provisions would allow that in such comprehensive. clear, and uniform set
following: when the communication is situations target interviews may be of rules governing the circumstances
initiated by the target; when the approved by a high-ranking Department under which Department of Justice
communication occurs at the time of official. However. as a gE. '.crJl matter attorneys may communicate or cause
arrest and the representee person has and in more routine circumstances, others to communicate with persons
waived his or her Miranda rights; when overt communications with targets have known to be represented by counsel in
the government attorney believes the a more limited value to the investigative t.'-1e course of law enforcement
contact is necessary to protect against a process, which is olltweighed by the investigations and proceedings. This
risk to human life or safety; or when a risk that they will interfere with the part ensures the Department's ability to
senior Department official determines attorney-client relationship and place enforce federal law effectively and
that 'lxigent circumstances exist. n;aking undue pressure on the target. Becau<;, ethically, consistent with the principles
the communication necessary for an individual who is a target of a feoeral underlying Rule 4.2 of the American Bar
effective law enforcement). investigation is typically in a clearly Association Model Rules of Professional
Two United States Attorney's Offices adversarial relationship with the fed, fal Conduct, while eliminating the
urged reconsideration of the guideline government, the Department believes uncertainty and confusion arising from
generally prohibiting Department that the principles underlying DR 7-104 the variety of interpretations given to
attorneys from directly communicating and Rule 4.2 are implicated and that the that rule and analogous rules by state
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and federal courts and by bar of the United States. The term attorney (g) Person means any individual or
association organizations and for the government does not include any organization.
committees. (Copies of the Bar rules are attorney employed by the Department of (h) Undercover investigation means
on file in most law libraries, and Justice as an investigator or other law any investigation undertaken in good
through on-line legal research services).enforcement agent who is not faith to fulfill law enforcement
(b) This part is issued under the authorized to represent the United objectives, in which a person
authority ofthe Attorney General to States in criminal or civil law commimicates with a federal. state or
prescribe regulations for the government enforcement litigation or to supervise local law enforcement agent or a
of the Department ofJustice, the such proceedings. cooperating witness or individual
conduct of its employees, ..lI1d the (b) Civil law enforcement whose identity as an official of the
performance of its business, pursuant tv investigation "leans an investigation of government or a person acting at the
5 U.S.C. 301; to direct officers ofthe possible civil violations of, or claims behest thereof is concealed or is
Department of Justice to secure evidence under, federa~ law that may form the intended to be concealed.
and conduct litigation. pursuant to 28 basis for a civil law enforcement
U.S.C. 516; to direct officers of the proceeding. § n.3 Represented party; represen ted
Department to conduct grand jury (c) (1) Civil law enforcement person.
proceedings and other civil and proceeding means a civil action or (a) A person shall be considered a
criminal legal proceedings, pursuant to proceeding before any court or other "represented party" within the meaning
28 U.S.c. 515(a); to supervise litigationtribunal brought by the Department of of this part only if all three of the
and to direct Department cJcers in the Justice under the police or regulatory following circumstances exist:
discharge of thair duties, pursuant to 28powers of the United States to enforce (1) The person has retained counselor
U.S,c. 519; and otherwise to direct federal laws, including. but not limited accepted counsel by appointment or
Department officers to detect and to. civil actions or proceedings brought otherwise;
prosecute crimes, to prosecute offenses to enforce the laws relating to: (2) The representation is ongoing and
against the United States, to prosecute (i) Antitrust; concerns the subject matter in question;
civil actions, suits, and proceedings in (ii) Banking and financial institution (3) The person has been arrested or
which the United States is concerned, regulation; charged in a federal criminal case or is
and to perform such other functions in (iii) Bribery. kickbacks, and a defendant in a civil law enforr:ement
an appropriate and ethical manner as corruption; proceeding concerning the subject
may be provided by law, pursuant to 28 (iv) Civil rights;
(v) Consumer protection; matter of the representation.
