[Federal Register Volume 59, Number 42 (Thursday, March 3, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4510]
[[Page Unknown]]
[Federal Register: March 3, 1994]
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DEPARTMENT OF JUSTICE
28 CFR Part 77
[AG Order No. 1851-94]
Communications With Represented Persons
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice (``Department'') is issuing for an
additional 30-day comment period a proposed rule governing the
circumstances under which its attorneys may communicate with persons
and organizations known to be represented by counsel in the course of
law enforcement investigations and proceedings.
The purpose of the proposed rule is to impose a comprehensive,
clear and uniform set of regulations on the conduct of government
attorneys during criminal and civil investigations and enforcement
proceedings. The rule is intended to ensure that government attorneys
adhere to the highest ethical standards, while eliminating the
uncertainty and confusion arising from the variety of interpretations
of state rules, some of which have been incorporated by reference as
local court rules in a number of federal district courts.
The proposed rule establishes a general prohibition, subject to
limited enumerated exceptions, against contacts with ``represented
parties.'' This prohibition derives from the American Bar Association
(``ABA'') Code of Professional Responsibility and its successor, the
ABA Model Rules of Professional Conduct. The proposed rule generally
permits investigative contacts with represented individuals or
organizations who have not yet been named as defendants in a civil or
criminal enforcement proceeding or arrested as part of a criminal
proceeding. However, the rule would not permit contacts with
represented persons without the consent of counsel for the purpose of
negotiating plea agreements, settlements or other similar legal
arrangements.
In addition, the Department intends to issue substantial additions
to the United States Attorneys' Manual (``Manual'') to provide
additional direction to Department attorneys when they deal with
represented individuals and organizations, in order to accommodate more
fully the principles and purposes underlying the bar rules. Those
provisions further restrict government attorneys when they contact
targets of criminal or civil law enforcement investigations who are
known to be represented by counsel, and when they communicate with
other represented persons. The intended additions to the United States
Attorneys' Manual are provided for reference as part of this
commentary.
DATES: Comments must be received on or before April 4, 1994.
ADDRESSES: Written comments should be submitted to: The Office of the
Associate Attorney General, United States Department of Justice, 10th
St. and Constitution Ave. NW., Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT: F. Mark Terison, Senior Attorney,
Legal Counsel, Executive Office for United States Attorneys, United
States Department of Justice, (202) 514-5204. This is not a toll-free
number.
SUPPLEMENTARY INFORMATION:
I. General Discussion
The Department issued for notice and comment a proposed rule on the
same subject on two previous occasions. See 57 FR 54737 (Nov. 20, 1992)
and 58 FR 39976 (July 26, 1993). The Department received many
thoughtful comments from members of the bar, state courts, bar counsel,
federal and state prosecutors and others during those comment periods.
The current version of the proposed rule includes substantial revisions
based on those comments. Accordingly, the Department is issuing the
rule again for comments to ensure that all the interested parties have
an opportunity to comment.
This proposal reflects the Department's commitment to fostering
ethical behavior consistent with the principles informing DR 7-
104(A)(1) of the ABA Code of Professional Responsibility and Rule 4.2
of the Model Rules of Professional Conduct, while setting forth clear
and uniform national guidelines upon which federal attorneys can rely
in carrying out their responsibilities to enforce federal laws. The
regulations make clear that federal attorneys generally continue to be
subject to state bar ethical rules where they are licensed to practice,
except in the limited circumstances where state ethical rules clearly
conflict with lawful federal procedures and practices. With respect to
willful violations of the contacts rules as embodied in the Attorney
General's proposed regulations, federal attorneys would remain subject
to state bar disciplinary sanctions. This new proposal is the product
of extensive review, comments and vigorous debate among judges, federal
government attorneys, members of the private bar, disciplinary
officials, academics and ethicists.
In essence, the proposed regulations would permit federal
prosecutors and agents to continue to conduct criminal and civil
investigations in routine fashion against all individuals, whether or
not those persons are represented by counsel. They would allow
Department attorneys to continue to make or direct undercover or overt
contacts with individuals and organizations represented by counsel for
the purpose of developing factual information up until the point at
which they are arrested or charged with a crime or named as defendants
in a civil law enforcement action. However, the regulations generally
would not permit federal prosecutors to attempt to negotiate plea
agreements, settlements or similar arrangements with individuals
represented by counsel outside of the presence or without the consent
of their attorneys. These regulations also would preclude, with certain
very narrow exceptions, any contacts with represented parties after an
arrest, indictment, or the filing of a complaint on the subject matter
of the representation. The principal exception to these general
prohibitions occurs when the defendant voluntarily and knowingly
initiates a contact with the government attorney, in which case the
regulations would require the government attorney to take the matter
before a district judge or magistrate judge to obtain approval for the
communication or to obtain the appointment of substitute counsel for
the defendant.
The United States Attorneys' Manual will set forth further
guidance. The proposed Manual provisions, which are set out in their
entirety at the end of this commentary, prohibit overt approaches by
federal attorneys to represented targets of criminal or civil
enforcement proceedings without the consent of counsel, unless certain
enumerated exceptions are met. The Manual also will require that
government attorneys receive approval from their supervisors before
communicating with any represented party or represented target.
Since early in this century, the rules of professional conduct that
govern attorneys have required that lawyers for one party in a dispute
communicate only through an adverse party's lawyer, rather than
directly. DR 7-104(A)(1) of the ABA Model Code of Professional
Responsibility provides:
A. During the course of his representation of a client a lawyer
shall not:
1. Communicate or cause another to communicate on the subject of
the representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do so.
Rule 4.2 of the ABA Model Rules states:
In representing a client, a lawyer shall not communicate about
the subject of the representation with a party the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized by law to do
so.
Disciplinary authorities in all 50 states and in the District of
Columbia have adopted one of these rules, or a similar prohibition.
Underlying these rules is the recognition that when two parties in a
legal proceeding are represented, it is unfair for an attorney to
circumvent opposing counsel and employ superior skills and legal
training to take advantage of the opposing party.
At the same time, the courts have long recognized that government
law enforcement agents must be allowed broad powers, within
constitutional limits, to investigate crime and civil violations of
police and regulatory laws. These powers properly include the authority
to conduct undercover operations and to interview witnesses, potential
suspects, targets and even defendants who waive their rights to remain
silent. Although the Fifth and Sixth Amendments significantly restrict
contacts with defendants after their initial appearance before a judge
or after indictment, these constraints generally do not apply before a
person has been taken into custody or charged in an adversary
proceeding. Sound policies support this substantial power of police to
investigate. The general public, victims of crime, and even potential
suspects have a strong interest in vigorous inquiry by law enforcement
officers before arrest or the filing of charges.
As long as investigations were treated as within the province of
the police alone, the traditional rule forbidding counsel from directly
contacting represented persons did not come into conflict with
legitimate law enforcement activities. In recent years, however, the
Department of Justice has encouraged federal prosecutors to play a
larger role in preindictment, prearrest investigations. Some of this
increased involvement stems from the wider use of law enforcement
techniques, such as electronic surveillance, which require the
preparation of legal filings. Also, complex white collar and organized
crime investigations necessitate more intensive engagement of lawyers,
who present such cases to grand juries. Most important, greater
participation of lawyers at the preindictment stage of law enforcement
has been regarded as helpful in assuring that police investigations
comply with high legal and ethical standards.
This extension of the traditional prosecutor's responsibility has
been a salutary development. One by-product, however, has been
uncertainty about whether the traditional professional limitation on
attorney contacts with represented parties should be viewed as a
restriction upon prosecutors engaged in investigations and, by
extension, the agents with whom they work. The overwhelming
preponderance of federal appellate courts have held that the
restriction on contacts with represented persons does not apply at the
preindictment investigation stage. See, e.g., United States v. Ryans,
903 F.2d 731 (10th Cir.), cert. denied, 498 U.S. 855 (1990) (discussing
cases); United States v. Lemonakis, 485 F.2d 941, 955-56 (DC Cir.
1973), cert. denied, 415 U.S. 989 (1974). Only the Second Circuit has
suggested otherwise. See United States v. Hammad, 858 F.2d 834 (2d Cir.
1988). In recent years, state courts and state bar organizations have
expressed different views on the point at which the prohibition on
contacts now embodied in DR 7-104, Model Rule 4.2 and their analogs
should apply to criminal enforcement proceedings.
Uncertainty about the scope and applicability of DR 7-104, Rule 4.2
and their state counterparts has directly affected the investigative
activities of agents, including Federal Bureau of Investigation and
Drug Enforcement Administration personnel, who work with prosecutors.
An expansive application of these rules in some jurisdictions may have
the effect of blocking preindictment interviews or undercover
operations that most courts have held permissible under federal
constitutional and statutory law.
This problem is compounded when federal attorneys assigned to the
same case are members of different state bars. Under federal law, a
Department attorney must be a member in good standing of a state bar,
but he or she need not belong to the bar in each state in which he or
she is practicing for the government. As a result, prosecution teams
often comprise attorneys admitted to different bars. The application of
different state disciplinary rules to these individuals creates
uncertainty, confusion and the possibility of unfairness. Indeed, one
member of a two-member federal prosecution team could receive a
commendation for effective law enforcement while the other member would
be subject to state discipline for the exact same conduct.
In light of these circumstances, the Department has concluded that
a compelling need exists which warrants a uniform federal rule to
reconcile the traditional rule against contacts with a represented
person with the obligation of the Department of Justice to enforce the
law vigorously. Indeed, absent a new federal rule, prosecutors have
been forced on occasion to reduce their participation in the
investigative phase of law enforcement so as to leave federal agents
unfettered by state disciplinary rules that were never intended to
govern police behavior. Such a retreat from the field by prosecutors
serves neither efficiency nor the interest in elevating legal
compliance and ethical standards in all phases of law enforcement.
Furthermore, the disciplinary rules themselves invite this type of
regulation. Virtually all the states have adopted rules that include an
``authorized by law'' exception. These proposed regulations are
intended to provide legal authorization in states whose bar rules
provide that exception.
Finally, the Department has long maintained, and continues to
maintain, that it has the authority to exempt its attorneys from the
application of DR 7-104 and Model Rule 4.2 and their state
counterparts. Furthermore, the Department maintains that whether, and
to what extent, such prohibitions should apply to Department attorneys
is a policy question. See Ethical Restraints of the ABA Code of
Professional Responsibility on Federal Criminal Investigations, 4B Op.
O.L.C. 576, 577 (1980). However, in light of the fact that all 50
states and the District of Columbia have adopted some form of a
prohibition on contacts with represented parties, and in view of the
long history of those rules, the Department believes that its attorneys
should adhere to the principles underlying those rules to the maximum
extent possible. Therefore, even though the Department has the
authority to exempt its attorneys from the reach of these rules, the
Department has decided not to implement a wholesale exemption.
Rather, the proposed regulations attempt to reconcile the purposes
underlying DR 7-104 and Rule 4.2 with effective law enforcement.
Recognizing the importance of the attorney-client relationship and the
desirability of an individual who is represented by counsel being fully
advised by counsel before negotiating legal agreements, the regulations
provide that federal attorneys may not negotiate plea bargains,
settlement agreements, immunity agreements or similar arrangements
without the participation or consent of the individual's attorney. In
this context, the prosecutor's superior legal training and specialized
knowledge could be used to the detriment of the untutored layperson.
