[Senate Hearing 106-255]
[From the U.S. Government Publishing Office]
S. Hrg. 106-255
THE EFFECT OF STATE ETHICS RULES ON FEDERAL LAW ENFORCEMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
THE EFFECT OF STATE ETHICS RULES ON FEDERAL LAW ENFORCEMENT, FOCUSING
ON SECTION 530B OF TITLE 28 OF THE UNITED STATES CODE, WHICH REQUIRES
DEPARTMENT ATTORNEYS TO COMPLY WITH STATE LAWS AND RULES, AND LOCAL
FEDERAL COURT RULES, GOVERNING ATTORNEYS IN EACH STATE WHERE SUCH
ATTORNEY ENGAGES IN THAT ATTORNEY'S DUTIES, THE CITIZENS PROTECTION
ACT, AND POTENTIAL ABUSE OF POWER
__________
MARCH 24, 1999
__________
Serial No. J-106-9
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
60-098 CC WASHINGTON : 1999
------------------------------------------------------------------------------
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
______
Subcommittee on Criminal Justice Oversight
STROM THURMOND, South Carolina, Chairman
MIKE DeWINE, Ohio CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama PATRICK J. LEAHY, Vermont
Garry Malphrus, Chief Counsel
Glen Shor, Legislative Assistant
(ii)
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Thurmond, Hon. Strom, U.S. Senator from the State of South
Carolina....................................................... 1
Schumer, Hon. Charles E., U.S. Senator from the State of New York 3
DeWine, Hon. Mike, U.S. Senator from the State of Ohio........... 5
Biden, Joseph R., Jr., U.S. Senator from the State of Delaware... 33
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........75, 84
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont... 76
CHRONOLOGICAL LIST OF WITNESSES
Statement of Eric H. Holder, Jr., Deputy Attorney General, U.S.
Department of Justice, Washington, DC; accompanied by Zachary
W. Carter, U.S. attorney, Eastern District of New York,
Brooklyn, NY, and P. Michael Patterson, U.S. attorney, Northern
District of Florida, Pensacola, FL............................. 20
Panel consisting of John Smietanka, former Principal Associate
Deputy Attorney General, U.S. Department of Justice, Grand
Rapids, MI; John R. Justice, president, National District
Attorneys Association, Chester, SC; Richard L. Delonis,
president, National Association of Assistant United States
Attorneys, Detroit, MI; G. Andrew McKay, chair, National
Litigation Committee, American Corporate Counsel Association,
Washington, DC; and Geoffrey C. Hazard, Jr., trustee professor
of law, University of Pennsylvania, Philadelphia, PA........... 47
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Carter, Zachary: Testimony....................................... 26
Delonis, Richard L.:
Testimony.................................................... 57
Prepared statement........................................... 59
Hazard, Geoffrey C., Jr.: Testimony.............................. 72
Holder, Eric H., Jr.:
Testimony.................................................... 20
Prepared statement........................................... 39
Justice, John R.:
Testimony.................................................... 53
Prepared statement........................................... 55
McKay, G. Andrew:
Testimony.................................................... 69
Prepared statement........................................... 71
Patterson, P. Michael: Testimony................................. 23
Smietanka, John:
Testimony.................................................... 47
Prepared statement........................................... 48
Thurmond, Hon. Strom:
The McDade amendment......................................... 6
A bill S. 250, to establish ethical standards for Federal
prosecutors, and for other purposes........................ 7
Articles:
The Washington Post, ``Repealing a Bad Law,'' dated Jan.
25, 1999............................................... 80
The Washington Post, ``Quashing the Prosecutors,'' dated
Aug. 13, 1999.......................................... 81
The Washington Post, ``Hampering Law Enforcement,'' dated
Oct. 18, 1999.......................................... 81
Letters to:
Senator Thurmond from The Supreme Court of South
Carolina, dated Mar. 22, 1999.......................... 82
The Subcommittee on Criminal Justice from David Beatty,
director of public policy, National Victim Center,
dated Sept. 28, 1998................................... 83
The chairman and ranking member of the Committee on
Appropriations and the chairman and ranking member of the
Subcommittee on Commerce, Justice, State and Related
Agencies from the Senate Committee on the Judiciary, dated
July 21, 1998.............................................. 90
The chairman and ranking member of the Committee on
Appropriations from the Senate Committee on the Judiciary,
dated Mar. 24, 1999........................................ 91
APPENDIX
Questions and Answers
Responses to Senator Leahy questions from:
Geoffrey C. Hazard, Jr....................................... 93
Eric Holder.................................................. 96
Additional Submissions for the Record
Letters submitted by the American Corporate Counsel Association
on Mar. 31, 1999:
To Senator Thurmond from Philip S. Anderson, the American Bar
Association, dated Feb. 22, 1999........................... 100
To Senator Peter G. Fitzgerald from R.R. Atterbury,
Caterpillar, Inc., dated Mar. 9, 1999...................... 101
To Senator Thurmond from R. Bruce Josten, Chamber of Commerce
of the United States of America, dated Mar. 30, 1999....... 101
To Senator Carl M. Levin from Thomas A. Gottschalk, General
Motors Corporation, dated Feb. 5, 1999..................... 102
To Senator Ashcroft from Bill Ide, Monsanto Company, dated
Feb. 11, 1999.............................................. 102
To Representative Dennis Hastert from Michael E. Baroody,
dated Mar. 16, 1999........................................ 103
To Senator Hatch from Michael J. Oths, president, National
Organization of Bar Counsel, Inc., dated Mar. 10, 1999..... 103
To Senator Ted Stevens from Arnold I. Burns, Proskauer Rose
LLP, dated Sept. 28, 1998.................................. 106
To the Illinois Congresspersons from Janet Langford Kelly,
Sara Lee Corporation, dated Mar. 23, 1999.................. 108
THE EFFECT OF STATE ETHICS RULES ON FEDERAL LAW ENFORCEMENT
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WEDNESDAY, MARCH 24, 1999
U.S. Senate,
Subcommittee on Criminal Justice Oversight,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:02 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Strom
Thurmond (chairman of the subcommittee) presiding.
Also present: Senators DeWine, Sessions, Schumer, and
Biden.
OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Thurmond. The subcommittee will come to order. I am
pleased today to hold the first solo hearing of the
Subcommittee on Criminal Justice Oversight. This new
subcommittee demonstrates the commitment of the Judiciary
Committee to fighting crime in America. Of course, this
commitment is not new. Crime was always a major interest of
mine when I served as chairman and later as ranking member of
the full Judiciary Committee, and it has been a primary focus
of current Chairman Hatch.
Oversight is a key function of this committee, and I look
forward to taking a hard look at our Federal law enforcement,
prosecution and incarceration efforts. I am pleased to have
Senator Schumer as the ranking member and look forward to
working with him.
Our hearing today is on an issue that has the potential to
greatly interfere in Federal law enforcement. The McDade
amendment, which was passed late in the last Congress as part
of the omnibus appropriations bill, subjects Federal Government
attorneys to State laws and rules and local Federal court rules
in any State where the attorney engages in his duties. It
becomes effective in less than 1 month if it is not repealed or
modified.
Requiring Federal prosecutors to follow State ethics rules
is generally not a problem. However, in the grand scheme of
attorney ethics, the Department of Justice has followed a
small, critical exception in order to prevent certain rules
from interfering in Federal law enforcement.
The problem arises when some States make certain
prosecution practices and investigative techniques unethical
that are otherwise clearly legal and constitutional. This can
result in Federal prosecutors being disciplined under State
ethics rules for conduct that is otherwise valid, even routine,
and has been approved by their superiors. It can also mean that
the evidence that is critical to a conviction is excluded from
evidence, possibly resulting in a criminal not being convicted
based on a legal technicality.
Probably the most crucial example is that, based on State
ethics rules, some States prohibit undercover investigations or
sting operations. Of course, undercover operations are critical
to efforts to discover the facts about an illegal enterprise.
This is especially true in large, complex investigations such
as organized crime or drug conspiracies. Prohibiting them could
cripple law enforcement.
Also, some States greatly restrict the ability of
authorities to speak with low-level company employees who
voluntarily wish to expose corporate wrongdoing. This could
bring to a halt criminal or civil investigations of serious
corporate misconduct, such as telemarketing fraud. It could
also prevent a low-level member of a drug cartel from
voluntarily cooperating with authorities.
Moreover, some States attempt to interfere in traditional,
established Federal grand jury practice, imposing their
limitations on a Federal criminal grand jury. They may give
attorneys special protections from grand jury subpoenas, or
they may attempt to dictate what evidence must be presented to
the grand jury.
Because of the vague language of McDade, the problem
extends beyond ethics rules. Any State law governing attorneys,
whether substantive or procedural, arguably could apply. For
example, some States prohibit the use of wiretaps by
prosecutors, and defense counsel will argue that these laws now
trump established Federal law in this regard. Indeed, the
possibilities of McDade are limited only by the imaginations of
defense counsel in making their arguments to the court. At the
very least, this will divert scarce resources from the pursuit
of justice to unnecessary litigation.
Moreover, this new law will encourage further variance in
State ethics rules than exists today. With State conduct rules
clearly applying to Federal prosecutors, those who advocate for
the interests of criminal defendants will be encouraged in
their efforts to get States to make their rules even tougher
for law enforcement.
The problem is especially acute because Federal criminal
investigations have become increasingly national in scope,
routinely crossing State lines. Prosecutors often supervise
investigations or grand juries in many States at the same time.
For Federal prosecutors, the need to comply with any applicable
State ethics rule is more important than the success of a
particular case. An ethics violation goes against a prosecutor
personally and can impact his or her career and livelihood.
The McDade amendment will limit multi-State prosecutions to
the rules of the most restrictive State involved. Indeed,
because of the need for Federal authorities to maintain
clarity, we could have ethics rules essentially dictating how
all Federal investigations in the country are conducted.
Let me state that I do not dispute that the drafters and
supporters of the McDade legislation had the best of
intentions. Federal prosecutors have great power and they
should be held to high ethical standards. Prosecutorial
misconduct should not be and cannot be tolerated.
The Justice Department currently has an extensive process
for uncovering and punishing unethical prosecutors. The
disciplinary system should be as efficient and effective as
possible, and we should always evaluate whether there is room
for improvement. However, the problem is not that there are not
enough rules and regulations for Federal prosecutors to follow.
Some argue that the public will be safer if this law
becomes effective. I cannot agree. It is my fear that this law
will make law-abiding citizens less safe and secure, less
protected from the criminal element. Indeed, my concern is that
the real winners from this law will be the criminal element--
drug cartels, violent gangs, serial armed bank robbers, and
child pornographers.
In my view, it is critical that the Congress either repeal
the McDade amendment or replace it with compromise legislation
such as S. 250, the Federal Prosecutor Ethics Act, proposed by
Senator Hatch. I look forward to the testimony of all of our
very able witnesses today, especially the distinguished Deputy
Attorney General and the Solicitor for the Sixth Circuit of
South Carolina, John Justice. I hope we will learn much today
about the effect of State ethics rules on Federal law
enforcement.
Senator Schumer, we would be glad if you would care to make
an opening statement.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, sir. Well, thank you very much,
Mr. Chairman, and I apologize for being late and I want to
thank you for holding this hearing. I appreciate the
opportunity to serve alongside you as ranking member of this
subcommittee. It is an opportunity I certainly did not expect
to have in my first term in the Senate.
I also want to welcome today's witnesses, but particularly
Zack Carter, the U.S. Attorney from the Eastern District, my
home. He is a good friend and does a great job.
Mr. Chairman, on the 21st of this month, the so-called
McDade language is scheduled to take effect. The purpose of
this provision was to protect citizens from over-zealous
prosecutors. However, based on the concerns expressed by
Federal prosecutors whom I know and I trust, who I know are
careful and not over-zealous prosecutors, like Mr. Carter, I
fear that it may to some extent protect criminals from valid
law enforcement techniques.
State ethics rules governing attorney contacts with
represented persons typically offer prosecutors little in the
way of a clear safe harbor for supervising undercover
preindictment sting operations, very important particularly in
our Eastern District, because it has our airports, for drug
operations, and speaking to low-level corporate whistleblowers.
Indeed, some State courts have interpreted these rules in ways
that could chill what I think all of us would deem legitimate
prosecutorial techniques, such as sending in investigators to
infiltrate organized crime entities.
Rather than spelling out a way to alleviate this potential
chilling effect without undermining protections that Congress
intended against prosecutorial over-reaching, the McDade simply
enshrines the current uncertainty into Federal law. It would be
a mistake to assume that the only price we would pay for
discouraging prosecutors from initiating undercover
investigations of criminal entities with counsel on retainer is
a diminished ability to bring down drug lords or mob bosses. We
would also lose the benefit of having prosecutors advise agents
during the course of investigations of the legal and
constitutional bounds of such investigations.
So the McDade language--I realize it is well-intentioned--
also injects other uncertainties into the process of
determining the propriety of prosecutorial conduct. Here is one
example, and it is only one. There is already some confusion
about whether Federal prosecutors must comply with the ethical
rules of the district courts in which they are litigating or
the rules of the States in which they are licensed, where those
rules happen to be in conflict.
The McDade would appear to supply a new element of
confusion by directing that Federal prosecutors also comply
with the ethical rules of each State in which they, ``engage in
attorney's duties.'' Does this mean that prosecutors must now
abide by the ethical rules of every State in which they conduct
their positions or in which agents act according to their
instructions? And what happens when those rules conflict with
other States' ethical rules governing prosecutors? Where
Federal prosecutors needed clear answers, the McDade language
appears to have supplied them only with more questions.
In addition to commenting on the substance of the McDade
language and its implications for Federal law enforcement, I
also want to comment briefly on how we got to this point, and I
beg the Chair's indulgence on this.
In part, the problem was one of, ``insufficient process.''
The McDade language was not marked up by either the House or
Senate Judiciary Committees in the previous Congress; I know
because I was a member of the House Judiciary Committee then.
It was not included in the Senate version of the fiscal year
1999 Commerce, State, Justice appropriations bill.
The language was voted on by this body not separately, but
only as part of the omnibus appropriations bill passed at the
end of last year. Surely, an issue of this magnitude deserved
more sustained and thoughtful consideration than it was given.
I also believe the adoption of this language last year had
something to do with the fact that 1998 presented us with a
high-profile example of overreaching on the part of one
prosecutor. In this sense, Federal prosecutors as a whole were
punished for the sins of Ken Starr. And I want to make it clear
today that the idea that what Ken Starr did is standard fare
for Federal prosecutors, an idea advanced by Mr. Starr himself
on numerous occasions, including when he testified before the
House Judiciary Committee, is simply false.
Federal prosecutors do not typically discuss immunity
agreements with individuals in the absence of their counsel.
Federal prosecutors do not typically haul targets of
investigations before grand juries. Federal prosecutors
typically do disclose blatant conflicts of interest that might
at least appear to compromise their independence in pursuing
certain matters. In short, the vast majority of Federal
prosecutors do not do what Ken Starr did.
And so I look forward to working with the other members of
this subcommittee, and thank the Chair for holding this timely
hearing toward developing a reasonable solution to the issues
discussed today, a solution targeted specifically at the true,
``bad apples,'' among the ranks of Federal prosecutors and
targeted specifically at the problems the Department of Justice
is, in fact, experiencing with the current ethics regime.
Let me be clear. I feel very strongly Federal prosecutors
should be held to the highest of ethical standards, and I am
sympathetic to the concerns of those who oppose vesting the
Justice Department with broad and exclusive authority to
regulate and sanction its attorneys. I would accordingly like
to see implementation of the McDade language delayed to give us
time to find the middle ground and do right by both law
enforcement and civil liberties. One way or the other, however,
we cannot afford to let this language remain on the books in
its current form.
Thank you, Mr. Chairman. I appreciate the time.
Senator Thurmond. Thank you, Senator Schumer.
Senator DeWine, do you have an opening statement?
STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Just very briefly, Mr. Chairman, I want to
say how honored I am to be serving on this subcommittee with
you as the subcommittee chairman. You have been a leader in
anticrime issues for so many years and I just look forward to
serving with you.
I want to congratulate you also for holding this hearing.
This is a hearing that is timely. This is a very important
issue. It is an issue that many U.S. attorneys have contacted
me about and I have talked to them about, so I look forward to
hearing the testimony.
Senator Thurmond. Thank you, Senator DeWine.
If any Senators wish to place statements in the record, I
ask unanimous consent that they appear at this point in the
record.
I also wish to submit for the record a copy of the McDade
amendment, as passed last year, and a copy of Senator Hatch's
bill, S. 250, from this Congress.
[The McDade amendment and S. 250 follow:]
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Senator Thurmond. We will now turn to the witnesses. I ask
that all witnesses keep their opening statements to 5 minutes,
and we will submit any written testimony for the record.
Our first witness is Deputy Attorney General Eric Holder,
Jr. He is a graduate of Columbia University Law School and
served as a prosecutor in the Justice Department Public
Integrity Section. Later, he served on the Superior Court of
the District of Columbia. In 1993, Mr. Holder became U.S.
Attorney for the District of Columbia. Four years later, he was
elevated to his current position of Deputy Attorney General of
the United States.
He is accompanied by two U.S. attorneys, Zachary Carter--
raise your hand, Mr. Carter--of the Eastern District of New
York, and Michael Patterson of the Northern District of
Florida.
I see Senator Biden has come in. Senator Biden, we are glad
to have you here.
Senator Biden. Thank you, Mr. Chairman. I don't have any
opening statement. I will reserve my statement and comments for
the question-and-answer period.
Senator Thurmond. It is my pleasure to recognize the Deputy
Attorney General at this time.
STATEMENT OF ERIC H. HOLDER, JR., DEPUTY ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, DC; ACCOMPANIED BY ZACHARY
W. CARTER, U.S. ATTORNEY, EASTERN DISTRICT OF NEW YORK,
BROOKLYN, NY, AND P. MICHAEL PATTERSON, U.S. ATTORNEY, NORTHERN
DISTRICT OF FLORIDA, PENSACOLA, FL
STATEMENT OF ERIC H. HOLDER, JR.
Mr. Holder. Mr. Chairman, I want to thank you and the
members of the subcommittee for inviting me and my colleagues
to testify before you today concerning the impact of 28 U.S.C.
530B, what we have come to call the McDade amendment, and the
effect that that will have on Federal law enforcement. I would
request that the full text of my prepared statement be made a
part of the record.
Senator Thurmond. Without objection, it is so ordered.
Mr. Holder. Thank you. Mr. Chairman, it seems to me that
this is not a Justice Department issue; it is a law enforcement
issue. I do not stand alone in believing that this statute will
have a chilling effect on our ability to both investigate and
prosecute crimes against the United States. There have been
many other groups who have expressed similar concerns about
this statute.
Before addressing the specifics of the problems associated
with the implementation of McDade, I would like to take a
moment to express my support for the many dedicated men and
women who sacrifice more lucrative careers in private practice
for the honor of serving the Nation through their work at the
Justice Department.
Because of the outstanding reputation the Department of
Justice has earned over the years, we are able to attract the
best and the brightest to the Department. We have been able to
attract, I believe, highly ethical professionals who represent
the United States and its citizens with great distinction
everyday in the courts throughout this country.
Having said that, I also want to assure members of this
subcommittee that the Department has a zero level of tolerance
for misconduct by its employees. Those who misuse their offices
or who abuse the public trust have been and will be swiftly and
appropriately punished. The Department of Justice enforces the
civil and criminal law of the United States without fear or
favor, and its attorneys are expected--our attorneys are
required to adhere to the highest standards of conduct in
carrying out their duties.
The Department is involved in thousands of civil and
criminal actions every year. In only a small percentage of
those cases are there even allegations of misconduct. In even
fewer cases are actual instances of misconduct found. In those
few instances, the Department, the courts, and, yes, even State
bars take action to punish the wrongdoing.