U.S.c. 509.510.533. and 547. (b) A person shall be considered a
(vi) Environment and natural resource
§ n.2 Definitions. protection; "represented person" within the
(vii) False claims against the United meaning of this part if circumstances set
As used in this part. the following forth in paragraphs (a) (1) and (2) of this
terms shall have the following States;
(viii) Food, drugs. and cosmetics section exist, but the circumstance set
meanings. unless the context indicates forth in paragraph (a)(3) does not exist.
otherwise: regulation;
(a) Attorney for the government means (ix) Forfeiture of property;
(x) Fraud; § n.4 Constitutional and other limitations.
the Attorney General; the Deputy Notwithstanding any other provision
(xi) Internal revenue;
Attornev General; the Associate (xii) Occupational safety a>ld health; of this part, any communication that is
Attorney General; the Solicitor General; (xiii) Racketeering; or prohibited by the Sixth Amendment
the Assistant Attorneys General for. and (xiv) Money-laundering. right to counsel, by any other provision
any attorney employed in. the AntiUust (2) The term civil law enforcement of the United States Constitution, by any
Division. Civil Division. Civil Rights proceeding shall not include federal statute, by the Federal Rules of
Division, Criminal Division, proceedings related to the enforcement Criminal Procedure (18 U.S.C. App.) or
Environment and Natural Resources of an administrative subpoena or by the Federal Rules of Civil Procedure
Division, or Tax Division; the Chief summons or a civil investigative (28 U.S.C. App.) shall be likewise
Counsel of the [lEA and any attorney demand. An action or proceeding shall prohibited under this part.
employed in that office. the General be considered "brought by the United
Counsel of the FBI and any attorney States" only if it involves a claim § n.s General rule for civil and criminal
employed in that office or in the Legal asserted by the Department of Justice on enforcement; represented parties.
Counsel Division of the FBI, and, in behalf of the United States, whether the Except as provided in this part or as
addition, any attorney employed in. or claim is asserted by complaint. otherwise authorized by law, an
head of. any other legal office in a counterclaim. cross-claim, or otherwise. attorney for the government may not
Department of Justice agency; any (d) Cooperating witness or individual comrI, 'micate, or cause another to
United States Attorney; any Assistant means any person, other than a law comm Ideate, with a represented party
United States Attorney; any Special enforcement agent. who is acting to who the attorney for the government
Assistant to the Attorney General or assist the government in an undercover knows is represented by an attorney
Special Attorney duly appointed or confidential capacity. concerning the subject matter of the
pursuant to 28 U.S.c. 515; any Special (e) Employee means any employee. representation without the consent of
Assistant United States Attorney duly officer, director. partner, member, or the lawyer representing such party.
appointed pursuant to 28 U.S.c. 543 trustee.
who is authorized to conduct criminal CO Organization means any § n.6 Exceptions; represented parties.
or civil law enforcement investigations corporation, partnership. association. An attorney for the government may
or proceedings on behalf of the United joint-stock company, union. trust. communicate, or cause another to
States; or any other attorney employed pension fund, unincorporated communicate, with a represented party
by the Department of Justice who is association, state or local government or without the consent of the lawyer
authorized to conduct criminal or civil political subdivision thereof, or non- representing such party concerning the
law enforcement proceedings on behalf profit organization. subject matter of the representation if
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39930 Federal Register / Vol. 59. No. 149 / Thursday. August 4, 1994 / Rules and Regulations

one or more of the following include, but is not limited to. the counsel. the following restrictions must
circumstances exist: following: be observed:
(a) Determination if representation (1) Additional, different or ongoing (a) Deference to attorney-client
exists. The communication is to criminal activity or other unlawful relationship. (1) An attorney for the
dc~ermine if the person is in fact conduct that is separate from or government, or 'inyone acting at his or
represented by counsel concerning the committed after the criminal activity for her direction may not. when
subject matter of the investigation or which the represented party has been communicating with a represented
proceeding. arrested or charged or for which the person or represented parly:
(h) Discovery or judicial or represented party is a defendant in a
civil law enforcement proceeding; or (i) Inquire about information
administrative process. The regarding lawful defense strategy or
comm"nication is made pursuant to (2) Criminal activity that is intended
to impede or evade the administration legal arguments of counsel;
discovb:j' procedures or judicial or
administrative process in accordance of justice including, but not limited to. (ii) Disparage counsel for a
with the orders or rules of the court or the administration of justice in the represented person or represented party
other tribunal where the matter is proceeding in which the represented or otherwise seek to induce the person
pending. including, but not limited to parly is a defendant, such as obstruction to forego representation or to disregard
testimony before a grand jury. the taking of justice, subornation of perjury. jury the advice of the person's attorney; or
of a deposition, or the service of a grand tampering. murder, assault, or (iii) Otherwise improperly seek to
jury or trial subpoena, summons and intimidation of witnesses. bail jumping. disrupt the relationship between the
complaint. notice of deposition. or unlawful flight to avoid prosecution. represented person or represented party
(f) Threat to safety or life. The and counsel.