Thus, the regulations comport with the principal purpose of DR 7-104
and Rule 4.2 by insisting that the individual's attorney participate in
these types of negotiations. At the same time, the regulations would
permit direct contacts at the preindictment, prearrest investigative
stage with any individual, whether or not he or she is represented by
counsel, to inquire about the matters under investigation. The
regulations are drafted to conform to the approach of most federal
appellate courts that have considered the matter. See, e.g., United
States v. Lopez, 4 F.3d 1455 (9th Cir. 1993); United States v. Ryans,
903 F.2d 731 (10th Cir.), cert. denied, 498 U.S. 855 (1990); United
States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.), cert. denied, 464
U.S. 852 (1983); United States v. Kenny, 645 F.2d 1323, 1339 (9th
Cir.), cert. denied, 452 U.S. 920 (1981); and United States v.
Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied, 415
U.S. 989 (1974). The Department believes that public policy and
effective law enforcement would not be served if one could exempt
himself or herself from lawful, court-sanctioned investigative
techniques simply by retaining an attorney. The Department believes
that it is inappropriate to alter investigative techniques based upon
an individual's financial ability to retain counsel before the point at
which a court would appoint counsel for a person not able to afford
counsel.
The regulations and the accompanying changes to the United States
Attorneys' Manual also would give effect to other important aspects of
the bar rules against contacts with represented parties. For example,
the regulations would preclude federal attorneys from disparaging an
individual's counsel or from attempting to gain access to attorney-
client confidences or lawful defense strategy. The guidelines contained
in the Manual provisions will also make clear that once an individual
is in a likely adversarial situation with the government and has
retained an attorney to represent him or her with respect to the
particular subject matter under investigation, the government attorney
must take greater care before making any ex parte contacts. While the
proposed regulations authorize most communications before arrest, the
proposed Manual changes provide that, as a matter of internal policy
guidance, federal prosecutors generally should not make overt contacts
with represented targets of investigations. However, the Manual
provisions permit overt contacts with a represented target when
initiated by the target; when necessary to prevent death or physical
injury; when the relevant investigation involves ongoing, additional or
different crimes from that to which the representation relates; or when
a United States Attorney or an Assistant Attorney General expressly
concludes, under all of the circumstances, that the contact is needed
for effective law enforcement.
Finally, the proposed regulations and Manual provisions also
address when a government attorney may communicate with an employee,
officer or director of a represented corporation or organization
without the consent of counsel. The regulations generally prohibit a
government attorney from communicating with a current, high-level
employee of a represented organization who participates as a ``decision
maker in the determination of the organization's legal position in the
proceeding or investigation of the subject matter'' and the
organization has been named as a defendant in a criminal or civil law
enforcement proceeding. The Manual provisions further generally
prohibit contacts with controlling individuals of organizations that
have not yet been named as defendants but are targets of federal
criminal or civil law enforcement investigations without the consent of
counsel.
The proposed regulations recognize that state courts and
disciplinary bodies continue to play the primary role in regulating the
conduct of all attorneys, including those who work for the federal
government. Further, Department of Justice attorneys continue to be
subject to state bar ethical rules except to the limited extent those
rules conflict with lawful federal procedures and practices. As noted
above, however, because of the expanded participation of federal
prosecutors in preindictment investigations, DR 7-104 and Model Rule
4.2 have inevitably affected and circumscribed the power of federal law
enforcement officials to carry out their legally mandated
responsibilities. State courts and disciplinary committees are not the
appropriate final arbiters of the scope of federal policing. The
Department of Justice must assume this role, subject to the
Constitution and the laws of the United States. The new regulations
would not supplant state discipline. Rather, the regulations would
provide that attorneys who comply with the new federal rule will be
shielded from inconsistent state disciplinary rules. On the other hand,
attorneys who willfully violate the new regulations would continue to
be subject to the full measure of state disciplinary jurisdiction.
The Department is confident that, taken together, the proposed
regulations, Manual amendments and this supplemental information will
promote the public interest in effective law enforcement conforming to
the highest standards of legal ethics.
II. Analysis of Comments and Revisions
A detailed discussion of the comments received following the first
publication of the earlier proposal is included at 58 FR 39976 (July
26, 1993).
The comments received following the second publication of the
earlier proposal were similar in many respects to those received in the
first round of comments. As of September 19, 1993, the Department
received 219 written comments. Of those, 159 comments were received
from Department of Justice employees. Of those, 144, mostly from
federal prosecutors from around the country, supported promulgation of
the earlier proposal; 1 opposed the rule; and 14 others provided
miscellaneous comments. The Department also received 21 comments from
federal officials outside the Department, 18 of whom supported the
proposal.
The Department received 39 comments from individuals and
organizations outside of the federal government. These writers included
private attorneys, public defenders, state court judges, bar
associations, disciplinary officials and others. Twenty-eight writers
in that group expressed opposition to the rule while 3 supported the
proposal.
Those writing in support of the earlier proposal generally
emphasized three major points. First, they stated that a clear rule
governing communications by federal attorneys with represented
individuals was critical to the vigorous enforcement of federal law.
Several writers stated that the lack of clarity on the matter created
by a variety of court and bar association opinions has had a chilling
effect on federal enforcement efforts. They stated that some federal
prosecutors fearful of the uncertain state of the law and unwilling to
risk their licenses to practice law have decided not to engage in
routine discussions with represented individuals. Second, several
writers described the practice of some attorneys to claim
representation of all the employees of a corporate client. They argued
that this practice, along with the uncertainty of the state of the
disciplinary rules, often makes it exceedingly difficult to investigate
wrongdoing by corporations or other organizations. Third, several
supporters of the previous proposal stated that they did not believe
that it was the intention of DR 7-104 and Model Rule 4.2 to apply to
criminal investigations. Furthermore, they argued that if the
prohibitions in those rules apply to all federal criminal and civil
investigations the result will be twofold: (1) Federal attorneys will
be forced to reverse the trend of the last 20 years and become less
involved in investigations; and (2) federal agents will stop consulting
with federal attorneys during investigations. Both of these trends will
result in less effective law enforcement.
The Department received several comments critical of the earlier
proposal. Those criticisms fall generally in four categories. First,
several individuals stated that they believed the proposal would exempt
Department attorneys from ethical requirements that apply to all other
attorneys, thus creating a double standard. Furthermore, they argued
that the proposal improperly equated constitutional minimums with
ethical conduct. Second, several writers argued that the Attorney
General did not have the authority to promulgate such a regulation.
They argued that the proposal unfairly impinged on the traditional
right of state supreme courts to monitor and discipline attorneys
admitted to practice before them. They also questioned whether the
drafters of the ``authorized by law'' exceptions could have intended
that the Attorney General would be empowered to release Department
attorneys from the obligations of the rules simply by issuing a
regulation.
Third, several people argued that the proposed regulation was not
necessary for the vigorous enforcement of the law. And fourth, several
writers commented on various aspects of the proposal itself. The most
common objection was to the ``controlling individual'' test that the
proposal used to determine whether communications with a particular
employee of a represented corporation would be permissible. They argued
that the test was much too narrow and would only apply to a
corporation's general counsel and a small handful of very senior
executives.
The Department has reviewed, analyzed and carefully considered all
the comments it received and has made substantial revisions to its
earlier proposal based on these comments. The Department believes the
current proposal, in combination with the proposed additions to the
United States Attorneys' Manual, appropriately addresses the concerns
of the commenters critical of the earlier proposal, while preserving
the Department's ability to enforce federal laws. Due to the
significant nature of the changes made, the Department determined that
an additional comment period is appropriate.
III. Section-by-Section Analysis
Section 77.1 Purpose and Authority
This section includes no material changes from the rule published
earlier. It does, however, include additional discussion regarding the
purpose of the rule.
The Attorney General's authority to establish standards of conduct
for Department of Justice attorneys derives from two distinct sources:
Section 301 of title 5, United States Code, and title 28 of the United
States Code, which, through a variety of provisions, authorizes the
Attorney General and the Department of Justice to enforce federal law.
Section 301 states that ``[t]he head of an Executive department or
military department may prescribe regulations for the government of his
department, the conduct of its employees, [and] the distribution and
performance of its business.'' Authority to promulgate this rule also
is implicit in the Attorney General's statutory power to ``supervise
all litigation'' to which the United States is a party and to direct
United States Attorneys and other subordinate attorneys in the
``discharge of their respective duties.'' 28 U.S.C. 519. Other specific
statutory references are indicated in the text of the rule.
Section 77.2 Definitions
This section is substantially similar to the definitional section
of the previous proposal. Two changes, however, are worthy of
attention:
``Attorney for the Government''
First, the definition of ``attorney for the government'' has been
refined explicitly to exclude from the definition those law enforcement
agents employed by the Department of Justice who are also members of
state bars, if they are employed as, and are performing the function
of, agents rather than attorneys. The Federal Bureau of Investigation,
Drug Enforcement Agency and other investigative agencies have long
recruited individuals with advanced degrees--including, for example,
engineering, business and law degrees--to serve as agents. The
Department strongly encourages the recruitment of educated and
specially trained individuals for positions as agents. An agent's bar
membership should not adversely affect his or her ability to conduct
comprehensive investigations and otherwise to fulfill his or her law
enforcement functions. Therefore, the proposed rule specifically
exempts attorney-agents from its scope if they are employed by the
government as investigative agents and not as attorneys.
``Undercover Investigation''
Second, the section now includes a definition of the term
``undercover investigation.'' Under this definition, the hallmark of an
``undercover operation'' is an investigation in which an individual
``whose identity as an official of the government or a person acting at
the behest thereof is concealed or is intended to be concealed.'' This
definition is intended to be read broadly to include virtually every
type of law enforcement investigation in which the identity of a
government employee, or the fact that an individual is cooperating with
the government, is concealed.
Section 77.3 Represented Party; Represented Person
This section differs significantly from the corresponding section
in the earlier proposal in order more closely to follow the language in
DR 7-104(a)(1) and Rule 4.2, which establish general prohibitions
against ex parte contacts with a represented party, and to
differentiate between those individuals who are represented by counsel
and have become a party to a proceeding, and those represented
individuals who are not parties to any relevant proceedings.
An individual is considered to be a ``represented party'' under
these rules if: (1) The person is represented by counsel; (2) the
representation is current and concerns the subject matter in question;
and (3) the person has either been arrested or charged in a federal
criminal case or is a defendant in a civil law enforcement proceeding
concerning the subject matter of the representation. If the person is
currently represented in fact regarding the subject matter in question,
but has not been charged or arrested, that person is considered a
``represented person.'' Thus, witnesses, suspects and targets of
investigations who have not been indicted or arrested are considered
represented persons under this rule and in the United States Attorneys'
Manual guidelines.
Section 77.5 of this rule generally prohibits government attorneys
from initiating ex parte contacts with represented parties, but does
not prohibit ex parte contacts with represented persons. (However,
Secs. 77.8 and 77.9 prohibit some contacts with represented persons as
well.) This distinction between represented parties and represented
persons is consistent with the rulings of the vast majority of federal
courts to consider the issue. See United States v. Infelise, 773 F.
Supp. 93, 95 n.3 (N.D. Ill. 1991) (DR 7-104(A)(1) ``speaks in terms of
communications with a `party', suggesting that the rule is to be
applied only when adversarial proceedings have been initiated.'');
United States v. Ryans, 903 F.2d 731, 739 (10th Cir.) (``We are not
convinced that the language of [DR 7-104(A)(1)] calls for its
application to the investigative phase of law enforcement'' because
``the rule appears to contemplate an adversarial relationship between
litigants, whether in a criminal or a civil setting.''), cert. denied,
498 U.S. 855 (1990); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir.
1983) (agent's ``noncustodial interview of [suspect] prior to the
initiation of judicial proceedings against the appellant did not
constitute an ethical breach''); United States v. Kenny, 645 F.2d 1323,
1339 (9th Cir.), cert. denied, 452 U.S. 920 (1981); United States v.
Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973), cert. denied, 415 U.S.
989 (1974); In re U.S. Dept. of Justice Antitrust Investigation, 1992-2
Trade Cases (CCH) 69,933, at 68,469 (D. Minn. 1992) (Rule 4.2 held
inapplicable because ``[t]he word `parties' in Rule 4.2 indicates the
presence of a lawsuit'' and ``[t]he present controversy relates to an
investigation, not a lawsuit''); United States v. Western Electric Co.,
Inc., 1990-2 Trade Cases (CCH) 69,148, at 64,314 & n.6 (D.D.C. 1990);
United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987);
Faragher v. National R.R. Passenger Corp., 1992 U.S. Dist. LEXIS 1810
at *2-3 (E.D. Pa. 1992). Only the Second Circuit has suggested that DR
7-104(A)(1) may apply to federal law enforcement activities before
indictment or arrest. See United States v. Hammad, 858 F.2d 834, 838-39
(2d Cir. 1988); United States v. Pinto, 850 F.2d 927, 935 (2d Cir.),
cert. denied, 488 U.S. 867 (1988); United States v. Sam Goody, Inc.,
518 F. Supp. 1223, 1224-25 n.3 (E.D.N.Y. 1981), appeal dismissed, 675
F.2d 17 (2d Cir. 1982).
Section 77.4 Constitutional and Other Limitations
This section is substantially similar to the corresponding section
in the earlier proposal. The section has been revised slightly to make
clear that although the proposed rule does not supersede the Federal
Rules of Civil Procedure and the Federal Rules of Criminal Procedure,
this limitation does not extend to other rules regarding procedure in
federal courts. Thus, rules of procedure adopted by individual courts
as local rules, many of which incorporate state bar rules, are not
included in this limitation.
Section 77.5 General Rule for Civil and Criminal Enforcement;
Represented Parties
This section, as well as sections 77.6 through 77.9, differs
substantially from corresponding sections contained in the earlier
proposal.
This section closely tracks the language of DR 7-104(A)(1) and Rule
4.2 and applies similar prohibitions to attorneys for the government.
The section prohibits an attorney for the government from communicating
with a represented party, as defined in Sec. 77.3, about the subject
matter of the representation without the consent of that individual's
attorney. The prohibition applies, however, only if the attorney for
the government knows that the represented party is, in fact,
represented by counsel. Therefore, communications by an attorney for
the government with a represented party will not violate this rule if
the attorney for the government is unaware of the fact of
representation.
This section also prohibits an attorney for the government from
causing another individual to communicate with a represented party.
Accordingly, a government investigator acting at the attorney's
direction and control may not do what the attorney himself or herself
is prohibited from doing. Conversely, a government attorney will not be
personally responsible for the actions of agents in communicating with
represented persons unless, in doing so, the agents were acting as the
attorney's ``alter ego.''
It also should be noted that this provision is violated (and thus,
a basis for departmental discipline exists) when an inappropriate
communication takes place, regardless of whether or not the
communication results in eliciting an inculpatory statement or is
otherwise prejudicial to the represented party.
Section 77.6 Exceptions; Represented Parties
This section describes the circumstances under which Department
attorneys may communicate, or cause others to communicate, with a
represented party who the Department attorney knows is represented
concerning the subject matter of the representation without first
obtaining the consent of the represented party's counsel. The
exceptions enumerated in this section are similar to, but not identical
with, the exceptions enumerated in Sec. 77.7 of the earlier proposal.
Paragraph (a): Determination if Representation Exists
This exception recognizes the fact that there is no reason to
prohibit a limited inquiry about whether an individual is, in fact,
represented by counsel regarding the relevant subject matter. Such an
inquiry does not involve the kind of communication about which courts
have expressed concern and has little potential for undermining the
attorney-client relationship.
There may be uncertainty about the existence of representation with
respect to whether it has been established, whether it may have been
terminated, and whether a particular subject falls within the scope of
the representation. The first issue may arise when a judicial or other
appearance has not occurred, but the government attorney has some
information suggesting that the person may be represented. It may also
arise when an attorney purports to represent a group of persons, such
as all the employees of a corporation. Uncertainty about the
termination of the representation may arise when substantial time has
passed since it was made known that the person was represented by
counsel or when the attorney for the government has reason to believe
that the representation has ceased. It is unlikely, however, that such
uncertainty will arise when there are pending judicial proceedings,
since the court must approve termination of representation.
When inquiring about the status of representation, government
attorneys and agents generally must refrain from stating whether it is
necessary or desirable to be represented by counsel. After the right to
counsel has attached, a statement or implication suggesting that
counsel is not providing proper or effective representation could
violate the Sixth Amendment right to effective assistance of counsel.
See United States v. Morrison, 449 U.S. 361, 364 (1981).
This exception is not intended to and does not create a duty on the
part of the attorney for the government to inquire about the status of
representation. However, if the attorney for the government has any
reason to believe that the individual is represented by counsel with
regard to the relevant subject matter, he or she should, as a matter of
course, make the appropriate inquiries before engaging in substantive
discussions with the individual.
Paragraph (b): Discovery or Judicial or Administrative Process
Any communication that is authorized by discovery procedures, such
as a deposition of a party-opponent, or by judicial or administrative
process, such as a grand jury, deposition, or trial subpoena or an
administrative summons, obviously should not be prohibited by any rule.
See United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir. 1989), cert.
denied, 493 U.S. 1071 (1990) (prosecutor's questioning of represented
person before the grand jury outside the presence of counsel is
``authorized by law'' under DR 7-104). Among other reasons, a person
who is served with process has an opportunity to consult with counsel
prior to his or her appearance at the proceeding, and may have counsel
present if desired during the proceeding (except, of course, while
testifying before a grand jury). This provision ensures that such
communications continue to be allowed.
This exception does not purport to authorize any communications not
otherwise available pursuant to discovery procedures or legal process.
Paragraph (c): Initiation of Communication by Represented Party
One of the concerns most frequently raised by Department attorneys
during the comment period on the previous proposal was the lack of
clarity under current law regarding the propriety of communicating with
a represented party, in the absence of that party's counsel, when the
communication is initiated by the party. A defendant may wish to
communicate with the government outside the presence of counsel for
many valid reasons. Department attorneys repeatedly cited the situation
in which a defendant wants to cooperate with the government but does
not want his or her attorney to know for fear that the attorney will
disclose the defendant's intentions to others. This situation typically
arises when the defendant questions the loyalty of his or her attorney,
who is being paid by another individual involved in a criminal
enterprise. The same problem may arise when a single attorney
represents multiple parties who are part of the same criminal
enterprise.
When the desire of a defendant or arrestee to speak with the
attorney for the government outside the presence of his or her counsel
is ``voluntary, knowing and informed,'' there is no valid reason to
prohibit the government from engaging in such communications. In fact,
the Department believes that it would be a dereliction of its
obligation to enforce vigorously federal law if it promulgated a rule
that would prohibit such communications.
It is well established that an individual who is entitled to
counsel under the Fifth Amendment or the Sixth Amendment may waive that
right and choose to communicate with the government outside the
presence of his or her attorney, ``provided the waiver is made
voluntarily, knowingly and intelligently.'' Moran v. Burbine, 475 U.S.
412, 421 (1986) (internal quotations omitted); Patterson v. Illinois,
487 U.S. 285, 292 (1988); Brewer v. Williams, 430 U.S. 387, 404-06
(1977). In such a situation, the defendant should not be prohibited
from engaging in communications that are allowed by the Constitution by
a disciplinary rule that was intended to protect that individual in the
first place. Neither common sense nor the principles underlying DR 7-
104 and Rule 4.2 require such a result.
This paragraph amends the previous proposal by adding procedural
protections designed to ensure that such waivers are in fact voluntary,
knowing, and informed. After a represented individual has been arrested
or charged in a criminal proceeding or is named as a defendant in a
civil law enforcement proceeding, the proposed rule requires that
several steps be taken before any substantive discussions take place.
First, the government attorney must inform the individual of his or her
right to speak through his or her attorney and to have that attorney
present for any communications with the government attorney. Second,
the represented party must waive his or her right to counsel in such a
way as to indicate that the waiver is voluntary, knowing and informed.
If at all possible, the attorney for the government should obtain a
signed written waiver. Third, the attorney for the government must
bring the matter before the appropriate district court judge,
magistrate or other tribunal of competent jurisdiction. The court
should be asked for a determination: That the waiver satisfies the
provisions of this rule; or that substitute counsel is in place and
that counsel consents to the communication; or, in the alternative,
that it is appropriate for the court to appoint counsel.
The rule does not, however, require that the waiver take place
before the judge or magistrate. In exceptional circumstances, it may be
impractical or unsafe to bring the defendant before a judge or
magistrate to secure the waiver. In those cases, the tribunal must
determine in advance of substantive discussions, based on the evidence
before it, whether the waiver was made knowingly, intelligently and
voluntarily.
As noted above, the initiation of ex parte contacts by represented
parties frequently occurs in the context of the ``fearful defendant''
whose attorney has been chosen by a third party, often an individual
above the defendant in the criminal hierarchy. Such a defendant may
wish to cooperate with the government but may fear that his life or
safety will be endangered if his attorney learns of the cooperation.
Although the need for a mechanism by which a represented party can
initiate contacts with the government is particularly acute in this
context, paragraph (c) is not limited to this setting. Rather, the
proper inquiry is whether the represented party's waiver of the right
to counsel is voluntary, knowing, and informed--not whether the
represented party has established some overriding justification for his
or her decision.
Paragraph (d): Waivers at the Time of Arrest
Paragraph (c) of this section provides the general rule regarding
how a represented party may waive any protections otherwise provided
under this regulation. This paragraph provides for a more specific rule
dealing with a waiver at the time of arrest.
This paragraph provides that a government attorney may communicate
directly with a represented party without the consent of that party's
counsel at the time of his or her arrest if the represented party has
been fully informed of his or her Constitutional rights at that time
and has waived them. The government attorney need not comply with any
of the additional requirements of paragraph (c) in such a situation.
However, it is generally prudent to obtain a written waiver at the time
of arrest if possible.
This exception is intended to preserve the ability of government
attorneys to interview individuals immediately following arrest as an
effective and important law enforcement tool. A substantial body of law
has developed regarding the post-arrest waiver of various
Constitutional rights. The Department believes that the Constitutional
requirements identified in that decisional law adequately protect
represented individuals following arrest. Furthermore, the
effectiveness of post-arrest interviews would be significantly
curtailed if the procedural requirements of paragraph (c) applied.
Accordingly, this paragraph is intended to preserve this investigative
tool without adding any additional procedural requirements.
Paragraph (e): Investigation of Additional, Different or Ongoing Crimes
or Civil Violations
This paragraph is similar to, but not identical with, Sec. 77.7(d)
of the previously published proposal.
The Sixth Amendment right to counsel is ``offense-specific.''