While those voting for the McDade amendment were well-
intended, I believe the process, as Senator Schumer indicated,
was flawed. It was added to an appropriations measure without
full hearings before the Judiciary Committee, without the
Department of Justice having had an opportunity to thoroughly
discuss its potential pitfalls with you. And we are very
pleased to finally have that opportunity now.
Let me be very clear about my position. I believe that if
this provision should take effect on April 19, it is my strong
view and considered professional judgment that it will have a
very serious and very negative effect on Federal law
enforcement activities across the country. And I would just
like to share with you some concrete examples in that regard.
First, with regard to undercover operations, they are
critical to many major investigations, including the
investigation of major drug trafficking rings, terrorist
groups, and traditional organized crime. The Committee on
Professional Ethics of the Florida State Bar Association,
however, has opined that under the Florida version of the
contacts rule, attorneys and agents working with the attorneys
may not communicate with anyone who claims to have a lawyer
with respect to a particular matter.
The Florida bar has minimized the obvious harm to law
enforcement that this rule would cause by observing that the
target would likely be unaware of the undercover operation and
so would not be represented in the matter even if the target
had counsel. But this completely ignores the realities of
modern Federal law enforcement.
Would the Florida bar really believe that John Gotti, for
instance, did not know that he was under investigation? Under
the Florida bar rule, Mr. Gotti's lawyer might have been able
to write to the U.S. attorney stating his knowledge of the
investigation, announce his representation of Mr. Gotti, and
thereby preclude the Government from wiring an undercover FBI
agent to try to elicit incriminating information from Mr.
Gotti.
Second, with regard to investigations after arrest,
investigation of criminal activity that continues after arrest
could also be seriously hampered. For example, in a recent case
investigated by a U.S. attorney's office, defendants in a
securities fraud case were released on bail following their
arrest. In the course of interviewing victims, prosecutors
learned that one elderly victim had been contacted by a
defendant seeking $250,000 based on the same fraud. Prosecutors
arranged for the victim to tape record ensuing conversations
with the defendant, producing evidence of ongoing fraud by the
defendant and by others. Prosecutors must be able to
investigate such ongoing conduct in order to ensure that
indicted defendants are not able to continue their illegal
conduct.
A similar and even more dangerous situation occurs when
prosecutors become aware that a defendant is trying to arrange
for the murder of a witness. Under the Department's regulation
and Federal case law, prosecutors can place a wire on a
cooperator with instructions to try to get the defendant to
talk about such plans. A rigorous no-contact rule would prevent
prosecutors from using this essential investigative technique,
with potentially disastrous consequences.
And this is not a hypothetical circumstance. In a recent
case, a U.S. attorney's office was told by an informant that an
indicted defendant was seeking to murder a witness against him
and a law enforcement officer involved in the investigation.
The office consulted with the State bar counsel about the issue
of an undercover contact of the defendant by the informant. The
State bar counsel said that the contact would violate the
State's ethics rules, although it was unlikely that the
prosecutor would be disciplined.
The problems presented by State bar contacts rules are by
no mean limited to criminal law enforcement. Attorneys
representing corporations often claim to represent all
employees of the company, and sometimes even former employees.
The U.S. attorney in San Francisco received a letter from
counsel for a corporation under criminal investigation who
asserted that California's contact rule prohibits contacts with
employees, ``even in situations where the corporation's and the
employee's interests may not be the same.'' Under the more
expansive State contact rule, Department attorneys might not
even be able to speak to employees such as whistleblowers who
want to speak to the Government and who have no interest in
being represented by corporate counsel.
Although I have focused on State rules on contacts with
represented persons, which pose the most serious challenge to
effective law enforcement, many other bar rules threaten to
interfere with legitimate investigations. For example, in
Oregon a State bar rule prohibiting deception has been
interpreted to prohibit government attorneys' participation in
undercover operations. A Federal prosecutor conducting an
investigation of a drug organization would thus be prohibited
from authorizing an undercover purchase of drugs. A prosecutor
could not supervise a sting operation intended to lure burglars
and thieves into selling their ill-gotten proceeds to an
undercover FBI agent posing as a fence. A prosecutor could not
authorize law enforcement agents to pose as children to fool
pedophiles using the Internet in order to sexually exploit
minors.
The response of the Oregon bar to criticism of its
interpretation of its rule is that law enforcement agents are
not bound by ethics rules and can continue to conduct
undercover operations without attorney involvement.
Mr. Chairman, I see my time has expired. If I could just
have another minute to just finish my remarks, I would
appreciate that.
Senator Thurmond. Oh, you say you want another minute? Go
ahead.
Mr. Holder. Thank you, Mr. Chairman.
Senator Thurmond. Your time is up, but we will give you
another minute.
Mr. Holder. Thank you very much.
The Oregon view, we believe, reflects a completely
unrealistic view of contemporary law enforcement, and is
terrible public policy to boot. Prosecutors conduct
investigations because they have to. In addition, prosecutors
should be involved in investigations. Prosecutors can help
ensure that investigations are conducted in accordance with the
Constitution, and are in a better position to decide what
additional investigation is necessary to prove a case in court
and to decide whether a case should be prosecuted or dropped.
Before concluding my remarks, I just want to thank Senator
Hatch and other members of this committee who have introduced
legislation to revise the McDade language in order to prevent
what I believe will be the inevitable damage it will have on
our ability to properly investigate and prosecute Federal
crimes.
I believe, as you indicated, Mr. Chairman, that this should
be a nonpartisan issue, and we stand ready to work with you and
all members of the committee on both sides of the aisle to find
an appropriate legislative solution. Working together over the
past 6 years, we have seen a very dramatic drop in crime. It is
our view that section 530B poses a serious threat to our future
progress.
We must not impede the legitimate work of our Federal
prosecutors, and I would urge this committee and Congress to,
at a minimum, extend the implementation of the McDade amendment
for 6 months in order to provide the subcommittee, the Congress
and the Department of Justice sufficient time to fashion an
appropriate bipartisan legislative remedy.
Thank you very much.
Senator Thurmond. Mr. Patterson, do either you or Mr.
Carter want to make a brief statement?
STATEMETN OF P. MICHAEL PATTERSON
Mr. Patterson. Yes, Mr. Chairman. I would like to thank the
subcommittee for the honor of appearing before you.
28 U.S.C. 530B subjects Federal prosecutors to State laws
and rules in each State where the prosecutor engages in his
duties. This law is fundamentally flawed because the underlying
concept fails to recognize the incompatibility of applying
portions of a complex system to a different and equally complex
system of criminal justice.
Each State's system of criminal justice has developed an
intricate structure of checks and balances between grants of
authority to State prosecutors and ethical and legal restraints
on the exercise of that authority. Though many of the State
systems bear significant similarities, virtually none are
identical and few, if any, are identical to the Federal system
of criminal justice.
Each State has developed a criminal justice structure in
which prosecutors and police are authorized to investigate and
prosecute violations of that State's criminal laws. Within each
State's system, prosecutors and law enforcement personnel are
restrained by legal and ethical rules. However, these rules
relate to and are intertwined with that State's grant of
authority to its prosecutors. Federal criminal practice is
governed by a different sovereign jurisdiction, and the needs
of Federal prosecutors and Federal law enforcement played no
part in the development of these State rules, nor was their
impact on Federal practice weighed or considered.
In Florida, for example, the chief prosecutor in each of
the State's 20 circuits is the State attorney. Under chapter 27
of the Florida statutes, the State attorneys are authorized to
issue subpoenas to compel the attendance of individuals and the
production of documents to the office of the State attorney.
This power is further enlarged by authorizing the issuance of
instanter subpoenas by State prosecutors in Florida.
Thus, Florida's prosecutors can require an individual to
immediately come to the prosecutor's office for the purpose of
providing investigative information to the prosecutor. Each
prosecutor is authorized to administer the oath to the
witnesses appearing before him or her. State prosecutors in
Florida can formally charge individuals with serious crimes by
information signed only by the prosecutor. Florida prosecutors,
by signing an information, can charge offenses including those
requiring mandatory life sentences.
These extensive powers are not enjoyed by Federal
prosecutors. The necessity for restraints on the exercise of
Federal prosecutorial authority is thus substantially different
from that of Florida state prosecutors. Yet, section 530B would
impose the same limitations on Federal prosecutors as are
imposed on State prosecutors. In a very real sense, Federal
prosecutors have the worst of both worlds--substantially
different and in many respects less authority than Florida
prosecutors, but the same legal and ethical constraints.
The potential for section 530B to interfere with grand jury
investigations in Federal practice is very real. Unlike
Florida, where crimes are charged by information, the U.S.
Constitution requires all serious Federal charges to be brought
by grand jury indictment. Florida rules, which give witnesses
the right to legal representation within the grand jury, are
thus less likely to interfere with State law enforcement
because that system utilizes grand juries very differently from
Federal grand jury practice.
Similarly, Florida rules regarding grand jury secrecy are
significantly more restrictive than Federal grand jury secrecy
rules. Under Florida law, witnesses appearing before the grand
jury are prohibited from disclosing the nature of their
testimony or the inquiries of the grand jury. No such
prohibition exists under the Federal rules.
The development of the legal and ethical restraints on the
exercise of prosecutorial authority are inextricably
intertwined with the authority and power granted to the
prosecutors within that specific criminal justice system. To
apply those restraints without limitation to a wholly different
criminal justice system is illogical and self-defeating.
As a State prosecutor, on numerous occasions I effectively
utilized the subpoena power granted to Florida prosecutors,
including the instanter provisions of that authority. While
investigating the homicide of a patient in a secure mental
health facility, the necessity for acquiring information
regarding the location and identities of patients arose. This
information was needed immediately. Unfortunately, the facility
was unwilling to cooperate with law enforcement and, in fact,
had refused to provide any information despite the fact that
much of the requested information did not relate to patients or
patient care.
Within a few minutes of being notified by law enforcement
of the problem, the director of the facility personally
appeared before me, pursuant to subpoena, and was required to
respond to the inquiry. The information thus obtained
significantly contributed to the successful conclusion of the
investigation and ultimately to the conviction of the defendant
for first-degree murder. The specific procedure utilized in
this State prosecution is unavailable to Federal prosecutors.
Further compounding the problem for Federal prosecutors is
the fact that they would be subjected to very restrictive
ethical covenants regarding contacts with represented persons
in Florida. Florida bar rule 4-4.2, in essence, makes it
unethical to communicate with a represented person without the
consent of the individual's lawyer. On its face, this is a very
reasonable rule. However, when applied to the public necessity
for undercover investigations, it has the very real potential
to substantially impact on the public safety.
A recent case in my office is illustrative of the necessity
for the use of undercover investigations against represented
persons. A $100 million-a-year drug distributor was arrested in
Hong Kong and extradited to the Northern District of Florida in
March 1994. He pled guilty and agreed to cooperate in the
prosecution of the other members of his worldwide organization
and to forfeit the proceeds of his drug trafficking. This
defendant did identify and forfeit nearly $100 million, but he
chose to hide additional assets.
According to an indictment returned in the Northern
District of Florida in 1998, this drug trafficker, with the
help of one of his lawyers, conspired to launder some of his
hidden assets to finance a scheme to bribe the district judge
responsible for his sentencing.
Senator Thurmond. Mr. Patterson, your time is up. Are you
about through? Just put the rest in the record.
Mr. Patterson. Yes, sir, if I could have 30 seconds.
Senator Thurmond. OK; we will limit you to 30 seconds.
Mr. Patterson. In closing, I am very grateful for the
opportunity I have had to serve as a prosecutor in both the
State of Florida and as U.S. attorney for north Florida. I am
deeply humbled by the authority entrusted to me. I left private
practice in 1983, when my oldest son was old enough to
understand what my work was all about. I became a prosecutor so
that I could tell him that his father's job, indeed his
father's duty, was to do the right thing and to seek justice. I
am as proud of the innocent people that I have exonerated as I
am any conviction I have obtained.
Thank you, Mr. Chairman.
Senator Thurmond. Thank you, Mr. Patterson.
Mr. Carter.
Mr. Carter. Thank you, Mr. Chairman. Thank you for the----
Senator Thurmond. Excuse me just a minute. Now, these
lights are not to be just looked at because they are pretty. As
long as it is blue, you can talk. If it turns yellow, your time
is about up, so arrange to stop quickly. The red means it is up
and you must stop.
OK, go ahead.
Senator Biden. Otherwise, you will be indicted. [Laughter.]
Mr. Carter. I will try to avoid that.
Senator Schumer. The rules of the Capitol.
STATEMENT OF ZACHARY CARTER
Mr. Carter. Thank you for this opportunity to share my
concerns regarding the probable impact of section 530B on
Federal law enforcement in the Eastern District of New York.
Nowhere is the distinctive role of Federal law enforcement
more prominently implicated than in the New York metropolitan
area. The Eastern District of New York covers the New York City
boroughs of Brooklyn, Queens and Staten Island, as well as the
suburban counties of Nassau and Suffolk on Long Island.
As host to both John F. Kennedy International Airport and a
major seaport, the Eastern District is one of the Nation's
busiest centers of national and international commerce. Like
many of this Nation's major ports of entry for both goods and
travelers, our district is afflicted by major trafficking in
narcotics, customs and immigration violations, thefts from
interstate and international shipments, and a myriad of other
distinctly Federal offenses associated with busy commercial
hubs.
Investigations of criminal enterprises across State
boundaries are not the exception for our office, but the rule.
If you were to visit our office on a typical day, you would
observe most of our assistant U.S. attorneys on the phone
issuing long-distance direction to Federal law enforcement
agents assigned to field offices across the various States to
interview witnesses, engage in undercover operations,
electronically monitor conversations of suspected criminals,
and take other investigative steps in support of ongoing
investigations into narcotics trafficking, thefts from national
and international commerce, alien smuggling, and trafficking in
illegal firearms.
It is not the multi-State character of most Federal
investigations that makes Federal law enforcement missions
unique. The fact is that the Federal Government is charged with
the primary responsibility to investigate complex crimes
committed by multilayered organizations. Whether the enterprise
under investigation is a drug cartel, an organized crime
syndicate, a health maintenance organization, or a publicly
traded corporation, Federal law enforcement depends on its
capacity to identify and interview witnesses within these
organizations in order to fulfill our law enforcement
responsibilities.
Currently, the assistant U.S. attorneys supervising these
important investigations are guided by ethical rules of the
States where they are admitted and the courts before whom they
practice, unless those rules are inconsistent with Federal laws
or regulations. As a result, insofar as the performance of
their Federal law enforcement responsibilities are concerned,
Department attorneys can be secure in the knowledge that their
conduct will be guided by largely consistent principles, even
where investigations touch several different States.
To date, the Federal courts have generally recognized the
special nature of law enforcement, and specifically Federal law
enforcement, by interpreting ethical rules in a way that
carefully balances the civil liberties interests of all
individuals against the special challenges of Federal law
enforcement. If Section 530 of Title 28 is permitted to take
effect, however, this situation could fundamentally change.
Permit me to offer a few examples of how section 530B may
impact on important investigations conducted under the
supervision of assistant U.S. attorneys in my office. Virtually
by definition, major narcotics investigations touch multiple
jurisdictions. While individual transactions may be intrastate,
for the most part major Federal law enforcement investigations
of major cartels' responsibilities for trafficking in narcotics
span both international and national boundaries.
Typically, significant investigations commence with the
seizure of a substantial shipment of narcotics either at the
border or during its transshipment across the United States.
Individuals arrested in possession of substantial quantities of
drugs often cooperate with law enforcement agents and agree to
initiate electronically monitored conversations with their co-
conspirators. These conversations often lead to the
introduction of an undercover officer or confidential informant
into the drug organization under investigation. The undercover
investigation, in turn, may present further opportunities for
electronic monitoring, and the development of additional
accomplice witnesses as participants in the scheme are
discreetly arrested and persuaded to cooperate.
If section 530 is permitted to take effect, the
availability of any or all of these standard investigative
techniques may turn on whether ethics rules of one of the many
States touched by a major drug trafficking enterprise permit
their use. There are States in which the surreptitious
recording of conversations, even in the course of criminal
investigations, are prohibited by the State's ethics rules.
Imagine the irony of a single investigation where consensual
monitoring of conversations of suspected drug traffickers
conducted in one State is permissible, but consensual
monitoring of conversations by their co-conspirators in another
State is not.
Consider the dilemma for Federal law enforcement when a
major drug cartel, suspecting a pending investigation, retains
an attorney who declares that he now represents a broad range
of persons not yet under indictment or other charged. In
certain States, Federal law enforcement agents could be safely
directed by Department attorneys to interview potential
witnesses. In others, however, such contacts may be prohibited
by State ethics rules. In still others, the interpretation of
relevant State ethics provisions might be uncertain.
Particularly in the area of narcotics enforcement, section
530B can be expected to undermine the effectiveness of major
investigations. At the very least, Department attorneys will be
inhibited from undertaking the kind of investigative
initiatives that have been repeatedly approved by the Federal
courts as consistent with constitutional principles and civil
liberties concerns, but may be inconsistent with State ethical
provisions that have been enacted without due regard for the
legitimate imperatives of law enforcement.
All of the problems that I have described can recur with
equal force in major securities fraud and healthcare fraud
cases, most of which are national in scope. In reviewing my
district's docket of cases and investigations, I was hard-
pressed to find more than a handful of matters that were not
multi-State in character.
A Federal system that is unified by its substantive
criminal laws, its rules of procedure and its sentencing
guidelines should be unified as well by a consistent set of
ethical rules governing the conduct of Department attorneys in
the enforcement of Federal laws. Such a system honors the
unique role of Federal law enforcement and continues to
preserve the liberties of the people we are sworn to protect.
Thank you.
Senator Thurmond. Thank you.
Now, Mr. Holder, either you can answer these questions or
turn to one of your assistants if you would rather have them
answer.
Mr. Holder. If the question is too difficult, I will let
them answer.
Senator Thurmond. The first question, Mr. Holder, is many
proponents of the McDade amendment have said that it is needed
to deter prosecutorial misconduct. Will adding more rules and
regulations for Federal prosecutors to follow help eliminate
isolated instances of impropriety, and what efforts has
Attorney General Reno undertaken to address prosecutorial
misconduct?
Mr. Holder. Well, Mr. Chairman, I don't think that there
are needs for additional mechanisms. There are, I think,
sufficient mechanisms in place. Attorneys who represent the
United States already have to follow the ethical rules that are
set by the States in which they are admitted. We follow the
rules of the courts in which we practice. And in addition to
that, there are internal Justice Department guidelines.
With regard to what the Attorney General has done, she has
tripled the size of the Office of Professional Responsibility.
We have gone from 10 to 35 FTE, from 7 to 22 lawyers, and we
have had a budget increase from $1.4 million to $4.3 million.
It seems to me that given what the Attorney General has done,
her commitment to continue that kind of effort, and the kinds
of things that are in place already, there is really not a need
for the McDade amendment.
Senator Thurmond. Mr. Holder or one of your assistants, it
seems to me that the variance in some States' rules from
established Federal practices could be very unfair for a
Federal prosecutor. For example, can you foresee a possible
situation where one prosecutor involved in a multi-State
investigation could be disciplined under his State's ethics
rules for conduct that another prosecutor from another State
who is also a member of the same team could be commended for?
Mr. Holder. I think Mr. Carter will handle that one.
Mr. Carter. Certainly, particularly in large-scale
narcotics investigations, and even in a recent alien smuggling
investigation that occurred in my district, the directions that
were given by the assistant U.S. attorney who was coordinating
the investigation at that time could have resulted in different
consequences for her ability to practice, depending on where
she was giving the direction at a particular time.
In this particular case, the assistant U.S. attorney from
my office was admitted to practice in the State of Florida. She
was coordinating an investigation of a number of Mexican aliens
who were being held in involuntary servitude in Queens, NY. She
coordinated a series of arrests and interviews and other
investigative steps that spanned several jurisdictions. She
coordinated that investigation, curiously, from her cell phone
at her high school reunion in Miami, FL.