administrative ~ummons or subpoena or
civil investigative demand. attorney for the government in good (2) Notwithstanding paragraph (a)(1)
(cl Initiation of communication by faith believes that there may be a threat of this section, if the Attorney General,
represented party. The represented to the safety or life of any person; the the Deputy Attorney General. the
party initiates the communication purpose of the communication is to Associate Attorney General, an
directly with the attorney for the obtain 0: provide information to protE:ct Assistant Attorney General or a United
government or through an intennediary against the risk of injury or death: and States Attorney finds that there is a
and: the attorney for the government in good substantial likelihood that there exists a
(1) Prior to the commencement of
faith believes that the communication is significant conflict of interest between a
necessary to protect against such risk. represented person or parly and his or
substantive discussions on the subject
mattllr of the representation and after § 77.7 Represented persons; her attorney; and that it is not feasible
being advised by the attorney for the investigations. to obtain a judicial order challenging the
govemment of the client's right to speak Except as otherwise provided in this representation. then an attomey for the
through his or her attorney and/or to pari. an attorney for the government government with prior written
have the client's attorney present for the may communicate. or cause another to authorhation from an official identified
commlmication, manifests that his or communicate, with a represented above nay apprise the person of the
her waiver of counsel for the person in the process of conducting an nature d the perceived conflict of
communication is voluntary. knowing investigation. including. but not limited interest, unless the exigencies of the
and informed and. if willing to do so, to. an undercover investigation. situation permit only prior oral
signs a written statement to this effect; authorization. in which case such oral
and § 77.8 Represented persons and authorization shall be memorialized in
(2) A federal district judge, magistrate
represented parties; plea negotiations and writing as soon thereafter as possible.
other legal agreements.
judge or other court of competent (h) Attorney-client meetings. An
jurisdiction has concluded that the An attorney for the government may
not initiate or engage in neg;Jtiation3 of attorney for the government may not
represented party has: direct or cause an undercover law
(i) Waived the presence of counsel
a plea agreement. settlement, statutory
or non-statutory immunity agreement, enforcement agent or cooperating
and that such waiver is voluntary, witness to attend or participate in
knowing. and informed; or or other disposition of actual or
potential criminal charges or civil lawful attorney-client meetings or
(ii) Obtained substitute cOIl'''-Cll 'Jr has communications, except when the agent
received substitute couD~el' enforcement claims, or sentences or
penalties with a represented person or or witness is requested to do so by the
appointment. and substitute 1 has represented person or parly. defense
represented party who the attorney for
consented to the communicath
(d) Waivers at the time of Qrre~.. ..cl
the government knows is represented by counsel. or another person affiliated or
associated with the defense. and when
an attorney without the consent of the
communication is made at the time of reasonably necessary to protect the
attorney representing such person or
the arrest of the represented party and safety of the agent or witness or the
party; provided, however. that this
he or she is advised of his or her rights confidentiality of an undercover
restriction will not apply if the
under Miranda v. Arizona, 384 U.S. 436 operation. If the agent or witness attends
communication satisfies § 77.6(c).
(1966). and voluntarily <L,d knowingly or participates in such meetings, any
waives them. § n.9 Represented persons and information regarding lawful defense
(e) Investigation of additional, represented panles; respect for attorney- strategy or trial preparation imparted to
different or ongoing crimes or civil client relationships. the agent or witness shall not be
violations. The communication is made When an attorney for the government communicated to attorneys for the
in the course of an investigation, communicates, or causes a law government or to law enforcement
whether undercover or overt. of enforcement agent or cooperating agents who are directly participating in
additional. different or ongoing criminal witness to communicate. with a the ongoing investigation or in the
activity or other unlawful conduct. Such represented person or represented party prosecution of pending criminal
additional, different or ongoing criminal pursuant ~o any provision of these charges, or used in any other way to the
activity or r:her unlawful conduct may regulations without the consent of substantial detriment of the client.