McNeil v. Wisconsin, 111 S. Ct. 2204, 2207 (1991). Thus, a defendant
whose Sixth Amendment rights have attached as to one offense remains
subject to questioning, whether direct or covert, regarding uncharged
crimes. Id.; Maine v. Moulton, 474 U.S. 159, 180 n.16 (1985); United
States v. Mitcheltree, 940 F.2d 1329, 1342 (10th Cir. 1991); United
States v. Terzado-Madruga, 897 F.2d 1099, 1111-12 (11th Cir. 1990);
United States v. Chu, 779 F.2d 356, 368 (7th Cir. 1985); United States
v. Grego, 724 F.2d 701, 703 (8th Cir. 1984). The proposed rule employs
an analogous approach, permitting ex parte contacts with a represented
party if the contacts involve the investigation of offenses as to which
the represented party has neither been arrested nor charged in a
criminal or civil law enforcement proceeding. The Department believes
this approach is wholly consistent with DR 7-104 and Model Rule 4.2 and
the cases interpreting them.
Accordingly, this section provides that communications may be made
in the course of investigations of additional, different or ongoing
criminal or unlawful activity, even though the individual is
represented by counsel with respect to conduct for which he or she has
already been arrested or charged. Such additional criminal or unlawful
conduct is typically one of three varieties: (1) Conduct that is
separate from the original wrongful conduct; (2) crimes that are
intended to impede the trial of the charged crime or unlawful conduct,
such as subornation of perjury, obstruction of justice, jury tampering,
or murder, assault, or intimidation of witnesses; and (3) conduct that
is a continuation of the charged crime, such as a conspiracy or scheme
to defraud that continues past the time of indictment. The new or
additional criminal or wrongful activity may have occurred in the past
or may be ongoing at the time of the investigation.
By definition, communications pursuant to this exception will take
place when the represented party is the subject of pending criminal or
civil enforcement charges for which he or she is represented by
counsel. Government attorneys must take extreme care to avoid violating
the Sixth Amendment right to counsel whenever they invoke this
exception in the criminal context. In particular, care must be taken to
avoid the deliberate elicitation of incriminating information regarding
any pending criminal charges.
Paragraph (f): Imminent Threat to Safety or Life
The Supreme Court has recognized that, in certain limited
situations, otherwise applicable constitutional requirements may be
suspended by the need to guard against threats to public safety. See
Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (warrantless search
permissible when delay would endanger lives of officers and citizens);
New York v. Quarles, 467 U.S. 649, 657 (1984) (``the need for answers
to questions in a situation posing a threat to the public safety
outweighs the need for the [Miranda] prophylactic rule protecting the
Fifth Amendment's privilege against self-incrimination''). Paragraph
(f) recognizes an analogous exception to the general prohibition
against communications with represented parties in the absence of their
counsel. It is the Department's intention that this exception be
invoked only in rare circumstances and only for the purpose of
protecting human life or safety.
The exception has three requirements: (1) The attorney for the
government must have a good faith belief that the safety or life of any
person is threatened; (2) the purpose of the communication must be to
obtain information to protect against the risk of injury or death; and
(3) the attorney for the government must, in good faith, believe that
the communication is reasonably necessary to protect against such risk.
These requirements are imposed to ensure that the exception is invoked
only to protect human life or safety, and not as a routine matter in
violent crime prosecutions. For example, the fact that potentially
dangerous firearms have not been recovered would not in and of itself
be sufficient under ordinary circumstances to constitute a threat to
safety under this exception. Furthermore, the communication must be for
the purpose of protecting human life or safety, and may not be designed
to elicit testimonial evidence. However, information thus obtained may
be used for any purpose consistent with Constitutional limitations.
Section 77.7 Civil and Criminal Enforcement; Represented Persons
As addressed in the discussion of Sec. 77.3, individuals and
organizations who are neither defendants nor arrestees are not
``parties'' within the meaning of this rule, and the general
prohibition on ex parte contacts therefore does not apply. This section
makes clear that attorneys for the government are authorized to
communicate, directly or indirectly, with a represented person unless
the contact is prohibited by some other provision of federal law. These
communications are subject, however, to the restrictions set forth in
Secs. 77.8 and 77.9. Furthermore, proposed changes to the United States
Attorneys' Manual included in this commentary will provide additional
guidance to Department attorneys in such situations.
Section 77.8 Represented Persons and Represented Parties; Plea
Negotiations
This section prohibits government attorneys from initiating or
engaging in negotiations of certain specified legal agreements with any
individual who the government attorney knows is represented by counsel,
without the consent of that individual's counsel. Even when substantive
discussions with a represented party or represented person are
permissible under these regulations, it ordinarily would be improper
for a government attorney to initiate or negotiate a plea agreement,
settlement, immunity agreement or any other disposition of a claim or
charge in the absence of the individual's counsel. The one exception to
this prohibition occurs when the communication is initiated by the
represented person or represented party and the procedural safeguards
provided for in Sec. 77.6(c) are satisfied.
The Department believes that this section is vitally important for
the preservation of the attorney-client relationship. One of the
primary purposes informing Rule 4.2 and DR 7-104 is that an individual
represented by counsel should be protected from overreaching by an
attorney for an adversary. The Department believes the risk of such
overreaching is greatest during negotiations over plea agreements,
settlements and other key legal agreements. The training, experience
and knowledge of the law possessed by an attorney is particularly
valuable in such situations.
The prohibition contained in this section includes all discussions
of the terms of a particular plea agreement, settlement agreement or
other agreement covered by the section. However, this section does not
prohibit an attorney for the government from responding to questions
regarding the nature of such agreements, potential charges, potential
penalties or other subjects related to such agreements during an
otherwise permissible discussion. Nevertheless, an attorney for the
government should take care in such situations not to go beyond
providing information on these and similar subjects and should
generally refer the represented person to his or her counsel for
further discussion of these issues. The government attorney should also
make it clear that he or she will not negotiate any agreement with
respect to the disposition of criminal charges, civil claims or
potential charges or claims or immunity without the presence or consent
of counsel.
Section 77.9 Represented Persons and Represented Parties; Respect for
Attorney-Client Relationships
When an attorney for the government communicates with a represented
party pursuant to one or more of the exceptions listed in Sec. 77.6, or
with a represented person pursuant to Sec. 77.7, the communication is
nevertheless subject to the restrictions of this section.
Paragraph (a): Deference to Attorney-Client Relationship
DR 7-104(A)(1) and Rule 4.2 protect a represented party's right, if
he or she so chooses, to communicate with his or her adversary only
through counsel. The rules do not compel one to make that choice, and
the represented party may elect to speak directly with the government
despite his or her attorney's advice not to do so. As a further
protective measure, federal courts have recognized that it is improper
for an attorney for the government to disparage counsel for the
represented party or otherwise to seek to disrupt the relationship
between that party and his attorney. See, e.g., United States v.
Morrison, 449 U.S. 361, 362, 367 (1981); United States v. Weiss, 599
F.2d 730, 740 (5th Cir. 1979); id. at 740-41 (Godbold, J., specially
concurring). This paragraph codifies those basic principles by
prohibiting communications that: (1) Attempt to elicit information
regarding lawful defense strategies; (2) disparage the represented
party's counsel; or (3) otherwise disrupt the attorney-client
relationship. These prohibitions apply in every phase of criminal and
civil enforcement investigations and proceedings.
However, the paragraph also accommodates an important exception to
this prohibition. Courts have held that a government attorney may not
permit legal proceedings to go forward if he or she is aware of a
conflict of interest between a represented party and his or her lawyer.
See United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986). Under
these circumstances, the attorney for the government ordinarily should
move to disqualify the lawyer involved, if legal proceedings have
already commenced. If it is not feasible to move for disqualification
or otherwise challenge the representation, this paragraph allows an
attorney for the government to communicate with the represented
individual for the limited purpose of apprising the represented
individual of the perceived conflict. However, any substantive
discussion of the subject matter of the representation is permissible
only insofar as it is authorized by some other provision of this rule.
In order to ensure that this provision is used only in rare
circumstances, the rule would require prior authorization for such
communications from the Attorney General, the Deputy Attorney General,
the Associate Attorney General, an Assistant Attorney General or a
United States Attorney. The authorization should be in writing if at
all possible. Furthermore, before providing approval, the authorizing
officer must find: (1) A substantial likelihood of a conflict; and (2)
that it is not feasible to obtain a court order on the matter.
Paragraph (b): Attorney-Client Meetings
The attendance of an undercover agent or a cooperating witness at
lawful meetings of an individual and his or her attorneys is ordinarily
an improper intrusion into the attorney-client relationship. The courts
have recognized, however, that such attendance occasionally will be
required when the operative is invited to participate and his or her
refusal to do so would effectively reveal his or her connection to the
government. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 557 (1977);
United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985); United
States v. Mastroianni, 749 F.2d 900, 906 (1st Cir. 1984). As the First
Circuit has noted, a contrary rule ``would provide the defense with a
quick and easy alarm system to detect the presence of any informants,
simply by inviting all known associates of defendants to a supposed
defense strategy meeting.'' Mastroianni, 749 F.2d at 906.
Attendance at such meetings, however, intrudes into the attorney-
client relationship and impairs the right of the defendant to a fair
trial. Accordingly, this section provides that undercover agents or
cooperating witnesses may participate in such meetings, but only when
requested to do so by the defense and when reasonably necessary to
protect their safety or life, or the confidentiality of an undercover
operation. See Weatherford, 429 U.S. at 557 (informant went to meeting
``not to spy, but because he was asked and because the State was
interested in retaining his undercover services on other matters and it
was therefore necessary to avoid raising the suspicion that he was in
fact the informant whose existence [the defendant and his counsel]
already suspected'').
However, even when an undercover operative's attendance at such a
meeting is authorized to protect his or her cover and safety, any
information acquired regarding lawful defense strategy or trial
preparation may not be communicated to government attorneys or
otherwise used to the substantial detriment of the represented party.
See Weatherford, 429 U.S. at 558; Ginsberg, 758 F.2d at 833;
Mastroianni, 749 F.2d at 906. As a safeguard, this rule provides that
such information should not be communicated to the attorneys for the
government or law enforcement agents who are participating in the trial
of the pending criminal charges.
When there is reasonable cause to believe that the purpose of the
meeting is not the lawful defense of the underlying charges, but the
commission of a new or additional crime (such as bribery of a witness
or subordination of perjury), attendance by informants or undercover
agents at attorney-client meetings is permissible pursuant to
Sec. 77.6(e). The belief, however, must be based on reasonable cause,
not mere suspicion or conjecture. See Mastroianni, 749 F.2d at 906.
Furthermore, the prohibition against communication of lawful defense
strategy to the prosecution should be observed if, in fact, such
strategy is imparted to the informant or agent.
Government attorneys should give serious consideration to the
extreme sensitivity of permitting agent and informant attendance at
defense meetings. Agents and informants should be instructed to avoid
participating in such meetings, and to minimize their participation
when attendance is required, if it is possible to do so without
arousing suspicion. Agents or witnesses who attend defense meetings
should also be instructed to avoid taking any role in the shaping of
defense strategy or trial preparations. Finally, agents and informants
should be instructed to avoid imparting defense strategy or trial
preparation information to any other law enforcement officials if
reasonably feasible to do so.
Finally, this restriction applies only to law enforcement officials
and cooperating witnesses who are acting as ``agents for the
government'' at the time of the communication. If one of several co-
defendants who attended an attorney-client defense strategy meeting
later testifies for the government at trial, no violation will have
occurred as long as the co-defendant was not a government agent at the
time of the meeting. United States v. Brugman, 655 F.2d 540, 545-46
(4th Cir. 1981).