She caused the arrest of individuals in California, in
Illinois, in North Carolina. And depending on what the ethics
rules were with respect to contacts with represented persons,
with respect to electronic consensual recording of
conversations, there could have been different levels of
jeopardy or praise with respect to her conduct of that
investigation.
Senator Thurmond. Mr. Holder or an assistant, you stated in
your testimony that you expect the McDade amendment to
discourage the now common practice of Federal prosecutors
supervising Federal agents in ongoing investigations. What do
you think the consequences of that will be?
Mr. Holder. Well, we have great faith in those people who
work in the FBI, the DEA, and the Federal agencies that work
with us in the Justice Department. But I think that the
involvement of Federal prosecutors in investigations and at an
early stage is an important way in which to conduct
investigations. It is kind of a trend that has been continued,
I would say, for the last 50 years or so.
If lawyers are involved in investigations at an early
stage, we can ensure in a way that you would not expect
investigators to make that all constitutional protections are
being followed while the investigation is going on, to make
sure that only constitutionally appropriate things are being
done while an investigation is ongoing. It does not mean to
say--and I don't mean to criticize in any way agents who work
for us. It is just that that is the responsibility; it is what
we are schooled at doing as Federal prosecutors. And our
involvement in these kinds of cases, I think, can only be of
benefit.
Senator Thurmond. Mr. Holder or one of your assistants,
given the vague wording of the McDade amendment, are you
concerned that courts may apply it outside of the area of
ethics rules and to substantive State law and procedure, such
as wiretaps or Federal grand jury practices?
Mr. Holder. We certainly do not view the McDade amendment
that way. It is our belief that it only applies to ethical
rules and not substantive rules. And yet we certainly expect
that there will be satellite litigation. In fact, there have
been instances where defense attorneys, citing McDade, have
indicated that substantive rules are covered by the McDade
amendment.
So we would expect that we would have to deal with those
kinds of motions. I think we should win them because I think
the law itself is relatively clear, but I think there is at
least a basis for an argument for a defense attorney to make
such a contention.
Senator Thurmond. And one more question. Mr. Holder, I
understand that the ABA is currently reviewing its model rules.
Even if the ABA were to satisfactorily address all of the
Department's concerns, which is probably unlikely, would having
acceptable ABA model rules alleviate all of your concerns about
the McDade issue?
Mr. Holder. No, it would not, Mr. Chairman. We continue to
work with the ABA on rule 4.2. In fact, the Attorney General
and I, along with the Associate Attorney General, met with the
leadership of the ABA. We had lunch at the Justice Department
just a couple of days ago, and we have pledged to work to try
to resolve those differences. But if that were resolved, that
would not minimize the impact of the McDade amendment.
We have the problem, as you just mentioned in your previous
question, about satellite litigation that would be a continuing
concern. And it seems to us that there just has to be a limit
on the number of ethical rules that we can expect prosecutors
to have to follow, and at the same time be as aggressive as we
want them to be in pursuing these interstate cases that are the
essence of what we do as Federal prosecutors. So I do not think
that a resolution of rule 4.2 with the ABA would completely
make the need for amending the McDade amendment go away.
Senator Thurmond. My time is up.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. Many of your
questions were the ones I was going to ask, so they are right
on point. So I just have a few more.
First, just to summarize to my friend and U.S. attorney
from my home of Brooklyn, NY, to Mr. Carter, I guess in summary
what you are saying is if the McDade rule were in effect, or
the McDade language stays in effect, it would put a major crimp
in many of your investigations, particularly narcotics
investigations.
Mr. Carter. That is correct.
Senator Schumer. And one of the main reasons for that, I
guess, would be the multi-State nature of so many of the things
that you do.
Mr. Carter. It is because of the multi-State nature of the
things that we do, and it is also because inherent in our
unique Federal responsibility is a responsibility for
investigating complex enterprises that not only span State
boundaries, but also have layers of organizational structure
that can only be penetrated by interviewing and soliciting the
cooperation of people who are members of these organizations,
whether criminal or not.
Senator Schumer. OK; to Mr. Holder, as I understand it, the
Justice Department is trying to sort of find a compromise
approach to regulating contacts with represented persons, and
you have been talking to the Conference of Chief Judges about
this.
Mr. Holder. That is correct.
Senator Schumer. Could you tell us a little about that?
Mr. Holder. Yes; we have had ongoing conversations with the
Conference, and in particular with Chief Judge Vesey from
Delaware. We have been at this for some time. Our positions
were substantially farther apart than they are now. I could not
predict, very honestly, that we are going to resolve these
matters or reach an agreement within a set period of time, but
I think we have been making progress. And I think that is one
of the reasons why I think it would be important for us to have
this 6-month extension to allow us to continue those
conversations, as well as the conversations that we have
started with the ABA.
And for the record, Senator Schumer, I am from Queens.
Senator Schumer. You know, I would say to my good friend
and our Chair, Senator Thurmond, and my colleagues I still
regard that as my district. When someone says ``Congressman,''
I turn right around. When someone says ``Senator,'' I just walk
right by. So I am glad to have two people from my congressional
district.
Mr. Holder. I thought I would play that for all it was
worth, yes. [Laughter.]
Senator Schumer. Great. Thank you. I think that really does
it for me, and I appreciate very much all three of your very
comprehensive and strong testimony. I look forward to working
with our chairman in terms of trying to get some kind of
extension.
Thank you, Mr. Chairman.
Senator Thurmond. Thank you very much.
Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman.
Mr. Holder, as I think you know, I am very sympathetic to
your testimony and the concerns that have been raised. Let me
play the devil's advocate, though, on the other side and just
get your reaction. You talked about Florida and what they
prohibit. How do the State prosecutors get along with that kind
of prohibition?
I mean, it would seem to me you could argue that if it was
such a horrible, horrible thing that the State of Florida would
have been faced with a very serious problem. Is there a public
outcry about the problem? For example, if Attorney General Reno
was back in Florida, she would be, I assume, under those rules
that you just talked about.
Mr. Holder. Well, actually, that is a very, very good
question, Senator DeWine, and why don't I let Mr. Patterson
answer it, only because I think I know the answer, but he, as a
person who is very well-versed in the Florida rules----
Senator DeWine. Well, you said you were going to give him
the hard questions.
Mr. Holder. This is actually not too hard, but I----
Senator DeWine. We just didn't know whether you were going
to go to Mr. Carter or Mr. Patterson.
Mr. Patterson. For a couple of reasons, the application of
that rule to State prosecutions is somewhat different. First of
all, the practice, in general--as I said in my statement, the
grant of authority to State prosecutors is substantially
different than it is to Federal prosecutors. In the way they
conduct their business that way, the use of investigative
subpoenas obviates some of the problems with regard to
contacts. Also, many of the kinds of cases that State
prosecutors do don't run into the more complex issues with
regard to contacts. They are less----
Senator DeWine. I appreciate that, Mr. Patterson, but I
have some familiarity with this. I was a prosecutor, and I
still have friends who are county prosecutors in Ohio and some
of those cases do get a little complex. I mean, they do involve
undercover agents and they do involve the same type operations.
They may not be as complex as what you all are doing, but it
seems to me some of those same basic principles apply.
Mr. Patterson. I agree. I think they do.
Senator DeWine. With all due respect, sometimes there is a
tendency on U.S. attorneys to think that they only get the
complicated and tough cases.
Senator Sessions. I have heard that before.
Mr. Patterson. I was a State prosecutor for 10 years.
Senator DeWine. Thank you. You qualify, then. You are all
right. [Laughter.]
Mr. Carter. As was I.
Senator DeWine. The credibility just went up. Thank you.
Mr. Patterson. I do think there is a significant difference
in the practice. And some of it may be subtleties, but the way
investigations are conducted by the State prosecutors in
Florida is just substantially different. They are given
different tools with which to accomplish those investigations
and it impacts on the contacts issue in a different way than
with Federal prosecutors.
The other reason it is different, and it is not a matter of
doing complex or more important--I look over at my State
colleagues now and suggest to them that many of the cases in
their offices are probably more difficult, more complex, and
some of the ones that are mine probably ought to be in their
offices. I don't know that we always sort that out exactly
right. But the fact of the matter is with regard to contacts,
Florida takes the position that the represented person, as
opposed to party, has to pertain to the same matter, and that
applies to State practice in a different way than it applies to
Federal practice.
Senator DeWine. I appreciate your answer.
Mr. Holder, let me turn to a related issue, but a different
question. The public in the last several years, because of the
investigation of the President, because of the high profile of
not just one independent counsel but numerous independent
counsels, I think has had a look into some questions. Some
questions have been raised, right or wrong, about prosecutorial
practices, and Senator Schumer made reference to that.
I don't want to get into the merits of any of that today,
but my question, though, is because of the spotlight on these
issues, is your Department doing any recent review of
prosecutorial practices? I am not talking about the independent
counsel, I am not talking about any one prosecution in your
Department or independent counsel. I am just talking about in
general. This issue is now much higher profile than it has been
before.
Mr. Holder. Yes; the Attorney General, as I indicated, I
think, earlier, has really given this special attention in that
she has tripled, I think, the size of the force, increased the
budget of our Office of Professional Responsibility. We have
also, in an attempt to calm the fears of people of what Federal
prosecutors do, made public in a way that we have not in the
past the results of OPR investigations, subject to the Privacy
Act limitations that we have.
I believe in 1997, we completed roughly--OPR completed
roughly 100 full investigations, found professional misconduct
in about 20 cases----
Senator DeWine. Mr. Holder, my time is almost up, and you
know the chairman does enforce the rules. I want to make sure I
get my question answered that was at least in my mind. I am not
talking about specific cases. I am talking about broad, general
policy. We do this, we don't do that. I mean, that is what the
public is looking at. Do we do certain things, interviewing of
witnesses, the procedure that is followed, all the things that
have come out in the last several years that clearly have been
high-profile? Are you looking at those issues? I am not saying
you should change one thing. I just want to know, are you
looking at them.
Mr. Holder. Yes; we do these things on an ongoing basis in
a variety of fora. I mean, our Attorney General's Advisory
Committee looks at these things. That is a group of U.S.
attorneys who come in once a month. There are about 15, 17 of
them there. Our Criminal Division has ongoing reviews with
regard to issues that come up specifically.
It is the responsibility of the Deputy Attorney General to
kind of coordinate all of these things, and so we have at any
one time people in my office interacting with people in the
AGAC, people in the Criminal Division, people in other parts of
the Department on the civil side as well--and we tend to forget
people on the civil side--always asking questions about things
that we either read about in the newspapers or general policy
questions that we have just to make sure that we are doing
things in appropriate ways.
And to be very honest with you, there have been questions
raised about independent counsels that we then consider to see
whether or not we are doing things in similar ways. If an
independent counsel is being criticized for something, that
raises the issue in the Justice Department and we ask questions
about that, sometimes finding that we have done things in a
similar way that an independent counsel has done, sometimes
not.
Senator DeWine. I appreciate it. Thank you very much.
Senator Thurmond. Senator Biden.
Senator Biden. Mr. Chairman, thank you very much. I would
ask unanimous consent that my statement be placed in the record
as if read, if I may.
Senator Thurmond. So ordered.
[The prepared statement of Senator Biden follows:]
Prepared Statement of Joseph R. Biden, Jr., a U.S. Senator From the
State of Delaware
Mr. Chairman, thank you for holding this hearing on an issue that
has triggered much debate. I do not believe that anyone questions the
importance of fairness to the proper functioning of our legal system.
This is particularly true when we talk about how prosecutors behave and
what effect that behavior has on citizens.
We talk about this in terms of ``ethics.'' But what we are really
talking about is power, the potential abuse of power, and what limits
are or are not appropriate on how prosecutors do their jobs.
One reason I am pleased that this hearing is being held today is
that it is an opportunity for us to talk, and to listen, to all points
of view. Too often we talk at each other or past each other. Perhaps in
our zeal to make the other understand our point of view, we overstate
our case. I hope we can avoid that today.
What I believe is at the root of the debate here is a fundamental
feeling many people increasingly have in their gut that they are
vulnerable to exercises of Federal power in every part of their lives.
Vulnerable to losing their privacy.
Vulnerable to losing their reputation.
Vulnerable to losing their liberty.
In saying this, I do not mean to suggest that there are thousands
of prosecutors running around with a total disregard for citizens'
privacy, reputations, or liberty. Nothing could be further from the
truth.
But we have some recent experience with just how far a prosecutor
without limits can go--and most likely few of us would ever have
thought that some of the things we have seen individuals suffer in the
name of vigorous prosecution could or would ever happen. But they did.
And so, we are having today's discussion in an atmosphere in which
we look for what the appropriate limits are to a guard against
potential abuses of power in the future. That debate is healthy and
good.
But we must also look at the reason why limits, or sometimes a rule
that appears to relax those limits, exists in the first place. I have
learned that sometimes what seems to be relaxation of accountability is
in fact only a way to level the playing field.
No one here today will argue that State ethics laws should not
apply in many ways to Federal prosecutors. They have before, they do
today, and they will in the future--with or without the McDade law
going into affect. But, as I believe we will hear today, different
States have different rules that govern how their State criminal
prosecutors operate. Sometimes those rules allow substantial
flexibility to the State prosecutors--even to allowing a single
prosecutor to decide whether or not someone should be indicted! That a
prosecutor can do so just by signing his or her name to a piece of
paper is a very broad discretion indeed.
And so it is no surprise that in those States there may be ethics
rules that impose restraints on prosecutor conduct. Should those rules
equally apply to a federal prosecutor who does not have so broad a
power? Maybe yes. Maybe no. That is a question we need to explore
today.
It is important so that the rights of all parties are properly
protected. It is important because without it, faith in our system of
laws and courts will erode. It is important because in the long run it
ensures that our laws are effectively enforced and our courts function
properly.
I believe that the vast majority of lawyers--and especially those
who are privileged to serve the Nation as Federal prosecutors--conduct
themselves consistently according to the highest standards of ethical
conduct. However, I also believe that it is important to our system of
laws and justice that there be an effective check on possible lapses
from that general rule. This protects everyone--prosecutors,
defendants, and the courts.
In my view, the debate here must focus not on speculation as to
potential ``chilling effects'' but should be based on real life
examples. And I should say that ``chilling effects'' are not always a
bad thing. I am interested in hearing about the facts and about the
types of situations that are of concern to prosecutors, to State
courts, and to counsel for defendants.
In particular, I am interested in hearing from the witnesses their
suggested solutions for the question of contact with represented
parties, the narrow area that I understand is at the core of this
debate. For example, what kind of changes to model ethics rules are in
the works that could resolve this problem without overreaching?
In finding a solution to the concerns that I am sure we will hear
much about this afternoon, I suggest that we all look for a middle
ground--a way to accommodate both the legitimate needs of prosecutors
to build their cases fairly and the interests of the judicial system as
a whole in ensuring that those who have the privilege of practicing law
do so consistently in accordance with the highest ethical standards.
I think this matter is really more simple than it looks. It is
about the potential for abuse of power and the proper constraints to
prevent that from happening. We need balance, but we also need to be
sure that we avoid unintended consequences in our search for that
balance. I look forward to hearing from the distinguished witnesses
before us regarding their various perspectives, based on their wealth
of experience. And, I look forward to hearing some suggestions for how
we can come to a solution that can take into account the range of
important interests at stake here.
Senator Biden. Gentlemen, if I can give you just one
Senator's view, this is not about ethics. This is about power
and the abuse of power. And I think there is a heightened
awareness on the part of the American people, unrelated and
related to Federal prosecutors, about their vulnerability to
invasions of their privacy; the abuse of power, whether it is
by you, a special prosecutor, a State prosecutor; about a whole
range of things that have taken this in a direction different
than if we had this hearing 3, 4, 5, 6, 10 years ago.
If 10 years ago you came up, Mr. Carter, and could make the
case, which in my view you made, that this would diminish the
ability of Federal prosecutors to get the bad guy, you would
have everybody up here saying, oh, we don't want to do that.
But now we are all aware when we look at out there--and I don't
want to get into an argument about Mr. Starr or any special
prosecutor, but about special prosecutors' apparent abuse of
power, or if it is not a technical abuse in the minds of the
public--gee, he went too far--all the way to issues where they
turn on ``20/20'' and find out how a hacker can get access to
their bank account and their medical records, having nothing to
do with the Federal Government. So there is this heightened
awareness.
And what I don't think, if I may be so blunt, that you have
all explained in the past--you began, Mr. Patterson, to do it
today, in my view--is this balance of power, the power that is
available to a prosecutor, and the constraints on the abuse of
that power. And let me be very specific.
As I understand it, in the State of Florida, when you were
a State prosecutor you had a power that far exceeded the
individual power that you have as a Federal prosecutor. If you
wanted to call me in as a potential target or to indict me, you
could as a State prosecutor call me before you, swear me in,
and based upon your signature on an information, the equivalent
of an indictment, you could bring me to trial. Is that right?
Is that a fair statement?
Mr. Patterson. That is correct, with one possible
exception. The issuance of the subpoena in the State of Florida
grants use immunity. So I couldn't subpoena you in, ask you
questions that I then use to charge you. But I could subpoena
you in, I could question you and charge you based on my
signature, yes.
Senator Biden. All right. Now, as a Federal prosecutor, can
you do that?
Mr. Patterson. No, sir.
Senator Biden. So that in order for you to indict me, you
have got to go to a grand jury. You have to get a whole group
of folks out there who are citizens in the State of Florida to
be convinced when you go before them or your assistant goes
before them that there is enough information on which to indict
me to take me to trial. Is that right?
Mr. Patterson. Yes, sir.
Senator Biden. And when you were a prosecutor in the State
of Florida, you had certain limitations on you based on the
State ethics rules, which are, in a sense--my phrase--the
ethics are more restrictive in the State of Florida, but then
again the power you have as a prosecutor is broader, right?
Mr. Patterson. Yes, sir.
Senator Biden. Now, the Federal ethics rules, if you will,
are a little less restrictive on a Federal prosecutor, but you
have less power. Is that right?
Mr. Patterson. Yes, sir.
Senator Biden. So it seems to me we should think about
either giving you the power that a State prosecutor has if we
are going to hold you to the ethics rules of the State of
Florida or if we are not going to give that power, not hold you
to the same ethics rules. And I don't think most people get
that.
What we are all after here is how to balance out power
because we know all power is abused, all power is abused. There
has never been a grant of authority given to anybody, not
individually, but generically, that ultimately somebody hasn't
abused--Senators; Presidents; prosecutors, Federal, State, and
so on.
So I think in order for us to be able to get a handle on
this, Mr. Holder--there are a lot of people very upset, and the
reason they are upset is not just because of Congressman
McDade's amendment. You saw the investigation that the
Pittsburgh Post Gazette did. You have seen other
investigations. There are a lot of people around here who
think--and I am going to end; I see the amber light, Mr.
Chairman.
What I think we have got to do here, in my view--and I am
going to suggest this as just one Senator--we have got to have
a time-out here. I think we should have a breather, a delay of
6, 8 months for McDade to go into effect, have you continue
your negotiations, which I think did not start early enough,
with the ABA, as well as the State chief justices.
And I think, Mr. Carter, if you could for the committee
submit a specific example of how one prosecutor working you
could be found in violation of a State ethics code and another
prosecutor working for you, because they are licensed in a
different State, could be praised for the same action, two
different people--you gave an example of one woman in three
States.
Find me an example, Mr. Holder, where you can show me one
investigation, two prosecutors involved in the same
investigation, each prosecutor a member of a different bar,
where the one bar were to hold them accountable under that
State ethics laws and another bar would not, because that is
the kind of information Senators need. They need to understand
that because we are worried about you abusing power, not you
personally, but we are worried about abusing power.