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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39931

§ 77.10 Organizations and employees. separate counsel on the relevant subject shall review any complaint alleging a
This section applies when the matter, an attorney for the government violation of this part made by a state or
communication involves a former or may communicate with such individual federal judge, bar disciplinary board,
current employee of an organizatk n that in the following circumstances: official, or ethics committee. or by any
qualifies as a represented party or (1) If the controlling individual's other person or entity. The findings of
represented person, and the subject separate counsel consents; the Attorney General or her designee as
matter of the communication relates to (2) If the communication falls within to an attorney's compliance or non-
the business or other affairs of the one of the exceptions set forth in §§ 77.6 compliance with this part shall be final
organization. or 77.9; or and conclusive except insofar as the
(a) Communications with current (3) In the case in which the individual attorney for the government is afforded
employees: organizational does not qualify as a represented party, a right of review by other provisions of
representation. A communication with a if the individual initiates the law.
current employee of an organization that communication and states that he or she (b) No private remedies. This part is
qualifies as a represented party or is cc rnmunicating exclusively in his or not intended to and does not create
represented person shall be considered her personal capacity and not on behalf substantive rights on behalf of criminal
to be a communication with the of the represented organizational party, or civil defendants. targets or subjects of
organization for purposes of this part and manifests that his or her waiver of investigations. witnesses. counsel for
only if the employee is a controlling counsel for the communication is represented parties or represented
individual. A "controlling individual" voluntary, knowing and informed, and, persons. or any other person other than
is a current high level employee who is if willing to do so, signs a written an attorney for the government, and
known by the government to be statement to this effect. shall not be a basis for dismissing
participating as a decision maker in the (e) Initiation of communication with criminal or civil charges or proceedings
determination of the organization's legal unrepresented controlling individuals. against represented parties or for
position in the proceeding or Notwithstanding any other provision of excluding relevant evidence in any
in vestigation of the subject matter. this part, an attorney for the government proceeding in any court of the United
(b) Communications with former may communicate with a controlling States.
employees: organizational individual who is not individually
representation. A communication with a represented as to the subject matter of § 77.12 Relationship to state and local
former employee of an organization that the communication when the regulation.
is represented by counsel shall not be controlling individual initiates the Communications with represented
considered to be a communication with communication and states that he or she parties and represented persons
the organization for purposes of this is communicating exclusively in his or pursuant to this part are intended to
part. her personal capacity and not on behalf constitute communications that are
(c) Communications with former or of the represented organizational party. "authorized by law" within the meaning
current employees; individual and manifests that his or her waiver of of Rule 4.2 of the American Bar
representation. A communication with a counsel for the commun:.ation is Association Model Rules of Professional
former or current employee of an voluntary, knowing. and informed, and. Conduct. DR 7-104[A)(1) of the ABA
organization who is individually if willing to do so, signs a written Code of Professional Responsibility. and
represented by counsel may occur only statement to this effect. analogous state and local federal court
to the extent otherwise permitted by this If) Multiple representation. Nothing in rules. In addition. this part is intended
part. However, a claim by an attorney this section is intended or shall be to preempt and supersede the
that he or she represents all or a large construed to affect the requirements of application of state laws and rules and
number of individual current and/or Rule 44[c) of the Federal Rules of local federal court rules to the extent
former employees of an organization Criminal Procedure, or to pefillit the that they relate to contacts by attorneys
does not suffice to establish that those multiple representation of an for the government. and those acting at
employees are represented persons or organization and any of its employees. their direction or under their
represented parties under this part. In or the multiple representation of more superVision, with represented parties or
such circumstances, prior to engaging in than one such employee. if such represented persons in criminal or civil
communications that would be representation is !)rI)hibited by any law enforcement investigations or
prohibited under this part as a result of applicable law or rule of attorney ethics. proceedings; it is designed to preempt
the individual represelltation, the the entire field of rules concerning such
attorney for the government shall § 77.11 Enforcement of this part
contacts. When the Attorney General
communicate with the individual [a) Exclusive enforcement by Attorney finds a willful violation of any of the
current or former employee to General. The Attorney General shall rules in this part. however, sanctions for
determine if in fact that employee is have exclusive authority over this part the conduct that constituted a willful
represented by counsel concerning the and anv violations of it, except as VIOlation of this part may be applied, if
subject matter of the investigation or provided in § 77.12. Allegations of warranted. by the appropriate state
proceeding. violations of this part shall be reviewed disciplinary authority.
(d) Communications Nith separately exclusively by the Office of Professional
Responsibility of the Department of Dated: July 3D, 1994.
represented controlling individuals.
When this part would preclude Justice and shall be addressed when Janet Reno,
discussions with a controlling appropriate as matters of attorney Attorney General.
individual as defined in § 77.10(<.) and discipline by the Department. The IFR Doc. 94-19077 Filed 8-3-94: 8:45 amI
the controlling individual has retained Office of Professional Responsibility BILLING COCE 441G-Ol-P

Attachment A - page 22 of 22

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