Section 77.10 Organizations and Employees
This section is similar in structure to Sec. 77.13 of the
previously published proposal. However, it includes several substantive
changes based on comments received during earlier comment periods.
The issue addressed by this section--when should a communication
with an employee or member of a represented organization be considered
a communication with the organization itself--is one of the most
difficult issues addressed by these regulations. It was also perhaps
the most commented upon provision during the comment period. Several
federal prosecutors commented that they regularly encounter attorneys
who assert that they represent every individual in a large corporation
or organization. Others stated that these blanket claims of
representation extend to all the former employees as well. These
prosecutors argued for a bright line rule to prevent such abuse and
generally commented favorably on the earlier proposal. Others argued
that the earlier proposal was too narrow in scope and would deprive
corporations and other organizations of the effective assistance of
counsel.
The Department believes that this section, and particularly the
definition of ``controlling individual'' in Sec. 77.10(a), strikes an
appropriate balance, one that ensures government attorneys the ability
to enforce federal law, while preserving the opportunity for
corporations and other organizations to secure effective assistance of
counsel.
Paragraph (a): Communications With Current Employees; Organizational
Representation
This paragraph states that a communication with a current employee
of an organizational party or person should be treated as a
communication with the organization for purposes of this part only if
the employee is a controlling individual. If a communication with a
current employee is considered to be a communication with a represented
organization under these rules (that is, if the communication is with a
controlling individual), then that communication is subject to the same
limitations that would apply if the communication were directly with
the represented organization.
In accord with the basic structure of this part, which
distinguishes between represented parties and represented persons, this
paragraph effectively provides that when an organization is a
represented party, an attorney for the government shall not
communicate, or cause another to communicate (subject to the exceptions
enumerated in Sec. 77.6), with any controlling individual of the
organization without the consent of the organization's attorney. In
contrast, when an organization qualifies as a represented person, an
attorney for the government may communicate, or cause another to
communicate, with any controlling individual if the communication does
not involve negotiations of a plea agreement, settlement, statutory or
non-statutory immunity agreement, or other disposition of actual or
potential criminal charges or civil enforcement claims, or sentences or
penalties, as prohibited by Sec. 77.8, and if the communication does
not violate the provisions of Sec. 77.9.
The definition of ``controlling individual'' is intended to
encompass those individuals who typically are part of the
organization's control group. A controlling individual under this
definition must: (1) Be a current employee or member of the
organization; (2) hold a high level position with the organization; (3)
participate ``as a decision maker in the determination of the
organization's legal position in the proceeding or investigation of the
subject matter''; and (4) be known by the government to be engaged in
such activities. This definition attempts to identify those limited
number of individuals affiliated with the organization who actually are
involved in determining the organization's position with regard to the
legal proceeding or investigation.
DR 7-104 and Rule 4.2 are intended to protect the attorney-client
relationship from unnecessary interference and to protect represented
parties from overreaching by opposing counsel. Communications with
those high-level individuals affiliated with or employed by an
organization who are responsible for employing and directing the
organization's counsel and for determining legal positions taken by the
organization are the type of communications prohibited by DR 7-104.
Accordingly, this paragraph defines ``controlling individual''
consistent with the principles underlying the disciplinary rules on ex
parte contacts.
Of all the issues pertaining to 7-104(A)(1), the issue of
organizational representation has engendered the greatest confusion and
disagreement among the lower federal courts. Courts considering the
question have applied a variety of modes of analysis, either singly or
in combination. The Department believes the best approach is that
adopted by those courts that have attempted to identify an
organization's ``control group.'' See, e.g., Shealy v. Laidlaw Bros.,
34 FEP Cases 1223, 1225 (D.S.C. 1984) (a corporate ``party'' under DR
7-104(A)(1) includes ``a person whose employer's interests are, by
virtue of his position of employment, so close to his own and to his
heart that he could be depended upon in all events to carry out his
employer's direction''); B.H. by Monahan v. Johnson, 128 F.R.D. 659,
663 (N.D. Ill. 1989) (``only `those individuals who can bind it [the
defendant] to a decision or settle controversies on its behalf' would
be considered parties for purposes of DR 7-104''); Frey v. Department
of Health & Human Servs., 106 F.R.D. 32, 35 (E.D.N.Y. 1985) (``the Rule
applies to those employees of a government agency who are the `alter
egos' of the entity, that is, those individuals who can bind it to a
decision or settle controversies on its behalf''); Fair Auto. Repair v.
Car-X Serv. Systems, 128 Ill.App.3d 763, 771, 471 N.E.2d 554, 560
(1984) (DR 7-104(A)(1) prohibits ex parte contacts with corporate
defendant's ``control group,'' defined as ``those top management
persons who had the responsibility of making final decisions and those
employees whose advisory roles to top management are such that a
decision would not normally be made without those persons' advice or
opinion or whose opinions in fact form the basis of any final
decision'').
The Department believes that the ``control group'' approach most
accurately reflects the values underlying DR 7-104(A)(1) and Rule 4.2.
This approach properly seeks to identify those employees who exercise
such sufficient authority within the organization that communications
with them should be regarded as communications with the organization
itself. The Department also believes that the alternative approaches
would impose unacceptable constraints on federal law enforcement.
Paragraph (b): Communications With Former Employees; Organizational
Representation
This paragraph authorizes communications with former employees of
represented organizations. Because former employees do not direct the
affairs of the organization and therefore cannot be considered members
of the ``control group'' or any other controlling entity of an
organization, communications with them are not considered
communications with the organization for purposes of the proposed rule.
This reasoning is consistent with the conclusion of the majority of
federal courts that have held that DR 7-104(A)(1) does not bar
communications with former employees of a represented corporate party.
See, e.g., Hanntz v. Shiley, Inc., 766 F. Supp. 258, 267 & n.8 (D.N.J.
1991); Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F.
Supp. 899, 904 (E.D.Pa. 1991); Shearson Lehman Bros., Inc. v. Wasatch
Bank, 139 F.R.D. 412, 417-18 (D.Utah 1991); Sherrod v. Furniture
Center, 769 F. Supp. 1021, 1022 (W.D. Tenn. 1991); Dubois v. Gradco
Systems, Inc., 136 F.R.D. 341, 345 n.4 (D.Conn. 1991); Polycast
Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 628 (S.D.N.Y.
1990). See also ABA Comm. on Ethics and Professional Responsibility,
Formal Op. 359 (1991) (``Accordingly, it is the opinion of the
Committee that a lawyer representing a client in a matter adverse to a
corporate party that is represented by another lawyer may, without
violating Model Rule 4.2, communicate about the subject of the
representation with an unrepresented former employee of the corporate
party without the consent of the corporation's lawyer.''). But see PPG
Industries, Inc. v. BASF Corp., 134 F.R.D. 118, 121 (W.D.Pa. 1990);
Public Serv. Elec. & Gas v. Associated Elec. & Gas, 745 F. Supp. 1037,
1042 (D.N.J. 1990).
Paragraph (c): Communications With Former or Current Employees;
Individual Representation
This paragraph provides that if a former or current employee or a
member of an organization retains his or her own counsel, the
government shall provide the same protection to him or her that would
be provided under this part to any other represented person or
represented party. Communications with that individual are subject to
the limitations set forth in this part. Although this section provides
the general rule for such communications, paragraph (d) addresses the
specific situation in which a controlling individual of a represented
organization retains separate counsel.
This paragraph also provides that the government will not accept,
for purposes of this rule, blanket claims by counsel that he or she
represents all or a large number of employees of the organization. It
is important to note that this provision is only relevant when the
attorney for the government would be prohibited by some other provision
of this part from contacting an individual falling under the broad
claims of representation under question. For example, an attorney for
the government may contact a low-level employee of a corporation,
without consent of that employee's counsel or the corporation's
counsel, regarding a matter for which the corporation has already been
indicted as part of an undercover or overt factual investigation, if
that individual has not been arrested or named as a defendant in a
criminal or civil law enforcement proceeding. Therefore, the fact that
an attorney has stated that he or she represents that individual will
have no bearing on whether the communication is proper.
However, if a particular communication with an individual employee
included in such a claim of representation would be improper under
these regulations if he or she were in fact represented by counsel (for
example, communications to negotiate a plea agreement), then this
paragraph provides that a government attorney must first inquire
whether the employee is in fact represented before undertaking
substantive communications with the employee. As part of this inquiry,
the government attorney is not required to disclose to the employee the
fact that counsel has asserted that he or she represents the employee.
If the employee indicates that he or she is not represented by counsel,
it is proper for the government attorney to treat the employee as
unrepresented. If the employee indicates that he or she is represented
by counsel with regard to the relevant subject matter, the attorney for
the government shall treat that employee as a represented person or
represented party, and any further communications with that individual
shall be governed by this part.
Paragraph (d): Communications With Separately Represented Controlling
Individuals
This paragraph ensures that communications with a controlling
individual of an organization that qualifies as a represented party are
subject to basically the same limitations, regardless of whether the
controlling individual has retained separate counsel on the same
subject matter. Thus, this paragraph only applies in the circumstances
in which a controlling individual of a represented organizational party
retains separate counsel. In such circumstances, a government attorney
may not communicate with the controlling individual without the consent
of that individual's separate counsel unless the communication
satisfies one of the exceptions contained in Secs. 77.6 or 77.9 of this
part. The paragraph also allows such communications if the individual
does not qualify as a represented party, initiates the communication,
and waives the presence of counsel. Thus, the same rules apply to
contacts with controlling individuals of represented organizational
parties who retain separate counsel as apply to controlling individuals
of represented organizational parties who are not separately
represented.
Paragraph (e): Communications With Unrepresented Controlling
Individuals
This paragraph addresses a relatively narrow circumstance: when a
controlling individual who is not individually represented by counsel
initiates a communication with the government outside the presence of
counsel for the organization. An attorney for the government may
participate in such communications if: (1) The controlling individual
indicates that he or she is speaking exclusively in his or her personal
capacity and not as a representative of the organizational party; and
(2) he or she indicates that the waiver of counsel is voluntary,
knowing and informed and, if willing, signs a statement to that effect.
The fact that the controlling individual indicates that he or she is
speaking in his or her personal capacity does not mean, however, that
incriminating testimony received from the controlling individual cannot
be used against the represented organization.
If the controlling individual is also a named defendant in a civil
enforcement proceeding or has been arrested or charged in a criminal
action, the requirements set forth in Sec. 77.6(c) must be satisfied
before any substantive communications are made.
Paragraph (f): Multiple Representation
This paragraph makes clear that the proposed regulations should not
be construed as altering existing legal and ethical rules regarding the
propriety of multiple representation.
Section 77.11 Enforcement of Rules Paragraph (a): Enforcement by
Attorney General
In order to ensure consistency and uniformity in the interpretation
of the proposed rule, this paragraph provides that the Attorney General
shall have exclusive authority to enforce these regulations. Thus,
neither state courts nor state disciplinary boards may impose sanctions
on a Department attorney for violations of this rule or state or local
rules governing communications with represented parties except as
provided in Sec. 77.12. This paragraph further provides the framework
for investigating allegations that a Department attorney has violated
these regulations. It provides that the Department's Office of
Professional Responsibility (``OPR'') shall have jurisdiction to
investigate such allegations and that violations will be treated as
matters of attorney discipline. See 28 CFR 0.39 (establishing and
defining duties of OPR). It also makes clear that the Attorney
General's determination as to whether a violation has occurred shall be
final and conclusive except to the extent that the Department attorney
enjoys a right of review provided by other laws.