And I will close, Mr. Chairman, by saying you have
appointed more judges, you have appointed more U.S. attorneys
than any man in American history. I have recommended to the
President judges and U.S. attorneys. I take a whole lot less
time deciding who I want to recommend as a judge than I do as a
U.S. attorney because a U.S. attorney is more powerful. A U.S.
attorney, if they don't have an ethical equilibrium, can do
great damage--the most dangerous people in America if they are
off, the best people in America if they are on. You have got to
convince us here that this notion that seems on its face so
reasonable--why shouldn't you be held to the strictest
standard, why that is not a good idea. It is not a good idea
because they have a lot more power when the standard is
stricter. You have got a lot less power and you have got more
hoops to go through so that we can guarantee that you don't get
out of whack.
Thank you, Mr. Chairman.
Senator Thurmond. There is a vote on in the Senate, so we
will have to take a recess and allow the Senators to go and
vote.
Do you want to go ahead?
Senator Sessions. I can do it briefly, yes, sir. I believe
we would have time to finish my little bit.
Senator Thurmond. Do that, and take charge.
Senator Sessions. All right, sir.
Senator Thurmond. And then call a recess until we get back.
Senator Sessions. Thank you. Thank you, Mr. Chairman.
Senator Thurmond. Senator Sessions, of Alabama.
Senator Sessions [presiding]. Mr. Chairman, thank you for
conducting this hearing. I do believe this is a very important
issue, and Mr. Holder and I have talked about it a number of
times and I share his concern.
I really agree with Senator Biden in all of what he said
and I think it is a question of power, but it strikes me,
Senator Biden, it is also a question of power as to whether or
not the Federal Government, the U.S. Government, will allow
perfectly legal, legitimate law enforcement techniques to be
declared illegal by a bar association in some State. They
weren't elected to set techniques or rules of behavior, and
then they would just turn around and say, well, it may be legal
for you to do that in Federal court, but we are going to disbar
you, Assistant U.S. Attorney.
Mr. Holder, am I exaggerating the danger we are dealing
with here?
Mr. Holder. No; that is a major concern. I mean, Oregon,
for instance, talks about the inability of prosecutors to
engage in undercover activities, which is something that we
want our assistant U.S. attorneys to be involved in, in
response to what Senator Biden was saying.
Senator Sessions. You want them monitoring because there
less violations of civil rights occur when lawyers are involved
with the investigators and supervising or monitoring an
investigation. Is that correct?
Mr. Holder. Right, exactly. Somebody who was subject to the
Oregon rules might be disciplined for doing the same kind of
thing that somebody in Brooklyn following New York rules would
get praised for, and that is the concern that we would have.
Senator Sessions. And one of the unintended consequences--
correct me if I am wrong, but one of the unintended
consequences could well be that the agents would say, let's
don't talk to the prosecutor because he bound by all those
rules; this is a perfectly legal technique; let's just do it on
our own and not talk to the lawyer. Do you agree with that, Mr.
Patterson?
Mr. Patterson. I think that is one of the most pernicious
and likely effects of this Act going into effect. I think that
is exactly right.
Senator Sessions. Mr. Carter, do you agree with that?
Mr. Carter. Yes.
Senator Sessions. You know, we learned one thing in the war
of Northern aggression. One of the things is that the Federal
law is supreme, and we are really subjugating legitimate
Federal power to a State or local bar association who is not
elected by anybody of significance, except for a few members of
the bar. And I am a member of the ABA and I respect it greatly.
But, in truth, a rarified group are on the national ABA
criminal law committees and the local criminal committees. They
are not even typical of lawyers, and some of them have strange
ideas about what is ethical and what is not. I just really
think that would be a serious thing.
Let me read you this little matter from a case I think you
cited earlier. The 11th circuit case of Lowry highlighted this
problem, I think. The court recognized that ethics rules can,
in effect, be not much different or really the same as
evidentiary rules. That is your circuit, Mr. Patterson.
Mr. Patterson. Yes, sir.
Senator Sessions. The 11th circuit rejected the notion that
Congress, ``intended to turn over to State supreme courts in
every State the authority to decide that otherwise admissible
evidence can't come into Federal court.'' Do you think that is
a legitimate point the 11th circuit made?
Mr. Patterson. I think many of the expressions in Lowry are
right on point. I think they also go on to suggest that there
are only a few ways you can exclude evidence from Federal
court, and one of the primary ones is through Congress and the
other is through the Federal courts, and not through State bar
associations. But that is a very real concern.
The practice of the grand jury, which is near and dear to
my heart, because of the differences in State and Federal
practice in Florida--in Florida, you are permitted to have an
attorney in the State grand jury, inside the grand jury. Are we
now going to get into ethical concerns if a Federal prosecutor
keeps a witness' lawyer out of the grand jury, that somehow he
has violated ethically that person's right to counsel because
the State law permits them to be in there? There are many of
those kinds of rules that are very problematic.
And, Senator, I would just like to say that I am not from
New York, but many of the people in my district call it
``L.A.,'' ``lower Alabama.''
Senator Sessions. Lower Alabama, next door, I guess.
One more thing. Mr. Holder, I appreciate your increasing
the OPR section, although sometimes I think just money isn't
necessarily a strengthening of any institution. Are you
satisfied that you have an effective system that takes
complaints of prosecutorial misconduct seriously and that
attorneys can and will be sanctioned if they violate the
highest standards of ethics?
Mr. Holder. Yes, I am very confident of that. And I think
you are right; it is not just a question of money. We have a
person there now whose name is Marshall Jarrett, who has been
the head of OPR now for just a few months, a person whom I have
worked with over a good number of years who I think is an
aggressive prosecutor who will do a good job at OPR.
Let me be very honest with you. When the Attorney General
took over, there was a huge backlog in the number of cases in
OPR that had just not been resolved. We got in people from the
field to look at those cases, to reduce that backlog, to make
sure that these cases were being done as quickly and as
efficiently as they could. We were criticized by members of the
judiciary for the length of time we were taking to conduct
these investigations, and frankly I think some of that
criticism was justified.
I think we have in place now a system that does the
appropriate job, that can do a good job at looking at these
matters and making sure that in those instances where our
people engage in misconduct or make mistakes that they are
appropriately disciplined.
Senator Sessions. Well, I think we need to go cast our
vote. Thank you so much, and we will have the next panel as
soon as we can get back. We will be back in probably 10
minutes. Thank you.
Mr. Holder. Thank you.
[The prepared statement of Mr. Holder follows:]
Prepared Statement of Deputy Attorney General Eric H. Holder, Jr.
I want to thank the members of the Subcommittee for permitting me
to testify concerning section 530B of title 28 of the United States
Code. Section 530B requires Department attorneys to comply with ``state
laws and rules, and local federal court rules, governing attorneys in
each State where such attorney engages in that attorney's duties, to
the same extent and in the same manner as other attorneys in that
State.'' Section 530B will take effect on April 19, 1999, absent action
by the Congress, and this provision will cause significant problems for
federal civil and criminal law enforcement.
I will give you specific examples of the kinds of problems that
section 530B creates, but I want to say at the outset that the
Department of Justice demands that its attorneys carry out their law
enforcement responsibilities in conformity with the highest ethical
standards. And they do so. That is what the American public expects of
its government attorneys, that is what the Congress expects, and I can
assure you, as a federal prosecutor and former judge, that is what
federal judges expect. Indeed, federal judges hold Department attorneys
to a higher standard than anyone else who appears before them.
I also want to emphasize that the Department has no desire to oust
states of disciplinary authority or to exempt Department attorneys from
the reach of state ethics rules. The Department's policy is that its
attorneys conform in general to the ethical rules of the jurisdictions
in which they are licensed and the rules of the courts in which they
appear. In addition, the Department has volumes of regulations to which
its attorneys must conform upon pain of disciplinary action. Moreover,
Department attorneys are subject to discipline not only by state bars
and federal courts, but also by the Department's Office of Professional
Responsibility, which Attorney General Reno has more than tripled in
size during her tenure. And, these attorneys are subject to the code of
conduct set by the Office of Government Ethics for all executive branch
employees. See 5 C.F.R. Part 2635, Standards of Ethical Conduct for
Employees of the Executive Branch.
Given this background, one might ask--what's wrong with the McDade
amendment? The answer to that question requires a look at some of the
state bar rules themselves and the quandary that many federal
prosecutors will face if the amendment goes into effect. The McDade
amendment has two principal flaws. First, the amendment subjects
federal prosecutors to all rules in all jurisdictions, whether or not
those rules were drafted with the nationwide practice of federal
prosecutors in mind. Oftentimes, state bar rules, which developed in
the particular circumstances of a single state's legal system, do not
fairly address the complex work of federal prosecutors, who supervise
wide-ranging national investigations and enforce public law to the
benefit of everyone. Second, the McDade amendment's vague directive to
comply with rules in each state where an attorney engages in that
attorney's duties leaves prosecutors unsure about what rule applies to
particular conduct. There is one certain result of this confusion--
cautious attorneys will simply refrain from taking critically important
investigative steps or will leave agents to make their own decisions
about whom and how to investigate. This turns back the clock on the
salutary development of the last 50 years during which attorneys have
become much more involved in investigations, a development that helps
assure that citizen's rights are respected during federal
investigations. In addition, section 530B will result in significant
satellite litigation that will have nothing to do with ethics, but
rather will serve as a weapon to delay or deter legitimate law
enforcement. I will discuss each of these problems in turn.
The bottom line is that there should be no mistake about the effect
of Section 530B. It will undermine the ability of federal attorneys to
serve the public interest through use of legitimate techniques to
investigate crime and fraud against the United States.
state ethics rules that interfere with federal law enforcement
Codes of professional responsibility for attorneys developed over
the past century as codes designed to promote honesty and integrity
among attorneys. State rules with this focus--for example, rules
requiring honesty to the court and opposing attorneys and parties,
governing conflicts of interest, and regulating trust accounts--are
straightforward and even--handed in their treatment of different
categories of attorneys. More recently, however, state bar rules have
expanded into areas that are more the province of courts and
legislatures--for example, rules governing the investigative steps
prosecutors are permitted to take, what evidence must be presented to
grand juries, and what procedures must be followed to subpoena non-
privileged information from attorneys. Such rules, rather than simply
regulating honesty and integrity, purport to supplement, if not
replace, federal rules of procedure and present problems for federal
attorneys that more traditional ethics rules never did. Moreover,
because state codes of professional responsibility contain such rules,
placing the authority to set these rules in state bars becomes much
more problematic. State bars are unlikely to consider federal interests
in setting their bar rules. Indeed, state bar rules often reflect the
interests and priorities of the private bar.
These problems are illustrated by the recent application of state
bar rules governing contacts with represented parties to federal law
enforcement. Contacts rules were developed to govern private attorneys
in civil litigation. Beginning in the late 1980s, defense attorneys
made increasing efforts to have these rules applied to federal
prosecutors investigating federal criminal cases. In 1994, faced with
different interpretations of Model Rule 4.2 in each state and very
restrictive interpretations in some, the Department promulgated its own
ethics rule to provide a uniform, national rule on this issue, which is
fundamental to so much of what federal prosecutors do. That regulation
was not an attempt to exempt Department attorneys from ethics rules--
rather, the regulation sets forth explicit rules for Department
attorneys, provides sanctions for their violation, and contemplates
state bar discipline for intentional violations. Since that time, the
Department has been working with the Conference of Chief Justices and
others to develop a new Model Rule that would ensure that prosecutors
can participate in traditionally accepted investigative, techniques
without undue fear of ethical sanctions. Although we continue in these
efforts, we are still faced with many different interpretations in the
different jurisdictions, and the ABA's Model Rule is even more
restrictive today than it was in 1994.
Here are some concrete examples of the problems we will face if the
McDade amendment goes into effect:
Undercover operations are critical to many major investigations,
including investigation of major drug trafficking rings, terrorist
groups, and traditional organized crime. The Committee on Professional
Ethics of the Florida State Bar Association, however, has issued an
opinion that leaves this basic law enforcement technique in doubt. Most
state contacts rules have an exception for contacts ``authorized by
law.'' Florida's rule has no such exception, and the Florida state bar
apparently considers the rule to be absolute--attorneys and agents
working for Attorneys may not communicate with any person who claims to
have a lawyer with respect to a particular matter. Accordingly, the bar
opined that federal prosecutors are, not permitted to conduct
undercover operations against a target who is represented by counsel.
Fl. Eth. Op. 90-4 (1990 WL 446959) (Fla. St. Bar Assn.). Thus, for
example, a federal prosecutor would not be permitted to supervise an
undercover operation to infiltrate an organized crime enterprise if the
targeted mob boss was represented by counsel. The Florida bar minimized
the obvious harm to law enforcement that this rule would cause by
``observing'' that the target would likely be unaware of the undercover
operation and so would not be represented in the ``matter,'' even if
the target had counsel. But this completely ignores the realities of
modem federal law enforcement--would the Florida bar really have
believed that John Gotti did not know he was under investigation?
Criminal organizations are often perfectly well aware that they are
being investigated--they just do not know exactly what the government
is doing. Under the Florida bar rule, Mr. Gotti's lawyer might have
been able to write to the United States Attorney, stating his knowledge
of the investigation, and most likely even of the existence of a grand
jury probe, announce his representation of Gotti, and thereby preclude
the government from wiring an undercover F.B.I. agent to try to elicit
incriminating statements from Gotti.
A recent case in Minnesota presents the same problem. In State
v.Roers, 520 N.W.2d 752 (Ct. App. 1994), the court held that
Minnesota's contacts rule was violated by undercover communications
with someone represented by an attorney. If the court really meant that
any such contact, even those prior to arrest or indictment, is
prohibited by the rule, undercover investigation of ongoing criminal
activity could be seriously hampered.
The pre-indictment, undercover activities that would appear to be
prohibited by these rules are exactly the types of legitimate,
traditionally accepted activities that federal courts have routinely
approved. See, e.g., United States v. Balter, 91 F. 3d 427 (3d Cir.
1996) (allowing an informant to tape a suspect in a murder-for-hire
investigation); United States v. Powe, 9 F.3d 68 (9th Cir. 1993);
United States v. Ryans, 903 F. 2d 731 (10th Cir. 1990). Under section
530B, a federal prosecutor in those states will be unlikely to
authorize or participate in such activities--not because they are not
legitimate, fully constitutional investigative techniques, but because
they have been questioned or prohibited by state bars. This will
seriously interfere with major undercover operations in those states
with the most restrictive rules.
Investigation of criminal activity that continues after arrest
could also be seriously hampered. In general, prosecutors cannot
communicate with a represented defendant about the ``matter'' for which
the individual is being represented, but may communicate with the
defendant about another ``matter.'' Oftentimes, U.S. Attorney's offices
learn that defendants under indictment are continuing their criminal
conduct, such as by making new drug sales, or are seeking to avoid
conviction through obstruction of justice or witness tampering. For
example, in a recent case investigated by a United States Attorney's
office, defendants in a securities fraud case were released on bail
following their arrest. In the course of interviewing victims,
prosecutors learned that one elderly victim had been contacted by a
defendant seeking $250,000 based on the same fraud. Prosecutors
arranged for the victim to tape record ensuing conversations with the
defendant, producing evidence of ongoing fraud by the defendant and
others. Prosecutors must be able to investigate such ongoing conduct in
order to ensure that indicted defendants are not able to continue their
illegal conduct.
A similar, and even more dangerous situation, occurs when
prosecutors become aware that a defendant is trying to arrange for the
murder of a witness Under the Department's regulation, prosecutors can
place a wire on a cooperator with instructions to try to get the
defendant to talk about his plans. A rigorous no-contact rule could
prevent prosecutors from using this essential investigative technique,
with potentially disastrous consequences. This is not a hypothetical
circumstance. In a recent case, a United States Attorney's office was
told by an informant that an indicted defendant was seeking to murder a
witness against him and a law enforcement officer involved in the
investigation. The office consulted with state bar counsel about the
issue of an undercover contact of the defendant by the informant. The
state bar counsel said that the contact would violate the state's
ethics rules, although it was unlikely that the prosecutor would be
disciplined.
Of course, a state bar might decide that such contacts are
permissible because investigation of the new offense is not the same
``matter'' under the contacts rule. This is the position taken in the
Department's contacts rule and by the federal courts. Most states,
however, have no law on point and the contacts rules themselves provide
little guidance. The result is that prosecutors will have to put their
licenses to practice law on the line in order to do their jobs.
This fact--that the consequence to prosecutors of mistaken
predictions of the direction of state ethics rules is professional
discipline--is one of the major problems with section 530B. When
prosecutors are faced with contacts issues, they do not have time to
solicit opinions from state ethics authorities. Consider the
predicament of a federal prosecutor licensed by the state of Virginia
who faces a situation similar to that one of my prosecutors when I was
the United States Attorney for the District of Columbia faced. That
prosecutor learned from a witness that an incarcerated defendant was
trying to convince the witness to leave town before trial. The
prosecutor received information from another source that the defendant
was going to have the witness killed if she did not leave. On the day
the prosecutor learned this information, he sent the witness, equipped
with a hidden tape recorder, to talk to the defendant about his desire
that she leave town. Immediately after the visit to the jail, the
United States Marshals Service took the witness out of town for her
protection. The prosecutor obviously did not have time to seek advice
from bar counsel.
In Virginia, the prosecutor might have been deemed to have
committed professional misconduct. In Gunter v. Viriginia State Bar,
385 S.E.2d 597 (Va. 1989), the Virginia Supreme Court held that
recording conversations between third parties by a lawyer, or with his
or her authorization, without the consent of all parties to the
conversation is unethical. Despite the fact that the court relied on an
American Bar Association ethics opinion containing an explicit
exception for law enforcement, the Virginia bar recently distributed
continuing legal education materials that suggested that, the
prohibition was absolute. When a federal prosecutor in Virginia made
inquiries of the Virginia bar ethics authorities, he was told that the
prohibition contains no exceptions for prosecutors. When the prosecutor
asked how Virginia state prosecutors cope with this rule, he was told
that the police conducted these sorts of activities without any
involvement by prosecutors. Perhaps the bar would arrive at a different
conclusion if an actual case presented itself. But an actual case will
present itself only when a federal prosecutor licensed in Virginia
faces professional discipline. Federal prosecutors carrying out their
duties to enforce the law should not have to place their professional
licenses at risk in this way.
The problems presented by state bar contacts rules are by no means
limited to criminal law enforcement. One of the most significant
problems posed by these rules is in the corporate context, involving
both civil and criminal law enforcement. Attorneys representing
corporations often claim to represent all employees of the company,
perhaps thousands of employees, and sometimes even former employees, a
group that might include employees fired for whistle-blowing
activities. Corporate counsel is often, even usually, aware when the
company is under investigation by the government. The Model Rule has
been criticized for being vague on this point, and this vagueness has
led to different interpretations in many states--even where the, state
rules themselves are identical. Some state contacts rules are extremely
broad, covering not only senior management but any employee whose
statements can be imputed to the corporation. Some state rules may even
cover former employees. Compare Public Service Electric & Gas Co. v.
AEGIS, 745 F. Supp. 1037 (D.N.J. 1990) . (prohibiting all contact with
former employees except through formal discovery) with Curled v.
Cumberland Farms, Inc., 134 F.R.D. 77 (D.N.J. 1991) (permitting
contacts with former employees).
These rules make it very difficult to investigate corporate
wrongdoing. Government attorneys might not even be able to speak to
employees, such as whistle-blowers, who want to speak to the
government, who have no interest in being ``represented'' by corporate
counsel, and who initiate contact with the government. United State's
Attorneys offices regularly receive letters from corporate counsel
stating that counsel represents all employees of the company and
purporting to forbid the government from speaking to any of them
without counsel's permission. Indeed, the United States Attorney's
office in San Francisco received such a letter from counsel for a
corporation under criminal investigation who asserted that California's
contact rule prohibits contacts with employees ``[e]ven in situations
where the corporation's and the employee's interest may not be the
same.'' The contacts rule attempts to ensure that corporations are not
deprived of the benefit of counsel, but it is not intended to shield
wrongdoing or to allow corporate counsel to avoid conflicts when
individual employees have interests different from the corporation.
A recent decision in California shows how significant this problem
could be if state ethics rules apply across the board to Department
attorneys. In United States v. Talao, No. Cr. 97-0217-VRW (N.D. Cal.