Paragraph (b): No Private Remedies
This paragraph provides that the proposed regulations are not
intended and will not create any substantive rights for any person
other than an attorney for the government. In particular, a violation
of the rule will not provide a basis for the dismissal of civil or
criminal charges or for the suppression of evidence that is otherwise
admissible. This provision accords with existing law. Traditionally,
matters relating to communications with represented persons have been
treated as matters of attorney discipline without granting substantive
rights to defendants or any other persons. See, e.g., ABA Code of
Professional Responsibility, Preliminary Statement; ABA Model Rules of
Professional Conduct, Scope. Of course, when the communication with a
represented person or represented party violates the Constitution, the
federal courts retain the power to fashion appropriate remedies.
Section 77.12: Relationship to State and Local Regulation
Both DR 7-104 and Model Rule 4.2 provide that communications that
are ``authorized by law'' are not prohibited by the rule. Virtually all
the states have adopted some version of DR 7-104 or Model Rule 4.2 that
includes an ``authorized by law'' exception. These proposed rules, as
substantive regulations duly promulgated by the Attorney General
pursuant to statutory authority, have the force and effect of law. See
e.g. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). Accordingly,
communications with represented persons that are undertaken pursuant to
these rules should be considered ``authorized by law'' within the
meaning of rules adopted by the various states. Such communications
will therefore be consistent with state rules wherever state bar
authorities have adopted a rule containing the ``authorized by law''
exception. Furthermore, no conflict will arise between state and
federal law in those jurisdictions with regard to communications with
represented persons.
In those states that do not currently include an ``authorized by
law'' exception or repeal current provisions, the proposed rule may
conflict with their provisions governing communications with
represented parties. The second sentence of this section provides that
in those cases the proposed regulations will preempt the application of
conflicting state and local rules as they relate to contacts by
Department of Justice attorneys. The longstanding position of the
Department is that the Supremacy Clause bars ``any attempt by a state
bar association to impose sanctions on a government attorney who is
acting lawfully and in pursuance of his federal law enforcement
responsibilities.'' See Ethical Restraints of the ABA Code of
Professional Responsibility on Federal Criminal Investigations, 4B Op.
O.L.C. 576, 601-02 (1980). It is clear that a Department regulation
published after notice and comment constitutes ``federal law.'' See,
e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) (``It has been
established in a variety of contexts that properly promulgated,
substantive agency regulations have the 'force and effect of law''').
It is also clear that a properly promulgated Department rule is binding
upon state authorities and supersedes contrary provisions of state law.
The Supreme Court has recognized that ``[f]ederal regulations have no
less pre-emptive effect than federal statutes.'' Fidelity Fed. Sav. &
Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153 (1982). Accord, e.g.,
City of New York v. FCC, 486 U.S. 57, 63 (1988) (``[t]he phrase `Laws
of the United States' [in the Supremacy Clause] encompasses both
federal statutes themselves and federal regulations that are properly
adopted in accordance with statutory authorization''); Capital Cities
Cable, Inc. v. Crisp, 467 U.S. 691, 698-700 (1984).
Accordingly, to the extent the proposed regulations conflict with
state law, the regulations preempt the conflicting state law.
This section does, however, provide an important exception. If the
Attorney General finds that a Department attorney has willfully
violated these regulations, preemption will not apply. As a result, a
government attorney who willfully engages in communications that
violate these rules will be subject to disciplinary proceedings both by
the Department and by the appropriate state disciplinary authorities.
IV. United States Attorneys' Manual
In addition to the promulgation of the proposed regulations
discussed above, the Department proposes to add several new provisions
to the United States Attorneys' Manual to provide additional guidance
to Department attorneys when dealing with individuals or entities
represented by counsel during criminal or civil law enforcement
investigations and proceedings. Those provisions are set forth in full
below as part of this commentary.
The decision to include some restrictions in the Manual while other
restrictions are contained in the rule was an important one. In the
process of determining what the appropriate Departmental policy should
be, it became clear that any regulation would have to apply to a
variety of circumstances, including: White collar and organized crime
investigations, complex conspiracy investigations, individuals whose
counsel are paid by a third party, and individuals fearful of their
counsel for various reasons. Accordingly, the Department determined
that the regulations should be broad in scope and should provide
unambiguous guidance that would not adversely affect federal law
enforcement efforts. Thus, the regulations distinguish between the
investigative period before indictment, arrest, or the filing of a
complaint and the period after arrest or the commencement of formal
proceedings. They also distinguish between communications that are part
of a factual investigation and negotiations of plea agreements,
settlements and similar legal arrangements. At the same time, the
Manual revisions require that government attorneys consider the
principles underlying the basic prohibitions in a much wider variety of
circumstances.
The Department expects all Department attorneys involved in
criminal or civil law enforcement proceedings to adhere to these
provisions. Failure to do so will result in appropriate departmental
discipline.
There are two especially important provisions that should be
addressed.
First, Sec. 9-13.240 prohibits a government attorney from
communicating with a person known to be represented by counsel who the
government attorney knows is a target of a federal criminal or civil
enforcement investigation. The Manual provides several exceptions to
this general prohibition, including the following: When the
communication is initiated by the target; when the communication occurs
at the time of arrest and the represented person has waived his or her
Constitutional rights; when the government attorney believes the
contact is necessary to protect against a risk to human life or safety;
or when a senior Department official determines that exigent
circumstances exist, making the communication necessary for effective
law enforcement. In addition, Sec. 9-13.220 provides an exception to
the general prohibition if the communication is made in the course of
an undercover investigation.
``Target'' is defined as a ``person as to whom the attorney for the
government has substantial evidence linking that person to the
commission of a crime or to other wrongful conduct and as to whom the
attorney for the government anticipates seeking an indictment or naming
as a defendant in a civil law enforcement proceeding.'' Because an
individual who is a target of a federal investigation is typically in a
clearly adversarial relationship with the federal government, the
Department believes that the principles underlying DR 7-104 and Rule
4.2 are implicated and an extension of the prohibition contained in the
rule is appropriate.
In its enforcement of this provision, the Department intends to
give substantial deference to a federal attorney's good faith judgment
regarding the likelihood that a particular person will ultimately
become a defendant. Even if the attorney for the government believes
that an individual will probably be named as a defendant, that
individual is not considered a target until the government has actually
obtained substantial evidence linking that individual to the commission
of a crime or to unlawful conduct. The government attorney's
uncorroborated belief that an individual will ultimately be named as a
defendant is not enough. Thus, an individual is not considered a target
under this rule until both the attorney for the government believes
that he or she will probably be named as a defendant and substantial
evidence has been obtained.
The second provision that should be noted is the approval procedure
provided in Sec. 9-13.250. Under that provision, before an attorney for
the government communicates with any represented party or target, the
government attorney should obtain the approval of the United States
Attorney if the attorney is an Assistant United States Attorney, or the
approval of another appropriate supervisor. The provision also permits
contacts when prior approval is not feasible, and requires post-contact
documentation.
Additions to the United States Attorneys' Manual
The entire text of the planned additions to the Manual follows:
The following new section is added to title 9, chapter 13.
9-13.200 Communications With Represented Persons
9-13.210 Generally
28 CFR part 77 generally governs communications with represented
persons in law enforcement investigations and proceedings. This section
sets forth several additional departmental policies and procedures with
regard to such communications.
Department of Justice attorneys should recognize that
communications with represented persons at any stage may present the
potential for undue interference with attorney-client relationships and
should undertake any such communications with great circumspection and
care. This Department as a matter of policy will respect bona fide
attorney-client relationships whenever possible, consistent with our
law enforcement responsibilities and duties.
The rules set forth in 28 CFR part 77 are intended, among other
things, to clarify the circumstances under which government attorneys
may communicate with represented persons. They are not intended to
create any presumption that communications are necessary or advisable
in the course of any particular investigation or proceeding. Whether
such a communication is appropriate in a particular situation is to be
determined by the government attorney (and, when appropriate, his or
her supervisors) in the exercise of his or her discretion, based on the
specific circumstances of the individual case.
Furthermore, the application of this section, like the application
of 28 CFR part 77, is limited to communications between Department of
Justice attorneys and persons known to be represented by counsel during
criminal investigations and proceedings or civil law enforcement
investigations and proceedings. These provisions do not apply to
Department attorneys engaged in civil suits in which the United States
is not acting under its police or regulatory powers. Thus, state bar
rules and not these provisions will generally apply in civil suits when
the government is a defendant or a claimant.
Attorneys for the government are strongly encouraged to consult
with appropriate officials in the Department of Justice when the
application or interpretation of 28 CFR part 77 may be doubtful or
uncertain. The primary points of contact at the Department of Justice
on questions regarding 28 CFR part 77 and this section are the
Assistant Attorneys General of the Criminal and Civil Divisions, or
their designees.
9-13.220 Communications During Investigative Stage
Section 77.7 of title 28, Code of Federal Regulations, generally
permits communications with represented persons outside the presence of
counsel that are intended to obtain factual information in the course
of criminal or civil law enforcement investigations before the person
is a defendant or is arrested in a federal criminal case, or is a
defendant in a federal civil enforcement proceeding. Such
communications must, however, have a valid investigative purpose and
comply with the procedures and considerations set forth below.
During the investigative stage of a case, an attorney for the
government may communicate, or cause another to communicate, with any
represented person, including a ``target'' as defined in section 9-
13.240, concerning the subject matter of the representation if the
communication is made in the course of an undercover investigation of
possible criminal or wrongful activity. Undercover communications
during the investigative stage must be conducted in accordance with 28
CFR Sec. 77.2(f), and relevant policies and procedures of the
Department of Justice, as well as the guidelines for undercover
operations of the federal law enforcement agency conducting the
investigation (e.g., the Attorney General's Guidelines on FBI
Undercover Operations).
Overt communications during the investigative stage are subject to
the procedures and considerations set forth in sections 9-13.230 - 9-
13.233 and 9-13.240 - 9-13.242, below.
9-13.230 Overt Communications With Represented Persons
During the investigative stage of a criminal or civil enforcement
matter, an attorney for the government as a general rule should
communicate overtly with represented persons outside the presence of
counsel only after careful consideration of whether the communication
would be handled more appropriately by others. Attorneys for the
government may not, however, cause law enforcement agents to make
communications that the attorney would be prohibited from making
personally.
28 CFR 77.8 prohibits an attorney for the government from
initiating or engaging in negotiations of a plea agreement, immunity
agreement, settlement, sentence, penalty or other disposition of actual
or potential civil or criminal charges with a represented person
without the consent of counsel. Discussion of the terms of a particular
plea agreement, immunity agreement or other agreement covered by the
rule is prohibited. However, the attorney for the government is not
prohibited from responding to questions regarding the general nature of
such agreements, potential charges, potential penalties or other
subjects related to such agreements. In such situations, an attorney
for the government should take care not to go beyond providing
information on these and similar subjects, and generally should refer
the represented person to his or her counsel for further discussion of
these issues, as well as make clear that the attorney for the
government will not negotiate any agreement with respect to the
disposition of criminal charges, civil claims or potential charges or
claims or immunity without the presence or consent of counsel.
9-13.231 Overt Communications With Represented Persons--Presence of
Witness
An attorney for the government should not meet with a represented
person without at least one witness present. To the extent feasible, a
contemporaneous written memorandum should be made of all communications
with the represented person.
9-13.232 Overt Communications With Represented Persons--Restrictions
When an attorney for the government communicates, or causes a law
enforcement agent or other agent to communicate, with a represented
person without the consent of counsel, the restrictions set forth in 28
CFR Secs. 77.8 and 77.9 must be observed.
9-13.233 Overt Communications-- Assurances Not To Contact Client
During the investigative stage, and absent compelling law
enforcement reasons, an attorney for the government should not
deliberately initiate an overt communication with a represented person
outside the presence of counsel if the attorney for the government has
provided explicit assurances to counsel for the represented person that
no such communication will be attempted and no intervening change in
circumstances justifying such communications has arisen.
9-13.240 Overt Communications With Represented Targets
Except as provided in section 9-13.241 or as otherwise authorized
by law, an attorney for the government should not overtly communicate,
or cause another to communicate overtly, with a represented person who
the attorney for the government knows is a target of a federal criminal
or civil enforcement investigation and who the attorney for the
government knows is represented by an attorney concerning the subject
matter of the representation without the consent of the lawyer
representing such person. A ``target'' is a person as to whom the
attorney for the government has substantial evidence linking that
person to the commission of a crime or to other wrongful conduct and as
to whom the attorney for the government anticipates seeking an
indictment or naming as a defendant in a civil law enforcement
proceeding. An officer or employee of an organization that is a target
is not to be considered a target automatically even if such officer's
or employee's conduct contributed to the commission of the crime or
wrongful conduct by the target organization; likewise, organizations
that employ, or employed, an officer or employee who is a target are
not necessarily targets themselves.
9-13.241 Overt Communications With Represented Targets--Permissible
Circumstances
An attorney for the government may communicate overtly, or cause
another to communicate overtly, with a represented person who is a
target of a criminal or civil law enforcement investigation concerning
the subject matter of the representation if one or more of the
following circumstances exist:
(a) Determination if Representation Exists. The communication is
to determine if the target is in fact represented by counsel
concerning the subject matter of the investigation or proceeding.
(b) Discovery or Judicial Administrative Process. The
communication is made pursuant to discovery procedures or judicial
or administrative process, including but not limited to the service
of a grand jury or trial subpoena, testimony before a grand jury,
service of a summons and complaint, notice of deposition, taking of
a deposition, administrative summons or subpoena or civil
investigative demand.
(c) Initiation of Communication by Represented Person. The
represented person initiates the communication directly with the
attorney for the government or through an intermediary and, prior to
the commencement of substantive discussions on the subject matter of
the representation and after being advised by the attorney for the
government of the represented person's right to speak through his or
her attorney and/or to have the attorney present for the
communication, manifests that his or her waiver of counsel for the
communication is voluntary, knowing and informed, and, if willing to
do so, signs a written statement to this effect.
(d) Waivers at the Time of Arrest. The communication is made at
the time of the arrest of the represented person, and he or she is
advised of his or her constitutional rights and voluntarily and
knowingly waives them.
(e) Investigation of Additional, Different or Ongoing Crimes or
Wrongful Conduct. The communication is made in the course of an
investigation of additional, different or ongoing criminal or
wrongful conduct that is separate from or committed after the
criminal or wrongful activity as to which the person is a target.
(f) Threat to Safety or Life. The attorney for the government
believes that there may be a threat to the safety or life of any
person; the purpose of the communication is to obtain or provide
information to protect against the risk of harm; and the attorney
for the government believes that the communication is reasonably
necessary to protect against such risk.
(g) Effective Performance of Law Enforcement Functions. The
Attorney General, the Deputy Attorney General, the Associate
Attorney General, an Assistant Attorney General or a United States
Attorney: (i) Determines that exceptional circumstances exist such
that, after giving due regard to the importance as reflected in 28
CFR part 77 and this section of avoiding any undue interference with
the attorney-client relationship, the direct communication with a
represented party is necessary for effective law enforcement; and
(ii) authorizes the communication. Communications with represented
parties pursuant to this exception shall be limited in scope
consistent with the exceptional circumstances of the case and the
need for effective law enforcement.
9-13.242 Overt Communications With Represented Targets Organizations
and Employees
Overt communication with current high-level employees of
represented organizations should be made in accordance with the
procedures and considerations set forth in section 9-13.241 above, in
the following circumstances:
(a) The current high-level employee is known by the government
to be participating as a decision maker in the determination of the
organization's legal position in the proceeding or investigation of
the subject matter of the communication; and
(b) the organization is a target.
9-13.250 Communications During Investigative Stage Office Approval
Procedure
Before communicating, or causing another to communicate, with a
target the attorney for the government knows is represented by counsel
regarding the subject matter of the communication, the attorney for the
government should write a memorandum describing the facts of the case
and the nature of the intended communication. The memorandum should be
sent to and approved by the appropriate supervisor before the
communication occurs. In United States Attorney's Offices, the
memorandum should be reviewed and approved by the United States
Attorney. If the circumstances of the communication are such that prior
approval is not feasible, the attorney for the government should write
a memorandum as soon after the communication as practicable and provide
a copy of the memorandum to the appropriate supervisor. This memo
should also set forth why it was not feasible to obtain prior approval.
The provisions of this section do not apply if the communication with
the represented target is made at the time of arrest pursuant to
section 9-13.241(d).
9-13.260 Enforcement of the Policies
Appropriate administrative action may be initiated by Department
officials against prosecutors who violate the policies regarding
communication with represented persons.
* * * * *
The following new section is added to title 4, chapter 8.
4-8.1300 Communications With Represented Persons
Communications with represented persons in civil law enforcement
investigations and proceedings are governed generally by the rules set
forth in 28 CFR part 77 and by USAM 9-13.200 et seq.
* * * * *
V. Certifications
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant economic impact on a
substantial number of small entities. This rule was not reviewed by the
Office of Management and Budget pursuant to Executive Order No. 12866.
List of Subjects in 28 CFR Part 77
Government employees, Investigations, Law enforcement, Lawyers.
Accordingly, chapter I of title 28 of the Code of Federal
Regulations is proposed to be amended by adding a new part 77 to read
as follows:
PART 77--COMMUNICATIONS WITH REPRESENTED PERSONS
Sec.
77.1 Purpose and authority.
77.2 Definitions.
77.3 Represented party; represented person.
77.4 Constitutional and other limitations.
77.5 General rule for civil and criminal enforcement; represented
parties.
77.6 Exceptions; represented parties.
77.7 Represented persons; investigations.
77.8 Represented persons and represented parties; plea
negotiations.
77.9 Represented persons and represented parties; respect for
attorney-client relationships.
77.10 Organizations and employees.
77.11 Enforcement of rules.
77.12 Relationship to state and local regulation.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515(a), 516, 519,
533, 547.
Sec. 77.1. Purpose and authority.
(a) The Department of Justice is committed to ensuring that its
attorneys perform their duties in accordance with the highest ethical
standards. The purpose of this part is to provide a comprehensive,
clear, and uniform set of rules governing the circumstances under which
Department of Justice attorneys may communicate or cause others to
communicate with persons known to be represented by counsel in the
course of law enforcement investigations and proceedings. This part
ensures the Department's ability to enforce federal law effectively and
ethically, consistent with the principles underlying Rule 4.2 of the
American Bar Association Model Rules of Professional Conduct, while
eliminating the uncertainty and confusion arising from the variety of
interpretations given to that rule and analogous rules by state and
federal courts and by bar association organizations and committees.
(Copies of the ABA Model Rule are available through Order Fullfillment
Office, American Bar Association, 750 North Lake Shore Drive, Chicago,
IL 60611.
(b) This part is issued under the authority of the Attorney General
to prescribe regulations for the government of the Department of
Justice, the conduct of its employees, and the performance of its
business, pursuant to 5 U.S.C. 301; to direct officers of the
Department of Justice to secure evidence and conduct litigation,
pursuant to 28 U.S.C. 516; to direct officers of the Department to
conduct grand jury proceedings and other civil and criminal legal
proceedings, pursuant to 28 U.S.C. 515(a); to supervise litigation and
to direct Department officers in the discharge of their duties,
pursuant to 28 U.S.C. 519; and otherwise to direct Department officers
to detect and prosecute crimes, to prosecute offenses against the
United States, to prosecute civil actions, suits, and proceedings in
which the United States is concerned, and to perform such other
functions in an appropriate and ethical manner as may be provided by
law, pursuant to 28 U.S.C. 509, 510, 533, and 547.
Sec. 77.2 Definitions.
As used in this part, the following terms shall have the following
meanings, unless the context indicates otherwise:
(a) Attorney for the government means the Attorney General; the
Deputy Attorney General; the Associate Attorney General; the Solicitor
General; the Assistant Attorneys General for, and any attorney employed
in, the Antitrust Division, Civil Division, Civil Rights Division,
Criminal Division, Environment and Natural Resources Division, or Tax
Division; any United States Attorney; any Assistant United States
Attorney; any Special Assistant to the Attorney General or Special
Attorney duly appointed pursuant to 28 U.S.C. 515; any Special
Assistant United States Attorney duly appointed pursuant to 28 U.S.C.
543 who is authorized to conduct criminal or civil law enforcement
investigations or proceedings on behalf of the United States; or any
other attorney employed by the Department of Justice who is authorized
to conduct criminal or civil law enforcement proceedings on behalf of
the United States. The term attorney for the government does not
include any attorney employed by the Department of Justice as an
investigator or other law enforcement agent who is not authorized to
represent the United States in criminal or civil law enforcement
litigation or to supervise such proceedings.
(b) Person means any individual or organization.
(c) Organization means any corporation, partnership, association,
joint-stock company, union, trust, pension fund, unincorporated
association, state or local government or political subdivision
thereof, or non-profit organization.
(d) Employee means any employee, officer, director, partner,
member, or trustee.
(e) Cooperating witness or individual means any person, other than
a law enforcement agent, who is acting to assist the government in an
undercover or confidential capacity.
(f) Undercover investigation means any investigation undertaken in
good faith to fulfill law enforcement objectives, in which a person
communicates with a federal, state or local law enforcement agent or a
cooperating witness or individual whose identity as an official of the
government or a person acting at the behest thereof is concealed or is
intended to be concealed.
(g)(1) Civil law enforcement proceeding means a civil action or
proceeding before any court or other tribunal brought by the Department
of Justice under the police or regulatory powers of the United States
to enforce federal laws, including, but not limited to, civil actions
or proceedings brought to enforce the laws relating to:
(i) Antitrust;
(ii) Banking and financial institution regulation;
(iii) Bribery, kickbacks, and corruption;
(iv) Civil rights;
(v) Consumer protection;
(vi) Environment and natural resource protection;
(vii) False claims against the United States;
(viii) Food, drugs, and cosmetics regulation;
(ix) Forfeiture of property;
(x) Fraud;
(xi) Internal revenue;
(xii) Occupational safety and health;
(xiii) Racketeering; or
(xiv) Money-laundering.
(2) The term civil law enforcement proceeding shall not include
proceedings related to the enforcement of an administrative subpoena or
summons or a civil investigative demand. An action or proceeding shall
be considered ``brought by the United States'' only if it involves a
claim asserted by the Department of Justice on behalf of the United
States, whether the claim is asserted by complaint, counterclaim,
cross-claim, or otherwise.
(h) Civil law enforcement investigation means an investigation of
possible civil violations of, or claims under, federal law that may
form the basis for a civil law enforcement proceeding.
Sec. 77.3 Represented party; represented person.