1998), the United States initiated a criminal investigation as a result
of allegations and information in a qui tam action. The qui tam action
was based on allegations of wage and hour violations and kickbacks
against a closely-held corporation and its owners. The company and the
owners were represented by one attorney. An employee of the company was
subpoenaed to testify in the grand jury. The owners of the company
learned of the subpoena and instructed their attorney to accompany the
witness to the grand jury. On the day of her grand jury appearance, the
employee met with the company and owners' attorney prior to going to
the courthouse. However, the employee went to the courthouse and met
the prosecutor without the attorney. The employee told the prosecutor
that she did not want to be represented by the owners' attorney and, in
addition, that one of the owners had telephoned her the previous day
and told her to testify falsely in the grand jury. The prosecutor told
the employee that she was entitled to counsel and offered to obtain
court-appointed counsel. The employee declined counsel. When the
owners' attorney arrived at the courthouse, the employee refused to
meet with him. Despite all of this--the employee's refusal to be
represented by the company and owners' attorney, her refusal even to
meet with him, her statement to the prosecutor that the owners of the
company were apparently suborning perjury, and the prosecutor's offer
to obtain counsel for the employee--the court still found that the
prosecutor had violated California's version of Rule 4.2 concerning
contacts with represented persons and determined that, if the case
proceeded to trial, the jury would be informed of the government's
``misconduct'' for the purpose of evaluating the credibility of the
employee's testimony.
Although I have focused on state rules on contacts with represented
persons, which pose the most serious challenge to effective law
enforcement, many other bar rules threaten to interfere with legitimate
investigations. Some state bar rules purport to regulate when a
prosecutor can subpoena an attorney or what information a prosecutor
must provide a grand jury. In these areas, the bar rules seem to go
beyond the regulation of ethics and instead attempt to regulate rules
of procedure and evidence. In addition to interfering with what is
properly the province of the legislature and the courts, these rules
also create new obstacles for federal prosecutors.
It is difficult to identify all the rules that might affect federal
prosecutions because some bar rules, which are wholly legitimate and
important on their face, are interpreted in a way that no one would
expect. For example, in Oregon, a state bar rule, one with a salutary
prohibition of deception, has been interpreted to prohibit government
attorneys' participation in sting operations because these operations
involve deception. In re Gatti, No. 95-18 (Ore. St. Bar). A federal
prosecutor conducting an investigation of a drug organization would
thus be prohibited from authorizing an undercover purchase of drugs. A
prosecutor could not supervise a sting operation intended to lure
burglars and thieves into selling their ill-gotten proceeds to an
undercover F.B.I. agent posing as a fence. A prosecutor could not
authorize law enforcement agents to pose as children to fool pedophiles
using the Internet in order to sexually exploit minors.
The response of the Oregon bar to criticism of its interpretation
of its rule is that law enforcement agents are not bound by ethics
rules and can continue to conduct undercover operations without
attorney involvement. This reflects a completely unrealistic view of
contemporary law enforcement and is terrible public policy to boot.
Prosecutors conduct investigations because they have to. There is no
way to conduct a gang investigation, or an organized crime
investigation, or investigation of a large-scale drug operation,
effectively without the active involvement of prosecutors.
Moreover, this is how it should be. The value of attorneys' direct
involvement in investigations cannot be overestimated. Attorneys are
well-schooled in the law and can help ensure that investigations stay
within constitutional bounds. There are many areas of the law that are
highly complex and specialized. In these areas--civil and criminal
environmental law enforcement, money laundering, securities fraud,
cases arising out of acts of terrorism--federal attorneys are critical
because only they will understand the technical issues that are the
difference between a case that should be brought to trial and one that
does not meet statutory requirements. Attorneys must see and speak to
the witnesses in order to make informed decisions about proceeding with
a case. Attorneys are often in the best position to decide what the
next investigative steps should be.
Unfortunately, federal prosecutors in the Eighth Circuit where the
Department's contacts regulation has been invalidated--are reporting
that agents are seeking advice from prosecutors less frequently and are
simply conducting investigations on their own. Agents are concerned
that consulting with attorneys will limit the scope of the agents'
investigations. This development is bad for everyone.
The examples that I have given represent the problems that we know
about, but there is also much uncertainty about how particular state
rules will be applied to federal law enforcement attorneys, and how
vigorous state bars will be in using their authority under the section
to control the activities of these attorneys. I am sure that the
members of this subcommittee are familiar with the since-reversed
Singleton decision in which a panel of the Tenth Circuit held that
offering a plea to a reduced charge to a defendant in return for
truthful testimony violated federal criminal law. Many states have
rules prohibiting offering inducements to witnesses (one such state
rule was cited in the original Singleton decision). Since the Singleton
decision, more defense counsel are making motions to exclude testimony
from cooperating defendants on the basis of these rules. While most
state rules prohibit only inducements that are prohibited by law, the
Florida rule contains no such exception. Does this mean that any
inducement, such as moving the witness's family to safety pending the
trial, is prohibited? We simply do not know. The Eleventh Circuit
recently held that section 530B does not require suppression of
cooperating witness testimony, but took no position on whether the use
of such testimony violates the Florida rule. United States v. Lowery,
166 F.3d 1119 (11th Cir. 999). This opinion is likely to provide little
comfort to Department attorneys licensed in Florida.
section 530b is vague and will lead to much satellite litigation
Section 530B presents many problems beyond the direct impact of
specific rules. I will describe some of the great uncertainties the
section creates.
While the caption to section 530B refers to ethics rules, the text
of the section refers only to ``laws and rules * * * governing
attorneys.'' This language will permit defense counsel to argue
(incorrectly, we believe) for a form of reverse preemption--if a state
bar has a rule in a particular area, even if it conflicts with clear
federal law concerning, for example, wiretapping or consensual
monitoring, or with the uniform rules of procedure and evidence that
govern federal court proceedings, the state rule will prevail. We are
currently litigating against just such an argument: counsel for a state
bar argued in a recent case that ``the clear intent of [section 530B]
was to prevent the Justice Department lawyers from ignoring state
ethical standards on the grounds of conflict with federal law.''
Over the last 60 years, Congress has developed uniform rules of
procedure and evidence for the federal courts, and no state or state
bar should be able to override those. Nor should a state law that
prohibits wiretapping trump federal law expressly permitting Department
attorneys to authorize valid electronic surveillance. If this broad
interpretation of section 530B were to succeed, the effect on federal
law enforcement would be devastating. State rules concerning electronic
surveillance, subpoenas, and grand jury practice vary widely. Our
ability to use particular investigative techniques would vary from
state to state and would be severely limited in some. I want to
emphasize that the Department does not believe that this was Congress's
intention and that we will litigate vigorously against this
interpretation, but it is already clear that we will face such
arguments. See ABA/BNA Analysis and Perspective, vol. 14, no. 20, at p.
498 (Oct. 28, 1998) (noting that opposing lawyers are likely to argue
for a broad construction of section 530B).
The other area of serious concern is in determining what rules
apply to particular conduct. All attorneys face difficult questions
about what state bar rules apply to particular conduct. As an ABA
Committee explained a few years ago, ``the existing authority as to
choice of law in the area of ethics rules is unclear and
inconsistent.'' ABA Committee Report Explaining the 1993 Amendment to
Rule 8.5. Although the ABA has tried to improve this situation by
amending Model Rule 8.5 to make clear that attorneys must generally
comply only with the rules of the court before which they are
litigating a particular matter, most states have not adopted this rule.
This leaves all attorneys at risk that they may, in good faith, comply
with the wrong rule.
This problem is especially difficult for federal prosecutors, whose
practice necessarily crosses state lines and who often supervise
investigations that span a dozen or more states. By statute, the
Attorney General has authority to determine who will represent the
United States in court, and Department attorneys--particularly those at
Main Justice--travel across the country to represent the United States'
interest, most often in states where they are not members of the bar.
Federal prosecutors also must regularly react quickly to protect the
public and bring criminals to justice. Uncertainty about what bar rules
apply is thus particularly troubling.
To the extent that there is already confusion, section 530B makes
the situation far worse because of its vague directive that government
attorneys comply with rules in each state in which the attorney
``engages in that attorney's duties.'' This directive could be read to
require Department attorneys (unlike private attorneys) to comply with
rules in every state where they take a deposition or supervise an
investigation. Although we do not believe this interpretation is
correct, we anticipate that there will be significant satellite
litigation about what rules apply to particular conduct. This will
needlessly slow the enforcement of federal law and will deter
prosecutors, whose licenses may be on the line.
Let me give you a realistic example. A team of federal prosecutors
may oversee an investigation that has grand juries in three states and
investigators in ten states. We do not believe that the prosecutors
should have to comply with different rules in each state where an
investigator goes. Under current federal law, government attorneys
generally comply with the rules of the court where the case is being
litigated. Under section 530B, a cautious Department attorneys will
have to consider how the rules of multiple jurisdictions might be
applied to his or her conduct, with professional discipline as the
consequence of a mistaken analysis. If the attorneys on the team are
licensed in different states, each attorney may have to do a separate
analysis of the rules that apply, and different rules might apply to
each of them. Add supervising attorneys with different bar memberships,
and you can see how complicated it gets.
This sort of uncertainty does not result in more ethical conduct by
federal prosecutors. Rather, it will discourage prosecutors from early
and effective involvement in major criminal cases and will make
attorneys exceptionally timid about authorizing traditionally accepted
law enforcement techniques because they are concerned that their
licenses and careers may be jeopardized. Whether one believes that a
single nationwide set of ethics rules for practice in federal court is
the answer or that fifty sets of state bar rules for the practice in
each state is the answer, I think we all can agree that it should be
clear what rules apply to what conduct--something section 530B does not
do.
conclusion
I want to conclude with what I said at the outset. The Department
is not seeking to exempt itself from ethics rules or to strip state
bars of their authority. We firmly believe that federal prosecutors
should comply with the highest ethical standards, regardless of who
makes and enforces the rules. The federal courts and Congress through
its oversight functions insist on this. But we also believe that ethics
rules should be clear, predictable, and reasonably uniform--and also
that they should not unreasonably interfere with legitimate law
enforcement techniques.
Section 530B ensures that none of these things will exist for
federal prosecutors. For this reason, we strongly believe that section
530B must be modified prior to going into effect. We are actively
working to implement the provision, but we believe in the strongest
terms that it should not be permitted to go into effect as is. No issue
has galvanized Department attorneys more than this one because their
licenses are on the line. The Attorney General and I stand ready to
work with Congress to modify the provision to make certain that federal
prosecutors are governed by high ethical standards, but also that they
are able to do their jobs and effectively represent the interests of
the United States.
[The subcommittee stood in recess from 3:15 p.m. to 3:37
p.m.]
Senator Thurmond [presiding]. The subcommittee will come to
order.
Let's see if all the witnesses are here. On the second
panel, the first witness is John Smietanka. Is that the way you
pronounce it?
Mr. Smietanka. Yes, Mr. Chairman, John Smietanka.
Senator Thurmond. I did pretty good pronouncing that.
Mr. Smietanka. You did beautifully, Mr. Chairman. Could I
bring you back to my State?
Senator Thurmond. Where are you from?
Mr. Smietanka. I am from Michigan, Mr. Chairman.
Senator Thurmond. A graduate of John Marshall Law School,
is that right, in Chicago?
Mr. Smietanka. Yes, sir.
Senator Thurmond. Currently in private practice. He became
U.S. Attorney for the Western District of Michigan in 1981. Is
that right?
Mr. Smietanka. Yes, sir.
Senator Thurmond. In the Bush administration, Mr. Smietanka
served as Principal Associate Deputy Attorney General and
Assistant Special Counsel to Attorney General Bill Barr. He was
also President Bush's nominee to be a judge of the Sixth
Circuit Court of Appeals.
Our second witness is John R. Justice. It sounds like a
South Carolina name.
Mr. Justice. You are correct, sir. [Laughter.]
Senator Thurmond. Are you Solicitor of the sixth circuit?
Mr. Justice. The sixth circuit, Chester, Fairfield and
Lancaster Counties.
Senator Thurmond. Yes; we are glad to have you here. Maybe
you can help me to keep these others straight.
Mr. Justice. We will try.
Senator Thurmond. The very able Solicitor of the Sixth
Judicial Circuit in my home State of South Carolina, Mr.
Justice is a graduate of the University of South Carolina Law
School. He retired after 25 years of service in the South
Carolina Army National Guard with the rank of lieutenant
colonel. He was elected to the South Carolina House of
Representatives in 1970. Since 1978, he has served as Solicitor
for the Sixth Judicial Circuit of South Carolina. Mr. Justice
is also president of the National District Attorneys
Association. We are especially pleased to have him with us
today.
Mr. Justice. Thank you, Senator.
Senator Thurmond. That is a high honor.
Mr. Justice. Thank you, sir.
Senator Thurmond. The third witness is Richard Delonis. Is
that pronounced right, ``Delonis?''
Mr. Delonis. That is close enough.
Senator Thurmond. Close enough. Mr. Delonis is a graduate
of the University of Detroit Law School. He is an assistant
U.S. attorney in the Eastern District of Michigan, a position
he has held for almost 30 years. Is that correct?
Mr. Delonis. Yes, Senator.
Senator Thurmond. You have almost served long enough to
retire.
Mr. Delonis. Just about.
Senator Thurmond. He is currently president of the National
Association of Assistant United States Attorneys.
Next is Drew McKay, a graduate of American University's
Washington College of Law and a former assistant U.S. Attorney
for the District of Columbia. He is currently executive vice
president, chief operating officer and deputy general counsel
of Decision Strategies Fairfax International. He is
representing the American Corporate Counsel Association, as I
understand it.
Mr. McKay. Yes, Mr. Chairman.
Senator Thurmond. Our final witness is Prof. Geoffrey
Hazard, Jr. Did I pronounce that right?
Mr. Hazard. Yes, sir.
Senator Thurmond. He is a graduate of the Columbia
University Law School, has held teaching appointments at nine
different universities, and is currently a trustee professor of
law at the University of Pennsylvania. Since 1984, he has been
Director of the American Law Institute. Professor Hazard is a
widely recognized author and expert on the subject of legal
ethics.
I ask that each of you please limit your opening remarks to
no more than 5 minutes. You can make it shorter if you want to.
All of your written statements will be placed in the record;
everything you say will be in the record, without objection.
We will start with Mr. Smietanka and go down the line. Do
any of you have statements you want to make before we ask
questions?
PANEL CONSISTING OF JOHN SMIETANKA, FORMER PRINCIPAL ASSOCIATE
DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, GRAND
RAPIDS, MI; JOHN R. JUSTICE, PRESIDENT, NATIONAL DISTRICT
ATTORNEYS ASSOCIATION, CHESTER, SC; RICHARD L. DELONIS,
PRESIDENT, NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES
ATTORNEYS, DETROIT, MI; G. ANDREW McKAY, CHAIR, NATIONAL
LITIGATION COMMITTEE, AMERICAN CORPORATE COUNSEL ASSOCIATION,
WASHINGTON, DC; AND GEOFFREY C. HAZARD, JR., TRUSTEE PROFESSOR
OF LAW, UNIVERSITY OF PENNSYLVANIA, PHILADELPHIA, PA
STATEMENT OF JOHN SMIETANKA
Mr. Smietanka. Just briefly if I may, Mr. Chairman, the
point that I would like to make very clearly is I was not only
a U.S. attorney for 12 years, not only a prosecuting attorney
in my county in Michigan for 11 years, but during the time that
I have now been in private practice for the last 3 years, I
have been also a member of the ethics committee of my bar
association, and also serving as a hearing officer in the
voluntary disciplinary program we have with our bar
association--I should say mandatory disciplinary program. So I
hear cases of alleged abuses of attorneys' authority by
attorneys around the State.
Finally, from my perspective as a Principal Associate
Deputy Attorney General in the Bush administration, I would
like to just say that as I see this regulation of attorneys by
someone, we have to look at a basic premise and that is that
Federal authorities should regulate Federal attorneys enforcing
Federal laws in Federal courts.
This not to denigrate the States. This is not to say that
they don't do a wonderful job in their areas and have absolute
and constitutional rights to do it, but they don't have the
right--they shouldn't be dictating to the Federal Government
how Federal investigations, approved by Federal courts and the
Federal Congress, are handled.
I think that we got in to this mess--and we are in a mess--
which has resulted in McDade, which I think is bad legislation
and should not go into effect and should be repealed by
something which is, I think, must wiser. And I think that Hatch
bill which has been referred to by the Chair at the beginning
of this hearing is a very wise starting point to work from
because that is an integrated point of view from the Federal
level, a response to a very difficult problem which Senator
Biden talked about.
Senator Sessions, Senator DeWine, Senator Schumer and
yourself talked today about the difficult of exercising power
by Federal prosecutors, and we are paying a lot of attention to
that that we did not in the past. We tried in the Bush
administration to deal with this concept of disciplining and
directing Federal prosecutors to act within the law by starting
with the Thornburgh memorandum, which we believed at that time
basically stated Federal law.
It was followed by Attorney General Bill Barr's attempt
with his regulation dealing with contact with represented
persons, and that frankly was picked up by Attorney General
Reno with her regulation of contacts with represented
witnesses. Frankly, within the Department of Justice, there is
an organization which is frankly far better equipped at dealing
with the enforcement of rules than most, if not all, of the
State bars.
In my State today, there are 32,573 lawyers. There are
three counsel investigators in our bar grievance program. Three
attorneys are supervising and handling the complaints against
theoretically 32,000 people. Mr. Chairman, there are in the
Department of Justice something in the neighborhood of 8 or
10,000 lawyers. There are 18 lawyers supervising the
investigations or handling the investigations of the
discipline. There is a better vehicle existing right now in the
Department of Justice, with a better track record, than any of
the bar associations than I have seen operating in this
country, and I have seen several.
I would like to suggest that I do support the Hatch view
because it acknowledges the principle of one United States. It
acknowledges the principle that the Attorney General has the
authority to run her Department. It directs her to address
specific ethical problems. It reaffirms Congress' overall,
ultimate responsibility to act in an oversight capacity of the
discretion that it gives to the Attorney General. And, finally,
it brings in the judiciary in an effective way to assist the
Congress with their wisdom and their experience on any possible
other areas that need to be regulated.
I thank the Chair for its courtesy.
[The prepared statement of Mr. Smietanka follows:]
Prepared Statement of John Smietanka
the effect of state ethics rules on federal law enforcement
Mr. Chairman and members of the Subcommittee, thank you for your
invitation to testify today on the knotty problem of how to deal with
alleged abuses of power by federal government attorneys.
I am pleased to be on a panel with people of such diverse
backgrounds bringing different perspectives to the problem.
my background
Practice:
Admitted to practice before two state bars, Illinois and
Michigan, and the federal bars of Northern Illinois, Western
Michigan, the Sixth Circuit and the United States Supreme
Court.
After law school, private practice in my father's family law
firm, first formed in Chicago in 1894.
County Prosecution:
Trial and appellate Assistant Prosecuting Attorney, Berrien
County, Michigan, 4 years.
Nearly 8 years as Berrien County Prosecuting Attorney.
President of the Prosecuting Attorneys Association of
Michigan.
Federal Prosecution:
Appointed and confirmed as United States Attorney for the
Western District of Michigan in 1981, serving for over 12
years.
In 1990, I was asked by Deputy Attorney General William Barr
to come to Washington to be his Principal Associate. When he
became Attorney General I moved with him to the Attorney,
General's Office. In December 1992, I was appointed Special
Counsel to the Attorney General and Special United States
Attorney for the Northern District of Illinois to supervise the
prosecution of the roughly 60 cases called the ``El Rukns.''
\1\
---------------------------------------------------------------------------
\1\ This was because the presidentially-appointed United States
Attorney had had to recuse himself due to certain allegations against
members of his office concerning what may generically be called
``prosecutorial misconduct.''
Post-federal Government Service:
I left the federal government and entered private practice
in west Michigan on December 31, 1993.