(a) A person shall be considered a ``represented party'' within the
meaning of this part only if all three of the following circumstances
exist:
(1) The person has retained counsel or accepted counsel by
appointment or otherwise;
(2) The representation is ongoing and concerns the subject matter
in question;
(3) The person has been arrested or charged in a federal criminal
case or is a defendant in a civil law enforcement proceeding concerning
the subject matter of the representation.
(b) A person shall be considered a ``represented person'' within
the meaning of this part if circumstances set forth in paragraphs a (1)
and (2) of this section exist, but the circumstance set forth in
paragraph (a)(3) of this section does not exist.
Sec. 77.4 Constitutional and other limitations.
Notwithstanding any other provision of this part, any communication
that is prohibited by the Sixth Amendment right to counsel, by any
other provision of the United States Constitution, by any federal
statute, by the Federal Rules of Criminal Procedure (18 U.S.C. App.) or
by the Federal Rules of Civil Procedure (28 U.S.C. App.) shall be
likewise prohibited under this part.
Sec. 77.5 General rule for civil and criminal enforcement; represented
parties.
Except as provided in this part or as otherwise authorized by law,
an attorney for the government may not communicate, or cause another to
communicate, with a represented party who the attorney for the
government knows is represented by an attorney concerning the subject
matter of the representation without the consent of the lawyer
representing such party.
Sec. 77.6 Exceptions; represented parties.
An attorney for the government may communicate, or cause another to
communicate, with a represented party without the consent of the lawyer
representing such party concerning the subject matter of the
representation if one or more of the following circumstances exist:
(a) Determination if representation exists. The communication is to
determine if the person is in fact represented by counsel concerning
the subject matter of the investigation or proceeding.
(b) Discovery or judicial or administrative process. The
communication is made pursuant to discovery procedures or judicial or
administrative process, including, but not limited to, the service of a
grand jury or trial subpoena, testimony before a grand jury, service of
a summons and complaint, notice of deposition, taking of a deposition,
administrative summons or subpoena or civil investigative demand.
(c) Initiation of communication by represented party. The
represented party initiates the communication directly with the
attorney for the government or through an intermediary and:
(1) Prior to the commencement of substantive discussions on the
subject matter of the representation and after being advised by the
attorney for the government of the client's right to speak through his
or her attorney and/or to have the client's attorney present for the
communication, manifests that his or her waiver of counsel for the
communication is voluntary, knowing and informed and, if willing to do,
signs a written statement to this effect; and
(2) A federal district judge, magistrate judge or other court of
competent jurisdiction has concluded that the represented party has:
(i) Waived the presence of counsel and that such waiver is
voluntary, knowing, and informed; or
(ii) Obtained substitute counsel or has received substitute counsel
by court appointment, and substitute counsel has consented to the
communication.
(d) Waivers at the time of arrest. The communication is made at the
time of the arrest of the represented party and he or she is advised of
his or her constitutional rights and voluntarily and knowingly waives
them.
(e) Investigation of additional, different or ongoing crimes or
civil violations. The communication is made in the course of an
investigation, whether undercover or overt, of additional, different or
ongoing criminal activity or other unlawful conduct. Such additional,
different or ongoing criminal activity or other unlawful conduct may
include, but is not limited to, the following:
(1) Additional, different or ongoing criminal activity or other
unlawful conduct that is separate from or committed after the criminal
activity for which the represented party has been arrested or charged
or for which the represented party is a defendant in a civil law
enforcement proceeding; or
(2) Criminal activity that is intended to impede or evade the
administration of justice including, but not limited to, the
administration of justice in the proceeding in which the represented
party is a defendant, such as obstruction of justice, subornation of
perjury, jury tampering, murder, assault, or intimidation of witnesses,
bail jumping, or unlawful flight to avoid prosecution.
(f) Threat to safety or life. The attorney for the government in
good faith believes that there may be a threat to the safety or life of
any person; the purpose of the communication is to obtain or provide
information to protect against the risk of injury or death; and the
attorney for the government in good faith believes that the
communication is necessary to protect against such risk.
Sec. 77.7 Represented persons; investigations.
Except as otherwise provided in this part, an attorney for the
government may communicate, or cause another to communicate, with a
represented person in the process of conducting an investigation,
including, but not limited to, an undercover investigation.
Sec. 77.8 Represented persons and represented parties; plea
negotiations.
An attorney for the government may not initiate or engage in
negotiations of a plea agreement, settlement, statutory or non-
statutory immunity agreement, or other disposition of actual or
potential criminal charges or civil enforcement claims, or sentences or
penalties with a represented person or represented party who the
attorney for the government knows is represented by an attorney without
the consent of the attorney representing such person or party;
provided, however, that this restriction will not apply if the
communication satisfies Sec. 77.6(c).
Sec. 77.9 Represented persons and represented parties; respect for
attorney-client relationships.
When an attorney for the government communicates, or causes a law
enforcement agent or cooperating witness to communicate, with a
represented person or represented party pursuant to any provision of
these regulations without the consent of counsel, the following
restrictions must be observed:
(a) Deference to attorney-client relationship. (1) An attorney for
the government, or anyone acting at his or her direction may not, when
communicating with a represented person or represented party:
(i) Inquire about information regarding lawful defense strategy or
legal arguments of counsel;
(ii) Disparage counsel for a represented person or represented
party or otherwise seek to induce the person to forgo representation or
to disregard the advice of the person's attorney; or
(iii) Otherwise improperly seek to disrupt the relationship between
the represented person or represented party and counsel.
(2) Notwithstanding paragraph (a)(1) of this section, if the
Attorney General, the Deputy Attorney General, the Associate Attorney
General, an Assistant Attorney General or a United States Attorney
finds:
A substantial likelihood that there exists a significant conflict
of interest between a represented person or party and his or her
attorney; and that it is not feasible to obtain a judicial order
challenging the representation, then an attorney for the government
with prior written authorization from an official identified above may
apprise the person of the nature of the perceived conflict of interest,
unless the exigencies of the situation permit only prior oral
authorization, in which case such oral authorization shall be
memorialized in writing as soon thereafter as possible.
(b) Attorney-client meetings. An attorney for the government may
not direct or cause an undercover law enforcement agent or cooperating
witness to attend or participate in lawful attorney-client meetings or
communications, except when the agent or witness is requested to do so
by the represented person or party, defense counsel, or another person
affiliated or associated with the defense, and when reasonably
necessary to protect the safety of the agent or witness or the
confidentiality of an undercover operation. If the agent or witness
attends or participates in such meetings, any information regarding
lawful defense strategy or trial preparation imparted to the agent or
witness shall not be communicated to attorneys for the government or to
law enforcement agents who are directly participating in the ongoing
investigation or in the prosecution of pending criminal charges, or
used in any other way to the substantial detriment of the client.
Sec. 77.10 Organizations and employees.
This section applies when the communication involves a former or
current employee of an organization that qualifies as a represented
party or represented person, and the subject matter of the
communication relates to the business or affairs of the organization.
(a) Communications with current employees; organizational
representation. A communication with a current employee of an
organization that qualifies as a represented party or represented
person shall be considered to be a communication with the organization
for purposes of this part only if the employee is a controlling
individual. A ``controlling individual'' is a current high level
employee who is known by the government to be participating as a
decision maker in the determination of the organization's legal
position in the proceeding or investigation of the subject matter.
(b) Communications with former employees; organizational
representation. A communication with a former employee of an
organization that is represented by counsel shall not be considered to
be a communication with the organization for purposes of this part.
(c) Communications with former or current employees; individual
representation. A communication with a former or current employee of an
organization who is individually represented by counsel may occur only
to the extent otherwise permitted by this part. However, a claim by an
attorney that he or she represents all or a large number of individual
current and/or former employees of an organization does not suffice to
establish that those employees are represented persons or represented
parties under this part. In such circumstances, prior to engaging in
communications that would be prohibited under this part as a result of
the individual representation, the attorney for the government shall
communicate with the individual current or former employee to determine
if in fact that employee is represented by counsel concerning the
subject matter of the investigation or proceeding.
(d) Communications with separately represented controlling
individuals. When this part would preclude discussions with a
controlling individual as defined in Sec. 77.10(a) and the controlling
individual has retained separate counsel on the relevant subject
matter, an attorney for the government may communicate with such
individual in the following circumstances:
(1) If the controlling individual's separate counsel consents;
(2) If the communication falls within one of the exceptions set
forth in Secs. 77.6 or 77.9; or
(3) In the case in which the individual does not qualify as a
represented party, if the individual initiates the communication and
states that he or she is communicating exclusively in his or her
personal capacity and not on behalf of the represented organizational
party, and manifests that his or her waiver of counsel for the
communication is voluntary, knowing and informed, and, if willing to do
so, signs a written statement to this effect.
(e) Communications with unrepresented controlling individuals.
Notwithstanding any other provision of this part, an attorney for the
government may communicate with a controlling individual who is not
individually represented as to the subject matter of the communication
when the controlling individual initiates the communication and states
that he or she is communicating exclusively in his or her personal
capacity and not on behalf of the represented organizational party, and
manifests that his or her waiver of counsel for the communication is
voluntary, knowing, and informed, and, if willing to do so, signs a
written statement to this effect.
(f) Multiple representation. Nothing in this section is intended or
shall be construed to affect the requirements of Rule 44(c) of the
Federal Rules of Criminal Procedure, or to permit the multiple
representation of an organization and any of its employees, or the
multiple representation of more than one such employee, if such
representation is prohibited by any applicable law or rule of attorney
ethics.
Sec. 77.11 Enforcement of this part.
(a) Exclusive enforcement by Attorney General. The Attorney General
shall have exclusive authority over this part and any violations of it,
except as provided in Sec. 77.12. Allegations of violations of this
part shall be investigated exclusively by the Office of Professional
Responsibility of the Department of Justice, and shall be addressed
when appropriate as matters of attorney discipline by the Department.
The findings of the Attorney General or her designee as to an
attorney's compliance or non-compliance with this part shall be final
and conclusive except insofar as the attorney for the government is
afforded a right of review by other provisions of law.
(b) No private remedies. This part is not intended to and does not
create substantive rights on behalf of criminal or civil defendants,
targets or subjects of investigations, witnesses, counsel for
represented parties or represented persons, or any other person other
than an attorney for the government, and shall not be a basis for
dismissing criminal or civil charges or proceedings against represented
parties or for excluding relevant evidence in any proceeding in any
court of the United States.
Sec. 77.12 Relationship to state and local regulation.
Communications with represented parties and represented persons
pursuant to this part are intended to constitute communications that
are ``authorized by law'' within the meaning of Rule 4.2 of the
American Bar Association Model Rules of Professional Conduct, DR 7-
104(A)(1) of the ABA Code of Professional Responsibility, and analogous
state and local federal court rules. (Copies of the ABA Model Rules and
Code are available through Order Fulfillment Office, American Bar
Association, 750 North Lake Shore Drive, Chicago, IL 60611.) In
addition, this part is intended to preempt the application of state and
local laws or rules to the extent that they relate to contacts by
attorneys for the government, and those acting at their direction or
under their supervision, with represented parties or represented
persons in criminal and civil investigations and litigation. This part
is designed to govern the conduct of attorneys for the government in
the discharge of their duties to the extent that state and local laws
or rules are inconsistent with this part. When the Attorney General
finds a willful violation of any of the rules in this part, however,
sanctions for the violation of this part may be applied, if warranted
by the appropriate state disciplinary authority.
Dated: February 22, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-4510 Filed 3-2-94; 8:45 am]
BILLING CODE 4410-01-M