Interspersed with my private practice were two unsuccessful
campaigns to be Michigan Attorney General (1994 and 1998).
Special Bar Activities: Ethics
As a member of the Michigan Bar, I have had special
responsibilities. Judicial Ethics Subcommittee of the Ethics
Committee of the State Bar. Our committee wrote opinions on
ethical matters for the state bench and bar.
I now sit on hearing panels for the Michigan Attorney
Discipline Board, the ``judicial'' office of the attorney
discipline process in our state.
Almost Judicial:
Nominated by President Bush to be Sixth Circuit Court of
Appeals Judge in 1992. (The Senate Judiciary Committee did not
hold a hearing for me among some 60 others, and my nomination
died at the end of that Congress.)
Thus I have observed the legal scene in Michigan and across the
United States from several perspectives: private practitioner, trial
and appellate prosecutor, federal and state chief prosecutor, member of
the Bush Administration's U.S. Department of Justice management team
and volunteer in the Michigan State Bar's ethical process.
From my perspective, the conflict this Committee is dealing with is
a recent bulge in the amoeba of the relationship between the three
branches of the federal government, the state legal systems and the
national and local media and the American public. To adequately examine
the entire matrix is to risk becoming lost in immense complexity. Each
aspect has been examined in scores of law review articles, cases, media
reports, legislation, regulation and seemingly endless pre-meetings,
meetings and post-meetings of members of all the interrelated
disciplines. The only topic getting more consistent attention with
equally less finality is the de rigeur ``Fair Trial, Free Press''
sessions which are part of so many seminars all over the country.
summary
Abuse is always a danger when we give power to a person. This is
the lesson of history and one of the dominant themes of the American
Revolution and founding of our current government. The real and
perceived abuses of the colonists by the government of George III and
his predecessors led to the Declaration of Independence and the
Revolutionary War. The practical impossibility of the survival of the
newly independent states under the Articles of Confederation, with
virtually total decentralization of power to the States, drew us
inexorably to the Constitutional Convention of 1787. There the delicate
balances between liberty and coordination, between the people and the
state and federal governments, between law making, law enforcing and
law-application were debated and struck. But at the heart of the matter
was the need for the use of power for good coupled with checking the
ills coming from its abuse.
Our national constitutional history since then has been a playing
out of the drama in a virtual infinity of situations.
Today you are deliberating on how to regulate power given to
governmental lawyers.
We need to parse the question into its components. To deal with the
future we must first understand the past and the present.
history
The exercise of the power and authority of federal prosecutors did
not reach the point of causing national controversy until relatively
recently.
The systematic pursuit of abuse of governmental power began to
become a national question with a series of national events: Watergate,
ABSCAM, the Mafia, the War on Drugs and the scandals of big business or
big labor gone amok.
In Watergate, it was the Congress and the parallel work of the
Special Counsels to the Attorney General, Cox and Jaworski, who broke
through the screen of payoffs, obstruction of justice, perjury covering
terminal abuse of presidential power. Many from those days are
prominent today, instructing us on how to properly deal with the
exercise of power.
Perhaps we can flippantly blame the movie ``The Sting'' for
popularizing the tool of the undercover investigation, or Perry Mason's
solving of crimes within the 30-60 minute windows of prime time.
However the very graphic memories of television shots of drug dealers,
burglars, and crooked politicians committing their crimes has a potent
punch. The audience is, from the safety of its living room, brought
into the arena to see crime in action. And juries often seem to expect,
in this post-``Petrocelli'' world, that prosecutors should be able to
present videotaped replays of the crime at trial.
``ABSCAM,'' the most prominent of the early ``stings'' by federal
government, introduced the sad images of congressmen taking cash for
favors broadcast on the nightly news. Political corruption cases are
always some of the most difficult to prove. The basic nature of the
political process and the emotional trust we place in the often
attractive people we elect to office are major factors. Even more so is
the care the courts take with such cases to make sure there really were
crimes, and not just one political faction commandeering the criminal
justice process for personal or partisan advantage.
The Mafia, with its intensely secretive rules and often-brutal
elimination of testifying defectors or retaliation against those who
crossed it, made the captured lawyer and the corrupted legal system a
household concept. There we saw lawyers, judges, police and the system
itself seem co-opted by ``the mob.'' Federal prosecutors, in the
forefront or breaking its power, sat in silent rage at, to cite one
example, defense lawyers passing from protectors of, the constitutional
rights of their clients to facilitators of their crimes.
The ``War on Drugs,'' brought on by what the public believed (and
still does, for the most part) was the ``Scourge of Drug Abuse.'' A
public outcry moved the Congress, the courts and the White House to
respond with tough laws, more enforcement resources and demands for
results. Many prosecutors and I have had the difficult job of taking to
task lawyers and judges (among many other types of people) for their
criminal immersion in the drug trade, In the Western District of
Michigan, one attorney took paper bags of money from drug clients and
temporarily stored them in the ceiling above his office desk. Then he
and his secretaries, during their lunch hour, went to 20 different
banks, turning the money into cashier's checks for his drug clients.
This case, and the hundreds of other like situations around the
country, tended to smudge with suspicion other attorneys representing
big-time dealers under investigation. Unfortunately, the immense pool
of drug cash coupled with the tightening of the legitimate market for
attorneys provided great temptation to struggling practitioners around
the country.
Corporate and union investigations brought with them the difficult
problem of the entity under investigation providing umbrella
representation for all members of the body. Thus corporate counsel
would routinely advise federal prosecutors that they now represented
all employees, directors or in the case of, say, unions, all members,
and contact with any without permission from the core counsel was
prohibited. This found parallels later in all manner of investigations
in the ``joint defense agreements,'' whereby many putative
``witnesses,'' ``subjects'' and ``targets'' would join together like
musk oxen to show common horns to the government,
Several circumstances exacerbated the tension between prosecutors
and defense counsel. In 1984, prosecutors began going after the
proceeds of drug dealing wherever they could find them. This included
two areas that particularly disturbed the private bar, honest and
dishonest alike: tracing drug money to and through attorneys' bank
accounts and seizing money paid to defense counsel for their services.
In one case the federal prosecutors were nosing into facially private
business transactions of suspected or charged drug dealers; in the
other, the fees being used to pay for attorneys' services were being
frozen and seized.
the controversy
One can track through the above historical references the main
substantive areas of today's allegations of misconduct by the private
bar against federal prosecutors.
1. ``Federal prosecutors bypass the attorney-client
relationship to have private contacts with the represented
party.''
A. Take the case of the member of an organized criminal
venture who wants to cooperate with the government, but has an
attorney not of his choosing publicly representing him. The
dilemma: if he tells that attorney he wants to ``cooperate'' or
plea bargain with the government, he risks injury to his family
or himself.
B. Or there is the related question of a federal
investigative agency (supervised or working closely with an
Assistant United States Attorney) running ``sting'' operations
where the undercover agent or informant talked to, or was in
the presence of, a represented person.
C. Here, too, the issue of multiple, or ``umbrella''
representations provides tension, i.e., how can one attorney
provide proper counsel for both the target corporation (or
principal officers) and the potential witnesses against them at
the same time.
2. ``Federal prosecutors subpoena the attorney of a person to
testify about the client.''
A. A rather rarely used investigative strategy might be to
seek from the attorney information not legally within the ambit
of the privilege, e.g., the amount of fees charged by the
attorney for a representation, perhaps the final step in
tracing the proceeds of a drug distribution business.
B. Related to this issue is the above-noted sensitive area of
forfeiture (under United States v. Monsanto, 491 U.S. 600
[1989]) of attorney fees traceable to drug proceeds.
3. ``Under the Sentencing Guidelines, the prosecutors are
really running the system through their charging power and
their sentence recommendations.''
A. The volume, if not the strength, of the argument of
defense counsel is augmented by the general dissatisfaction
with these guidelines, for different reasons by both the
Circuit and District Courts.
i. The defense bar disliked the additional sword in the hand
of their adversaries;
ii. the District Court judges were unhappy with the
restriction of their freedom to impose what they felt was an
appropriate sentence; and
iii. The Circuit Court judges disliked the volume of appeals
on the rather uninteresting interpretational aspects of the
guidelines.
B. Associated with these problems were the quasi-guerrilla
warfare some of these judges were waging by not just publicly
voicing opposition, but refusing to follow, and encouraging
others not to follow, the guidelines in their courts.\2\
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\2\ In the early 1990's, I personally participated in a training
session for new federal judges, wherein several of the judges on the
panel advised their audience to ``wait until tomorrow's session and
we'll tell you how to avoid applying them.'' When I challenged this,
the defense attorney on the panel told the group to ignore what I was
saying and the guidelines, and conduct ``guerrilla warfare on the
(guidelines).''
4. ``The overwhelming authority against us in the courts,
together with the vast new resources given to federal
prosecutors and investigators, has tipped the level playing
---------------------------------------------------------------------------
field against us.''
A. When the defense bar saw the courts refusing to accept
their arguments on traditional 4th, 5th, 6th, 8th ana 14th
Amendment grounds, in the context of the increasing presence of
federal prosecutorial power, they resorted to attacking the
behavior of their opponents as unethical, first in the federal
courts and, failing there for the most part, in the ethics
boards of the local bars.
B. The bar ethical rules had, until the 1980's, not been the
forum conveniens for this battle. But then with the federal
legislature, courts and executive branch seen as ganging up on
them, they became the places to go. Composed in great measure
of private practitioners, and with criminal law not being the
most socially favored part of the practice,\3\ still there was
a visceral resonance to the criminal defense bar's complaints
against Administrations (Reagan and Bush) and their Justice
Department that were seen as opposed to lawyers generally.
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\3\ From being at a way station to private practice when I began to
practice in the 1970's to being a part of a professionally appropriate
career path now, prosecutors still deal with some of the most
distasteful aspects of human life. And for the defense bar, advocating
for fair treatment of the perpetrators of murders, rapes, frauds and
drug dealing, puts them in even closer proximity to the seamier side of
life. Now that I am back in private practice (which is predominantly
civil), I still hear the old refrain ``How can you defend a guilty
person?'' Further my civil clients are a bit visibly put off by the
notion that their attorney is representing a man serving time (I
believe unjustly) for murder.
The attacks on the personal ethics of the individual prosecutor or
his office were not limited to federal court. Anecdotally I can refer
again to my own experience as a local prosecutor in the 70's. Towards
the very end of the decade and into the 80's the personal attack
formula had been adopted from the ``gonzo lawyers'' as they were called
in Chicago by some of the more regular members of the criminal defense
bar.
resolution attempts
What we faced, thus, in the late 1980's was a trend that didn't
bode 4 well for the future. The case of United States v. Hammad,\4\
focused the attention of the Department of Justice. Attorney General
Richard Thornburgh issued what is now known as the ``Thornburgh Memo''
in response, not only to Hammad, but to the entire trend of using
ethics proceedings as one of the main arrows in the defense counsel's
quiver. As is clear from the reading of the Memo itself, as well as
Attorney General Thornburgh's rebuttal to the ensuing criticism,\5\
this was not seen as creating something out of whole cloth, but rather
as fitting in with a longer tradition of direction to the Department of
Justice lawyers from their leader.
---------------------------------------------------------------------------
\4\ 846 F2d 854 (2nd Cir. 1988), modified, 858 F2d 834 (2nd Cir.
1988), aff'd, 902 F2d 1062 (2nd Cir), cert. denied, 498 U.S. 871
(1990).
\5\ See Richard Thornburgh, Ethics and the Attorney General: The
Attorney General Responds, 74 Judicature 290 (1991).
---------------------------------------------------------------------------
Taken in the context of a progressive deterioration of
relationships between the federal (and state) prosecutors and their
defense counterparts, the Memo's position was seen by one side as
welcome leadership and the other as ultra vires arrogance. Rather than
solve the problem, the Memo simply aggravated and gave to the criminal
defense bar a torch to heat up members of the bar not till then engaged
in the debate.
Meetings were demanded and held between various parts of the
criminal defense bar and components of the Justice Department. In one
in 1991, Deputy Attorney General Barr, Jack Curtin, President of the
American Bar Association, the Presidents of the National District
Attorneys Association and National Association of Attorneys General, as
well as some of the associates of each, met at the Department of
Justice. A discussion of a wide range of issues between the government
lawyers (local, state and federal) and the ABA resulted in the creation
of a ``reconciliation committee'' with members of each organization
trying to resolve long-standing and often bitter differences among
them, including some of the ``ethics'' issues. That committee submitted
a report after over a year of meetings that may or may not have
actually caused change for the better.\6\ In addition, in 1991,
meetings of a different kind were begun between the Department and the
National Association of Criminal Defense Lawyers, to attempt to build
bridges on an individual rather than institutional level between these
two organizations.\7\
---------------------------------------------------------------------------
\7\ I was also a participant in those discussions.
\6\ I was a member of that committee, but left the Department some
months before the final report was issued.
---------------------------------------------------------------------------
As a final attempt to resolve the ambiguity of the various issues
discussed above and more, Attorney General Barr in 1992 promulgated for
comment a proposed regulation. While that proposal was later withdrawn
by Attorney General Reno, another was prepared and promulgated in its
place, founded on the same assumed authority to regulate the behavior
of her employees that Barr's was. With some modifications after months
of extensive public commentary, the Reno Rule went into effect in late
1994.
For the next few years, the matter was played out in the law review
articles, courts and media.
mcdade and the future
In 1998, the so-called Citizens' Protections Act (till passage
colloquially known as ``the McDade Bill'') was passed as a hider to an
Omnibus Consolidated and Emergency Supplemental Appropriations for
Fiscal 1999. It mandates that attorneys for the government ``* * *
shall be subject to State laws and rules, and local Federal court
rules, governing attorneys in each State where such attorney engages in
that attorney's duties, to the same extent as other attorneys in that
State.''
While short and simple, the Act delivers far more punch.
Effectively it expands the authority of the bars of the various states
to regulate behavior not only in their own courts, but in federal
courts as well. Simply put, had this law been in effect in 1961, the
bar grievance authorities in the States of Mississippi, Alabama and
Georgia would have had the power to punish under whatever ``ethical''
rules it had on the books by reprimand, suspension or revocation of the
privilege of practicing law the federal attorneys who sought in federal
court, either district or in the Fifth Circuit, to enforce the federal
civil rights of the African-Americans in those states.
My view is that this statute should be immediately dealt with,
either by repeal or amendment, to more properly reflect a true
understanding of constitutional federalism. Both on the levels of
proper balance between the state and federal governments and of the
substance of the concerns about federal prosecutorial behavior, I would
further suggest that some version of the Hatch Bill, S. 250, be
adopted.
Enough law review articles, media discussion and court rulings and
dicta have been disseminated to drown this issue in a maelstrom of
words. I believe that stripped of its arcana, it may be simply stated:
Federal authorities should regulate the behavior of federal
attorneys, enforcing federal criminal law in federal courts.
This is, in other words, the Supremacy clause argument.
To say that the ultimate decision as to what norms are to be
adopted in the federal executive and judicial branches, and who are to
be the enforcers is one for the federal government is not arrogance, it
is the constitutional framework. This is not to say there cannot be
criticism or input by any other third parties, but rather the rules
should be created and enforced by the constitutional or statutory
officers in charge of either the legislative, executive or judicial
institutions they work within.
That being said as a general rule, I personally favor the balance
struck between the federal govermental branches by the S. 250. It
recognizes both the oversight power of the Congress, the wisdom and
experience of the federal judiciary and the primary supervisory role of
the Attorney General. It identifies the questioned behavior most
apparent today (S. 250, see. 2) and tasks the Attorney General to
fashion rules to cover them. It leaves open to another day, after
consultations with the entire justice system of the United States,
federal, state and local, moderated by a federal judicial commission,
the proposing of other standards.\8\
---------------------------------------------------------------------------
\8\ I have some trouble, from a constitutional separation of powers
standpoint, with the Commission's power to review, and responsibility
to report on, the work of the Justice Department's Office of
Professional Responsibility. However, from a pragmatic point of view, I
cannot at this time come up with a better entity as a substitute.
---------------------------------------------------------------------------
The alternatives are as I see them bleak.
Like it or not, the role of a prosecutor, federal, state or local,
is different qualitatively from that of the non-prosecuting lawyer.
This difference is based on both the powers vested in the prosecutor (a
member of the Executive Branch charged with enforcing law), and the
charge given (to do justice, regardless of the wishes of any ``client''
other than the constitution, laws and treaties of the United States).
The private attorney, or probably even the federal civil attorney, is
charged with representing the best interests of his client, regardless
of what he may think the ultimate Platonic ideal of justice would
require in the situation. Thus, when it comes to the enforcement of
law, the prosecutor cannot be dealt with in a cookie cutter manner as
just another attorney.
And the rules should not come from the fiat of associations that
virtually are unrepresentative of prosecutors, such as the American Bar
Association and most, if not all, the state bar associations. The
percentage of prosecutors participating in the ABA at any significant
level is minuscule. Time, money and, to some unfortunate extent, a
cultural chasm keep them from meaningful participation.
Thus, the specific rules that deal with the most uniquely
prosecutorial and federal issues are not best designed, in my view, by
either the state or American Bar Associations.
And, while the tradition of delegating review of basic
qualifications and enforcement of basic ethical rules to the states'
courts may be long, it still is a delegation of federal authority not
an inherent constitutional power. Query: Would the federal judiciary
blithely accept a sitting district judge being suspended from practice
by a state court for unethical behavior? Or would they demand a federal
solution?
S. 250 provides the basis for a process, at once open and
integrated, leading us out of the labyrinth within which we find
ourselves. I support looking closely at it, but in any event, strongly
urge the repeal of the current approach of the so-called Citizens'
Protections Act.
Senator Thurmond. Before we go to questions, does anybody
else have a brief statement to make?
STATEMENT OF JOHN R. JUSTICE
Mr. Justice. I do, Mr. Chairman. Mr. Chairman, you have
been so kind to introduce me, so I can cut out all the self-
introduction. I would substitute for it this, that only a South
Carolinian could say I am 55 years old, my wife is a couple of
years younger, my oldest daughter is 27, my middle daughter is
a junior at Carolina, and we all have one precious asset in
common. We all have a letter from Senator Strom Thurmond
congratulating us for finishing high school.
Senator Thurmond. Well, you have a fine family. [Laughter.]
Mr. Justice. And in 3 more years, I fully expect my
youngest child to have such a letter, Senator.
Senator Thurmond. Wonderful.
Mr. Justice. On behalf of the country's prosecutors, as
president of the NDAA, I appreciate this opportunity to appear
in regard to this inappropriately titled Citizens Protection
Act.
At the onset, let me make it clear that neither I nor any
of my colleagues excuse improper or illegal acts by prosecutors
at either the State or the Federal level. We condemn as much as
any other citizen those who cannot properly employ the awesome
responsibility. I am here to emphasize, however, that the
Citizens Protection Act, passed through a previous Congress, is
not the manner by which to enforce this exercise of power.
In 1996 testimony before the House Judiciary Committee on
relationships between Federal and local law enforcement, I
stated that the strength of the Federal system of criminal
justice are those serious cases that necessitate investigations
crossing State lines. Federal law enforcement can greatly
expedite the closing of a case, bringing the guilty to justice.
Congress has recognized this through a number of enactments,
particularly the High-Intensity Drug Trafficking Area Act which
brings partnerships between State and local government.
We have two basic concerns with the Citizens Protection
Act, in that it, number one, we feel, will undermine the
jurisdiction of State prosecutions. The proper role for Federal
law enforcement is to investigate and prosecute those cases
that are truly multi-State or international in nature. This is
what the Constitution envisioned when separating State and
Federal authority, and what the Congress has seen fit to do
through its support of regional cooperative law enforcement
efforts.
But the Citizens Protection Act in its simplest terms
requires a Federal prosecutor to adhere to the ethical and
procedural and substantive rules of both the States in which
they are licensed and the State or States in which they
practice. This presents an impossible ethical choice for the
Federal prosecutor. They either follow the ethics of the State
in which they work or the State in which they are licensed. And
if these two States differ, they are in Hobson's choice and
there is no way they can make a correct choice. No matter what
they choose, the result is anything except a boon for
criminals, and compounds the Federal investigation that
involves several States at the same time. Then you are even in
a more difficult place.
We view the Citizens Protection Act as undermining the very
strength that the Federal system is made to advance--the
ability to support local efforts by providing a multi-State
capability. In turn, our concern goes to what new role the
Federal system will assume to protect itself from an impossible
ethical dilemma. And the natural result there would be to adopt
cases strictly within a State, cases that should be the State's
responsibility, or, in other words, coming into my counties and
taking my cases that should be in State court instead of
Federal court. It is an unacceptable duplication of effort and
a waste of assets. More importantly, it gives near impunity to
criminals who work in multiple States. Our fight to reduce
crime and to reduce the number of victims has come too far to
be hobbled by an ill-considered effort that does nothing but
prove solace to criminals.
Our second basis of opposition I will just briefly say was
not in the final version of McDade last year, although I
understand it is in the new legislation in the House this year.
It would virtually end the practice or cross-designation of
local prosecutors into the Federal system to have joint task
force prosecutorial operations. Under McDade, in its original,
pure form, that would be a matter of the past. I would suggest
that more appropriate means of correcting ill-conceived actions
by Federal prosecutors are found through the Department of
Justice's Office of Professional Responsibility.
I thank you for the opportunity to be here.
Senator Thurmond. Thank you.
[The prepared statement of Mr. Justice follows:]
Prepared Statement of John R. Justice
On behalf of this country's local prosecutors, I wish to thank you
for this opportunity to voice our concerns about the inappropriately
titled ``Citizens Protection Act'' and its adverse consequences for law
enforcement.
I am John Justice, Circuit Solicitor (state prosecutor) of the
Sixth Circuit of South Carolina. A jurisdiction of just over 100,000
people living in small towns and rural areas over a three county area.
My circuit is located on the border with North Carolina and is between
Charlotte, North Carolina, and Columbia, South Carolina.
I have been honored to serve in my current office for 21 years,
having been elected to office 6 times. I still actively try cases as
well as supervise a staff that includes five assistant solicitors.
Annually, my office handles more than 3,000 felony cases.
I have been a member of the National District Attorneys Association
for 20 years and am proud to be serving the prosecutors of America as
president of that organization. I am here today, to present you with
the views of that 7000 member organization.
At the onset, let me make it clear that neither I, or any of my
colleagues, excuse improper or illegal acts by prosecutors at either
the state or federal level. Our responsibilities to our citizens are
perhaps best articulated by the Supreme Court in Young v. U.S. ex rel.
Vuitton (107 S. CT. 2141) when it said:
Between the private life of a citizen and the public glare of
criminal accusation stands the prosecutor. That state official
has the power to employ the full machinery of the state in
scrutinizing any given individual. * * * For this reason, we
must have assurance that those who will wield this power will
be guided solely by their sense of public responsibility for
the attainment of justice.
We condemn, as much as any other citizen those who cannot properly
employ this awesome responsibility. I am here to emphasize, however,
that the ``Citizens Protection Act,'' passed during the previous
congress, is not the manner by which to enforce this exercise of power.
In 1996 I testified before the House Judiciary Committee on the
relationships between federal and local law enforcement. At that time I
stated that the strength of the federal system of criminal justice are
those serious cases that necessitate investigations that cross state
lines. Federal law enforcement can greatly expedite the closing of a
case and bringing the guilty to justice.
The Congress has recognized this strength through the inception of
the High Intensity Drug Trafficking Area (HIDTA) which unites federal,
state and local law enforcement on a regional basis to stop drug
trafficking. A similar scheme was established for stopping money
laundering and pending juvenile justice legislation looks at
establishing a similar concept for youth gangs that operate on a
regional basis.
In it's recently released report on ``Federalization of Criminal
Law'' the ABA cautions against continuing the trend towards
substituting the federal system of criminal justice for the traditional
realm of local authority. It recognized that there is a role for
federal law enforcement to play but as an extension rather then a
replacement for state systems. The National District Attorneys
Association participated in the ABA task force and has long opposed the
unwarranted federalization of crime and the intrusion by federal law
enforcement into traditionally local issues. Our position on
unwarranted federalization has been premised upon the belief that there
is more than enough crime for the combined efforts of federal, state
and local law enforcement authorities to combat.
When the ``Citizens Protection Act'' was introduced in the House
the consequences for local prosecutors would have been truly
devastating.
Many hundreds of local prosecutors have been, and continue to be,
cross designated as Special Assistant United States Attorneys. As such
they work closely with joint task forces combating drug trafficking,
domestic terrorism, money laundering, and other crimes that involve
cross-jurisdictional efforts and interests. This designation as Special
Assistant U.S. Attorney serves to foster a team approach to fighting
crime, permits federal and local prosecutors to share information
within their separate rules of criminal procedure and serves as a
valuable source of experienced assistance to US Attorney Offices.
The ``Citizens Protection Act,'' as originally envisioned would
have cast a serious cloud on the continuation of this shared
responsibility. The broad definition given to ``attorney for the
government'' would have included a local prosecutor working under cross
designation as a Special Assistant US Attorney. As such, he or she
would then have been subject to disciplinary action by the ``Misconduct
Review Board'' without benefit of any of the protections or financial
support afforded employees of the federal government. While we
recognized that many of the articulated penalties were not applicable,
mounting a defense in Washington would be difficult at best. Yet the
local prosecutor would not dare risk the consequences of not pursuing
vindication because of the possible implications on their position
within their own community.
Local prosecutors already face disciplinary proceedings by our
state licensing authority, as city or county employees, under the
inherent authority of the judges we appear before, and under the
federal civil rights statutes that permit both civil and criminal
sanctions against us as individuals. To add another disciplinary
proceeding against local prosecutors would have removed any incentive
to continue to cross designate and place ourselves in additional
jeopardy.
The issue of access to state and local records by the ``Misconduct
Review Board'' was an even more serious problem that would jeopardize
joint work. The ``Citizens Protection Act'' would have overridden state
privacy or privilege rules or legislation with the broad subpoena power
given to the Board. Moreover, there was no requirement to wait until
the criminal trials or investigations were completed.
The scenario could have developed where a local prosecutor, acting
as a special assistant, becomes involved in a Misconduct Review Board
investigation based on allegations by someone under investigation.
Because of the extremely broad subpoena powers of the Board the subject
of the criminal investigation could get any and all state records
pertaining to any matter that was part of the joint effort or pertained
to the background of the local prosecutor, including local grand jury
records. Since their hearings would be open to the public, and could
occur before the investigation, much less the trial was done, the
state's ability to successfully investigate and prosecute the case
would be placed at risk.
At a time when every effort is being made to maximize the
efficiency and effectiveness of our efforts to fight crime it would
have been extremely counterproductive for the Congress to have built
this barrier to cooperative efforts between local and federal
prosecutors. If the ``Citizens Protection Act'' had become law this
Association was prepared, to protect local criminal cases, to recommend
that local prosecutors and police agencies consider withdrawing from
all task forces and criminal investigations that include federal
agencies.
Many of you in the Congress saw the folly in this Act and were able
to have removed those potions that would have opened our investigative
and trial efforts through a federal process that was unrelated to fact
or merit.
Our concern with the ``Citizens Protection Act'' is now based upon
two premise's. First, that the proper role for federal law enforcement
is to investigate and prosecute those cases that are truly multi-state
or international in nature. This is what the Constitution envisioned
when separating state and federal authority and what the Congress has
seen fitting through it's support for regional cooperative law
enforcement efforts.
But the ``Citizens Protection Act,'' in it's simplest terms,
requires a federal prosecutor to adhere to the ethical and, as
appropriate, procedural and substantive rules of both the state in
which they are licensed and the state, or states, in which they
practice. This presents an almost impossible ethical choice for the
federal prosecutor.
If they follow the state rules and law of the jurisdiction in which
they work an ethical complaint can be lodged in their licensing state
if the rules there differ from the state of practice. Their licensing
state can discipline the prosecutor and the defense that they were
adhering to the rules of the state in which they practice will not
serve as a defense.
Conversely, if the federal prosecutor follows the rules of their
licensing state then the case in the jurisdiction in which they
practice can be dismissed and sanctions taken against the federal
prosecutor by the court before whom they are trying their case.
Neither result is anything except a boon for criminals and this
Hobbesian choice is compounded if the federal investigation involves
several states at the same time. Differing rules of practice and
procedure will be impossible to untangle without running afoul of one
set of rules or another.
Thus we view the ``Citizens Protection Act'' as undermining the
very strength that the federal system is to advance--the ability to
support local efforts by providing a multi-state capability.
In turn, our concern goes to what ``new'' role the federal system
will assume to protect itself from an impossible ethical dilemma.
Faced by the daunting task of weaving a safe course between various
state rules, at the risk of career ruining missteps, the safe course
for the federal prosecutor is to retreat from multi- state cases and
stick close to home. Essentially doing those types of cases that
involve the laws of a single state--in short doing my cases--and
ignoring the traditional role of federal law enforcement.
This is unacceptable as a duplication of effort and waste of
assets. More importantly, it gives near impunity to criminals who work
in multiple states. Our fight to reduce crime, to end reduce the
numbers of people who become victims, has come too far to be hobbled by
an ill considered effort that does nothing but provide solace to
criminals.
Our second basis for opposing the so-called ``Protection Act'' is
its very real potential to chill state and local participation in task
force efforts. Now, our assistant prosecutors, cross-designated as
special assistant U.S. Attorneys, work as full members of a joint
investigations. If the ``Protection Act'' is implemented local
prosecutors will need to examine the risks involved with continued
participation. If a task force effort results in a federal trial in one
of the participating venues what risk will there be for an local
prosecutor from another state? Can they continue to be a team members
of the laws of the second state are in conflict with those of their
home jurisdiction. There is no federal protection thus do they limit
participation and thereby limit liability or do they fully participate
and exposure to personal and professional liability. Each case will
have to be assessed not only on the merits of the situation but on the
jeopardy that inures to the prosecutor.
I believe, in short, that far from being an ethics rule this is
nothing less then an attempt to ``divide and conquer.'' If the joint
state-federal task forces are split up or rendered less effective then
there is no protection for our citizens,
I would suggest that more appropriate means of correcting ill
conceived actions by federal prosecutors are found through the
Department of Justice's Office of Professional Responsibility.
On behalf of the prosecutors of this nation, both local and
federal, I thank you, and this Subcommittee, for this opportunity to
testify.
Senator Thurmond. Does anybody else have anything to say?
STATEMENT OF RICHARD L. DELONIS
Mr. Delonis. I do, Mr. Chairman. First of all, I would like
to thank the Chair and the subcommittee for inviting me to
appear on behalf of the country's frontline Federal
prosecutors. I serve, and I am honored to serve as the
President of the National Association of Assistant United
States Attorneys.
The first point I would like to make is that some of our
critics have said that we Federal prosecutors feel that we are
above the law, and I want to just say forthrightly that that is
not true, that we as a group feel that we are among the most
dedicated servants of the law and we do not oppose regulation.
In fact, we invite it. We ask to be regulated. We want to be
ethical, but we do ask, do it, please, in a way that does not
interfere with the way we discharge our responsibilities.
I would note that we as Federal prosecutors are already
subject to a great deal of regulation from a great number of
different perspectives--institutions, procedures, and the like
that keep prosecutors on the straight and narrow. Indeed, one
of my colleagues has done a chart which is here in the hearing
room that pictorially displays all the various mechanisms and
procedures and institutions that impact on a Federal prosecutor
and assure ethical and proper conduct.
Now, beyond that, I would like to do something nobody else
has alluded to here so far. I don't want to repeat what other
panelists have said, but I thought I would put things in the
context of a particular story, and the story I chose is
something that happened in my own backyard, so to speak, in
Detroit, and I talked to some colleagues in my office who
handled the case.
Back in May 1992, it was a nice, warm summery day. There
was a little girl named Loreal Roper, a toddler, age 3, a
typical 3-year-old, active, at home standing in the doorway of
the house looking out on the porch. There on the porch was her
uncle and two male visitors, one being a guy named Alfred
Austin.
As little Loreal stood there in the doorway looking out, a
man approached the house. When he got to within 10 feet of the
men, he pulled a gun and shot the three men dead, but he wasn't
done. This man turned to Loreal, the 3-year-old toddler
standing there in the doorway, pointed the gun at her and shot
her in the face, killing her, and walked away.
That gunman was part of an organization that was known as
Best Friends, a drug-dealing, murderous group of people
operating in the city of Detroit and elsewhere that in their
term of activity was responsible for upwards of 50, perhaps as
many as 80 drug-related murders. The investigation of Best
Friends was underway when one day a mother who had two sons who
were defendants in criminal cases in the Federal court, as she
was also a defendant--she was charged with laundering drug
money--she came into the U.S. attorney's office without her
lawyer and came to one of our prosecutors. And her message was
this: I have a son who is one of the defendants. He wants to
cooperate, but he is afraid of his lawyer; he doesn't trust
him.
Now, the Michigan rules of discipline would not allow us,
if we followed those and if those were controlling, to talk to
her or to her son. But Federal policy and the rules of the
Justice Department allowed us to do that, and one of my
colleagues went to visit the son and talked to him and asked,
is it true that you want to cooperate and that you don't trust
your lawyer? He said that it was, and he was taken before the
court and got an appointed counsel.
Then he offered the fact that his brother, who was also a
defendant, had the same reservations about his lawyer. We
talked to that brother, ascertained that was true, got him a
lawyer. These two brothers cooperated, and in the end more than
50 murderous thugs dealing drugs were indicted, prosecuted and
convicted. And the man who murdered Loreal Roper sits today in
a penitentiary, where he will sit for the rest of his life. I
would say that that might not have happened had the Michigan
rules of ethics been in force and controlled Federal law
enforcement in that case.
Thank you.
Senator Thurmond. Thank you very much.
[The prepared statement of Mr. Delonis follows:]
Prepared Statement of Richard L. Delonis
Mr. Chairman, Honorable Members of the Subcommittee on Criminal
Justice Oversight, Good Afternoon. My name is Richard Delonis, and I
have been deeply honored by your invitation to testify at this hearing.
I appear before you today in my capacity as President of the National
Association of Assistant United States Attorneys, a professional
association formed approximately six years ago for the purpose of
representing the interests of this nation's federal prosecutors. My
colleagues share in my appreciation of being afforded an opportunity to
speak to you today regarding a topic that is of paramount interest to
Assistant United States Attorneys.
We are the government's front-line litigators, those whose duty it
is to investigate and vigorously prosecute the criminals who prey upon
American society and the American people. I will endeavor to present to
you the perspective of the dedicated men and women who daily walk into
court, often confronting dangerous criminals ``eyeball-to-eyeball''
and, in their presence, asking juries to convict them and judges to
sentence them.
I am employed by the Department of Justice, serving as an Assistant
United States Attorney for the Eastern District of Michigan, at
Detroit, Michigan. In November, I will have held that position for
thirty years. I am the senior most attorney in my district. My current
assignment entails the prosecution of the majority of my Office's
criminal tax cases, as well as any special tasks that I may be
delegated. I report directly to the Chief Assistant United States
Attorney. Prior to my current assignment, I served in my Office's
Organized Crime Strike Force for a period of six years.
I am here to address the issue of ``The Effect of State Ethics
Rules on Federal Law Enforcement'' and, more particularly, speak to you
in support of S. 250, The Federal Prosecutor Ethics Act. Let me begin
by stating that, contrary to the ``spin'' being placed on this issue by
some members of the bar, federal prosecutors are not opposed to being
regulated. We take great pride in our integrity, and we are fervent in
our dedication to ethical principles. We do not view ourselves as being
above the law, rather, we view ourselves as being among its most
dedicated servants. Indeed, we embrace the words of Mr. Justice
Sutherland in Berger v. United States, 295 U.S. 88 (1935), where he
wrote that the United States Attorney is ``the representative not of an
ordinary party to a controversy, but of a sovereignty * * * whose
interest, therefore, in a criminal prosecution is * * * that justice
shall be done. * * * It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.''
The words of Justice Sutherland set forth the parameters of ethical
conduct for Assistant United States Attorneys. My colleagues and I
regard his depiction of our office as an ethical beacon for us to
follow. I personally keep a framed copy of Justice Sutherland's remarks
both in my office and in my study at home. I am attaching a copy of the
full quotation to my written remarks.
Assistant United States Attorneys favor the imposition of ethical
principles upon lawyers, including themselves. But we believe that this
must be done in a manner which does not conflict with existent federal
law and does not alter the established and accepted practices and
procedures in the federal courts. Ethical proscriptions must be
consistent with the performance of our sworn duty, and must not erect
barriers to the effective discharge of our responsibilities.
Of the vast body of lawyers admitted to the bar in the fifty
states, by far the greatest percentage of their number practice their
profession largely in the state courts. Federal prosecutors practice
almost exclusively in the federal courts. The state bar associations
which promulgate ethical rules and regulations are, in essence, agents
of the states in which they function. While they are rightly entitled
to regulate the conduct of the attorneys admitted to practice in their
respective states, including Assistant United States Attorneys, that
regulation should be compatible with the manner in which federal
prosecutors have traditionally performed their duties in the federal
venue.
The assertion of ethical principles which contravene existent
federal prosecutorial practice would handcuff federal prosecutors,
thwart the efficient administration of justice, and usurp the authority
of the constitutionally established body charged with regulating
federal practice and procedure: the Congress of the United States. In
short, federal prosecutors ought be subject to the ethical rules of the
states in which they are admitted to practice, but those rules should
not conflict with the discharge of their official duties. Federal
prosecutors ought be subject to discipline by state authorities for
breach of those rules, but not when the conduct to be disciplined is an
appropriate performance of prosecutorial duty.
The question before us today is what legislation, if any, is
necessary in order to assure ethical conduct by federal prosecutors.
But, before giving detailed consideration to any legislative proposal
relating to the establishment of ethical standards for federal
prosecutors, it is both desirable and advantageous to examine the
current situation in an effort to determine the extent to which any
such legislation may be warranted. After the performance of such an
inquiry, which we might call a needs assessment, we will be in a far
better position to judge the value of any legislative proposals.
Accordingly, I would like to now review with you the numerous existent
practices, procedures and circumstances which serve to promote ethical
conduct and act as prosecutorial restraints. The chart that we have
placed before you contains a graphical representation of the numerous,
current ``barriers'' to prosecutorial misconduct. A copy will be
attached to my written remarks.
prosecutorial restraints
Case agent training, experience and judgment
Typically, an Assistant United States Attorney's first contact with
a given criminal case occurs when it is presented to him or her by the
case agent, i.e., the investigator to whom the case has been assigned
by the federal investigative agency. The case may be at an incipient
stage, or the investigation may be substantially underway. In either
event, the prosecutor will be working with a federal agent who has been
well trained and has demonstrated good judgment to agency supervisors.
Moreover, the agent will have been seasoned by some degree of
experience in the field. The prosecutor's interaction with a skilled
law enforcement professional will be a factor in the creation of an
atmosphere of professional responsibility.
Agency investigative policy and guidelines
The investigative and prosecutive process is impacted by the
internal rules, regulations, and policies of the investigative agency.
The agent with whom the prosecutor works is subject to rules of conduct
established by the agency for its employees. Agency policy and
guidelines will thus influence the nature of the professional
relationship between the investigative agent and the prosecutor.
Agency supervisor's training, experience and judgment
The case agent who works on a case with an Assistant United States
Attorney works under the active supervision of his own agency. The
agent reports to a supervisor on a regular basis, and the agent's
activities and written reports are subjected to supervisory review. The
training, experience and judgment of the supervisor act as a positive
influence upon the case agent, and they provide a qualitative direction
and control to the agent's job performance.
AUSA training, experience and judgment
Quite naturally, the Assistant United States Attorney's own
training, experience and judgment will contribute to the ethical
performance of prosecutorial duties. Also, it must be noted here that
by Department of Justice policy, every Assistant United States Attorney
is required to attend ethics training sessions on a regular basis.
AUSA's supervisor's training, experience and judgment
The federal prosecutor does not work in isolation. The Assistant
United States Attorney works under the direction of a unit and/or
division chief whose training, experience and judgment will also
contribute to the formation of an ethical work environment.
Internal U.S. Attorney's Office investigative and prosecutive
guidelines and policy
Most, if not all, United States Attorney's Offices have established
their own internal policies and investigative/prosecutive guidelines.
These internal rules and policies serve to further enhance an
atmosphere where ethical conduct is expected and demanded.
U.S. attorney's manual guidelines and policy
In fulfilling their daily responsibilities, federal prosecutors
have the assistance of a manual, promulgated by the Department of
Justice, which gives them information and guidance on a vast array of
issues.
Department of Justice investigative guidelines and policy
The work of an Assistant United States Attorney often involves
complex issues, novel legal questions, high profile cases, and other
sensitive questions. Over the years, the Department of Justice has
established guidelines and departmental policies which are to be
followed by prosecutors in the field.
Department of Justice approval process as to important issues and cases
Certain important issues and cases handled in the field by federal
prosecutors require Department of Justice consultation and approval.
For example, an Assistant United States Attorney who wishes to use a
wiretap, compel testimony from a witness by a formal grant of immunity,
issue a subpoena to an attorney, or bring a charge under the RICO
statute, must first secure departmental approval. Certain types of
prosecutions are routinely processed through the Justice Department in
Washington. In tax cases, for example, the evidence gathered by the
Internal Revenue Service is reviewed by the Tax Division which makes
the decision whether or not to prosecute. If prosecution is warranted,
the Tax Division sends the case to the United States Attorney's Office
with the instruction to file criminal charges.
Department of Justice attorneys' training, experience and judgment
In those cases which involve Department of Justice consultation and
approval, one or more attorneys and/or supervisors in the Department's
appropriate litigating division will participate in the decision making
process. Their individual and collective training, experience and
judgment will influence the formulation of ethically appropriate
decisions.
Judicial approval of search warrants
The search of a person's home or property constitutes one of the
most significant intrusions that government can impose upon that
person's freedom and right to privacy. In order to use such an
intrusive investigative technique, the law requires the law enforcement
officer to obtain the approval of a neutral and detached judicial
officer. Common practice requires the federal agent to have the
application for a search warrant reviewed and approved by an Assistant
United States Attorney prior to its submission to the court. When
unusual issues or circumstances are involved, oftentimes an Assistant
United States Attorney will consult with colleagues or a supervisor to
assure that a proper and legally justifiable search warrant is being
sought from the court.
Judicial approval of complaints and arrest warrants
To initiate criminal charges by way of a criminal Complaint, or to
secure a warrant for someone's arrest, the Assistant United States
Attorney is required to submit to the court an affidavit setting forth
the probable cause justifying the Complaint and the warrant. The
affidavit itself is ordinarily sworn to by a federal agent who has
knowledge of the case. A Complaint or a warrant will not issue without
the approval of a judicial officer.
Preliminary hearings--judicial determination as to probable cause and
release
Upon arrest, an accused is entitled to be brought before a judicial
officer without any unreasonable delay. If the defendant has been
charged in a criminal Complaint, the Assistant United States Attorney
must establish the existence of probable cause to the satisfaction of a
Magistrate Judge in order to obtain from the court an order in which
the defendant will be ``held to answer.'' To have the accused detained
without bond, an Assistant United States Attorney must demonstrate to
the Magistrate Judge that no condition or set of conditions will assure
the accused's future appearance before the court or that, if released,
he will not pose a danger to the community.
Grand jury indictment
To secure the return of formal criminal charges against anyone, the
federal prosecutor must establish the existence of probable cause to
the satisfaction of a majority of a federal grand jury. The grand jury
will then return an indictment. The grand jury is a body of citizens
drawn from the community to inquire into allegations of criminal
conduct and to consider the filing of criminal charges. As an
institution, the grand jury is several centuries old, having been
originated in England as a means to check the power of the crown.
Motion to dismiss
In cases where criminal charges have been filed, an accused can
seek the dismissal of charges, either pretrial or during the trial,
upon a showing of some impropriety or defect in the charges.
Motion to suppress
Where an accused believes that evidence was illegally obtained, he
may seek an order from the court suppressing such evidence, thereby
foreclosing its use at trial.
Motion for judgment of acquittal
At trial, an accused can seek an order from the court entering a
judgment of acquittal where the evidence is insufficient to support a
conviction. Where a court determines the evidence to be legally
insufficient, it even has the power to function as ``the thirteenth
juror'' and vacate a jury's verdict of guilty.
Judicial sanctions--district court
Assistant United States Attorneys, like all lawyers, are subject to
judicial sanction by the court where the court makes a finding of
misconduct. The sanctions available to the court include reprimand and,
censure, a finding of contempt, imposition of a fine, and an order
barring the attorney from practicing in that court.
Judicial sanctions--appellate court
Lawyers, including Assistant United States Attorneys, are also
subject to the disciplinary authority of the appellate courts. The
available sanctions are similar to those which may be exercised by the
lower court. One additional remedy exists at the appellate level,
however. Under an appropriate circumstance, the favorable judgment
obtained by the attorney in the lower court could be reversed.
Internal agency discipline
Where allegations of misconduct are raised against a federal agent,
that agent's own agency will conduct its own internal investigation
and, if circumstances warrant, impose sanctions upon the agent. Under
some circumstances, disciplinary actions taken against an agent may
have a deleterious impact upon an investigation or prosecution being
conducted by a federal prosecutor.
Internal U.S. Attorney's Office discipline
Where misconduct allegations are raised against an Assistant United
States Attorney, the United States Attorney's Office may take
disciplinary action against its employee upon a finding that the
attorney is in fact guilty of the charged misconduct. Internal
discipline within the United States Attorney's Office is usually
reserved to those cases where the misconduct is less serious in nature.
Office of Professional Responsibility
Where the charges of misconduct by a federal prosecutor are of a
more serious nature, the matter is referred to the Department of
Justice's Office of Professional Responsibility. That office is noted
for conducting thorough investigations which can be protracted. The
possible sanctions that could be imposed include reprimand, suspension,
and discharge from office. Even when vindicated by an O.P.R.
investigation, the experience can prove to be very difficult and
demoralizing to the prosecutor who was been victimized by spurious
charges. Last year, during the congressional consideration of the
Citizen's Protection Act sponsored by Congressman Joseph McDade, an
Assistant United States Attorney from Florida wrote to her congressman
and her two senators stating her opposition to Representative McDade's
bill and advising them of her own experiences. She wrote: ``I have
personally been subject to these processes, and I can tell you from
first-hand knowledge that the system provides more than the average
number of safeguards for unethical behavior without this bill. During
my experience, I spent months defending myself against a spurious
charge in three separate investigations. Though they all found no
wrongdoing on my part, my ability to represent the people of the United
States was, and has been, forever impacted by this horrible and
humiliating experience. This bill would make those types of experiences
commonplace for all of us.'' Michelle McCain Heldmyer, Assistant United
States Attorney, Pensacola, Florida.
State bar associations
Assistant United States Attorneys are subject to the disciplinary
rules of the state bar to which they belong. Indeed, the Department of
Justice expects its lawyers to adhere to the state bar ethics rules.
The Department's singular reservation has been to those instances where
a state bar has chosen to promulgate a rule which conflicts with the
official duties of its prosecutors.
Civil liability
Under some circumstances, federal prosecutors are subject to civil
suit for conduct related to the performance of their official duties.
The Congress has recognized the potential difficulties occasioned by
this liability by recently enacting legislation that would allow the
Department of Justice to pay one-half of the annual premiums on
malpractice insurance policies obtained by its prosecutors.
Unfortunately, to date the Department has not been able to extend this
benefit to its attorneys.
Hyde amendment claims
Recently enacted legislation sponsored by the House Judiciary
Committee Chairman, Representative Henry Hyde, allows defendants who
have been acquitted to bring suit against the government for damages
under certain circumstances.
Criminal prosecution
Finally, in the very worst of circumstances, federal prosecutors
are themselves subject to criminal prosecution should they violate the
law. Indefensible and condemnable acts such as subornation of perjury,
obstruction of justice and willful and unlawful violation of the rules
of grand jury secrecy constitute some of the potential grounds for
criminal prosecution. Assistant United States Attorneys do not and
would not condone such deplorable conduct by a colleague, and they
earnestly hope and pray that they will never see the day that a
colleague is charged with any such offense.
Three significant observations
The foregoing analysis leads us to three significant observations
regarding the promulgation of ethical regulations for federal
prosecutors. First, federal prosecutors are already subjected to many
proscriptions and restraints. Indeed, it can be forcefully argued that,
currently, federal prosecutors are more regulated than other members of
the bar. The preceding analysis discloses that a prosecutor's conduct
is subjected to continual and pervasive scrutiny. Moreover, there are
very adequate disciplinary remedies already available for any instances
of misconduct which would warrant the imposition of sanctions.
The second observation relates to the fact that issues of ethics
and discipline are a very personal matter. These are not abstractions
about procedural questions or constitutional interpretations of law,
rather, they go directly to the very heart of a prosecutor's most
valuable possessions: integrity and reputation. We are dealing with
matters that deeply impact a person's livelihood and professional
future. Allegations of misconduct, even if spuriously made, have
profound impact upon morale which, in turn, will negatively impact the
quality of work being performed by even the most conscientious of
prosecutors.
The third observation relates to the interaction between
prosecutors and agents. In recent years, federal prosecutors have
become more active in the investigatory process and have assumed a
greater role in the direction and supervision of investigations. The
blanket application of state ethics rules to federal prosecutors will
extend the ultimate impact of those rules to investigative agents
simply because they are now working under a prosecutor's supervision.
Ironically, such an extension of regulation to agent activity is likely
to produce unintended, counter-productive results. Knowing that their
closer relation to the prosecutor serves to circumscribe their
investigative efforts, agents may well be motivated to separate
themselves from prosecutorial oversight and act more independently.
Having lost the benefit of prosecutorial supervision, the quality of
law enforcement will diminish, a circumstance that will surely be
decried by the organized bar that precipitated it.
the citizen's protection act of 1998
Having reviewed with you the various practices, procedures and
mechanisms which serve to promote ethical conduct and act as
prosecutorial restraints, I would like to take a moment or two to
comment upon a bill passed by the Congress last October. The Citizens
Protection Act of 1998 was sponsored by Representative Joseph McDade
and was ultimately affixed to an omnibus appropriations bill which was
hurriedly enacted in the closing moments of the last Congress. It was
enacted without the benefit of a hearing in either congressional
chamber. This Committee was thus deprived of an opportunity to exercise
its normal and appropriate legislative prerogatives. Indeed, it would
appear that the bill's primary supporters made every effort to avoid
the scrutiny of this Committee and its counterpart in the House.
Consequently, we find ourselves confronted with legislation, which
was both ill-advised and poorly crafted, slated to become effective in
but a short time. The statute's key defect is that it subjects federal
prosecutors, without any qualification, to the ``State laws and rules
and local federal court rules'' in any state where the prosecutor
``engages in that attorney's duties.''
The vagueness of the statutory language is patent. A cursory
reading discloses that the words are so ambiguous in character that the
federal prosecutor's duty of adherence is not specifically confined to
ethical rules, but to ``laws and rules'' in general. The sheer breadth
of this statutory language opens the door to much mischief. For
example, many states have laws prohibiting the obtaining of evidence by
wiretap. But, for more than thirty years, federal prosecutors have been
authorized by law to gather evidence from the use of judicially
sanctioned and supervised electronic surveillance. We can realistically
anticipate many challenges to wiretap evidence obtained in states where
state laws proscribe the use of electronic surveillance.
The blanket subjugation of federal prosecutors to state ``laws and
rules'' creates another problem which seriously implicates the
constitutional principles of federalism and the supremacy clause. As
written, the statute now creates an opportunity for state bar
associations, and perhaps state legislatures, to promulgate new ``State
laws and rules'' governing federal law enforcement. So construed, this
statute amounts to a congressional delegation or cession of its
legislative authority to the states. The remaining question is how far
will state authorities go in the exercise of such regulatory authority
over federal law enforcement.
And, finally, it should be noted that the statute provides that
government attorneys ``shall be subject to State laws and rules * * *
to the same extent as other attorneys in that State.'' The statute thus
operates upon the faulty assumption that the federal prosecutor is just
like all other lawyers. It ignores the fact that a federal prosecutor
practices law almost exclusively in the federal court. It also fails to
consider the fact that a prosecutor's work environment is far different
from that of attorneys who are not prosecutors. As a public official,
the federal prosecutor is subject to many more restraints and controls
than attorneys who are not prosecutors. The chart which I presented to
you earlier, as well as my earlier delineation of the many rules,
procedures and mechanisms which exert influence and control over
prosecutorial conduct, clearly demonstrate that there are far more
ethical restraints upon the federal prosecutor than upon the
prosecutor's law school classmates who have chosen to follow a
different career in the law.
Most importantly, the statute fails to account for the fact that a
federal prosecutor's authority and responsibilities are far different
from those of an attorney engaged in the private practice of law. As a
representative of the people, the duties of the federal prosecutor
occupy a different, if not special, place in the operation of our legal
system. The federal prosecutor represents not an individual client, but
the people of the United States of America. It is the prosecutor's duty
to enforce the law, not to seek a remedy or damages for a client. In
proving a case, the prosecutor must prove it beyond a reasonable doubt,
not to a preponderance of the evidence as the plaintiff's counsel in a
civil case. The federal prosecutor may not prosecute a defendant he or
she knows to be innocent, yet the defendant's attorney is duty bound to
vigorously defend a client known to be guilty. Thus, it may make sense
to promulgate an ethical rule forbidding a civil attorney from
contacting a represented party without the notification/consent of that
party's counsel. But in the context of the federal prosecutor's role in
the administration of justice, the strict application of such an
ethical rule may well be illogical and in conflict with the
prosecutor's duty. Later, I will share with you a story that
dramatically illustrates that point.
cases in point
Perhaps the best way to underscore the difficulties posed by the
blanket subjugation of federal prosecutors to the ethical rules of
state bar associations is to examine real cases and consider how they
would have been impacted if state bar rules had controlled. Far from
being speculative, these illustrations drive home the point that, as
enacted, the Citizen's Protection Act of 1998 would not protect the
citizenry as much as it would deprive them of the effective enforcement
of the law to which they, as citizens, are entitled.
Operation senior sentinel
In an effort to stem the rising tide of telemarketing fraud,
several years ago the Department of Justice launched an initiative,
under the supervision of federal prosecutors, called ``Operation Senior
Sentinel.'' The undercover technique utilized in this investigation
involved the secret recording of telephone calls from telemarketers to
the telephone numbers of actual, former victims of telemarketing fraud.
Many of the victims were senior citizens who had been defrauded out of
substantial sums of money. With their cooperation and consent, their
telephone numbers were taken over by the F.B.I. and routed to lines
which were answered by retired agents and volunteers from the American
Association of Retired Persons (AARP). With the consent and cooperation
of the answering party, the telephone calls from telemarketers were
secretly recorded. The telemarketers believed that they were making a
pitch to a would be victim when, in fact, their pitch was being
recorded and preserved to be used as evidence against them at a later
date. Eventually, more than 450 persons from various states were
successfully prosecuted.
Some of the calls were recorded in jurisdictions where state laws
prohibit the recording of telephonic conversations unless both parties
to the conversation agree to the recordation. Had the state law in
those jurisdictions controlled, federal prosecutors would have been
ethically precluded from supervising the investigation, and the
evidence gathered through this investigative technique would have been
inadmissible in court. As a consequence, this law enforcement
initiative to combat telemarketing fraud would have been substantially
impeded if not entirely thwarted.
Little Loreal Roper
By all accounts, Loreal Roper was a typical, active three year old
child. The toddler was destined, however, to find herself in the middle
of an outburst of murderous violence. May 9, 1992 was one of those
pleasant, warm, spring days in the city of Detroit. Harry Roper,
Loreal's uncle, was sitting on the front porch talking with two male
visitors while Loreal stood in the doorway looking on. One of the
visitors was Alfred Austin, a young man who had recently had a brush
with the law in the state of Ohio where he was now facing weapons
charges.
As little Loreal stood in the doorway observing her uncle and the
two men sitting with him on the front porch, a fourth man quietly
approached the house. When he got to within ten feet of the three men
on the porch, he produced a gun and shot all three of them to death.
The cold blooded gunman then turned his attention to the innocent
little girl standing in the doorway and, in a further act of savage,
brutal violence, he shot little Loreal in the face, killing her. The
gunman escaped from the scene, leaving behind the bodies of his four
victims, including the three year old toddler.
At that time, federal and local authorities were in the midst of an
intensive investigation of a notorious and extremely violent group of
Detroit drug traffickers known as ``Best Friends.'' The organization
was believed to be responsible for at least 50, and perhaps as many as
80, drug related murders in Detroit and elsewhere.
Alfred Austin had been marked for death when a defense attorney
advised members of the Best Friends organization that Austin was about
to cooperate with the authorities and that he should be taken care of.
Little Loreal Roper's life ended at the tender age of three when she
became a victim as an innocent bystander to a Best Friends' execution.
During the Best Friends investigation, a female defendant charged
with laundering drug money approached an Assistant United States
Attorney without the presence or knowledge of her attorney. She advised
the prosecutor that one of her sons, who was also a defendant
represented by counsel, wanted to cooperate with the government. She
further said that her son did not trust his attorney and, therefore,
could not communicate through him. An Assistant United States Attorney
then spoke to the son, with out the presence, consent or knowledge of
his attorney. When the son confirmed what his mother had indicated
about his desire to cooperate and his fear of his attorney, the
prosecutor advised the court and another attorney was brought into the
case to represent the son. The first son advised the government that
his brother also wished to cooperate but he, too, did not trust his
lawyer. The second son was also approached by the government, without
the knowledge of his attorney, to confirm what his brother had said.
When the second son confirmed those facts, the court was advised and a
new attorney was appointed for the second son as well.
The cooperation of the two brothers was the major break in the
case, and led to the dismantling of the Best Friends organization. In
the end, approximately fifty people were charged and convicted of
various crimes, including murder. As we sit here today, the murderer of
little Loreal Roper is behind prison bars where he will spend the rest
of his life.
Rule 4.2 of the Michigan Rules of Professional Conduct prohibits
lawyers from contacting persons who are represented by counsel.
Department of Justice policy, however, allows for such contacts under
certain limited circumstances. If the Michigan rules had prevailed over
Department of Justice policy in this case, the man who murdered little
Loreal Roper and a number of his murderous colleagues might still be
roaming the streets of Detroit today. And the Best Friends' drug
trafficking and bloodbath would still be in progress.
conclusion
It is quite apparent from the foregoing that 28 U.S.C. 530B, the
Citizens Protection Act of 1998, is fundamentally flawed in numerous
respects. Its provision for the blanket subjugation of federal
prosecutors to ``State laws and rules'' will significantly impede the
administration of justice at the federal level. If we are to truly
protect the citizens of our Republic, we must afford them the quality
federal law enforcement effort that they deserve. Section 530B must be
repealed or amended. S. 250, the Federal Prosecutor Ethics Act,
constitutes an appropriate remedy to the problem at hand. On behalf of
the members of the National Association of Assistant United States
Attorneys, and all of this nation's more than 4,500 federal
prosecutors, I respectfully urge this Subcommittee and the entire
United States Senate to rectify the situation created by the statute so
hurriedly enacted last year. Thank you.
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Senator Thurmond. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. I have to
preside at the Senate in 5 minutes, and I am very, very
disappointed not to be able to be with you.
I got to know Mr. Justice. We are glad to have you here.
And, Mr. Delonis, you represent the people with the greatest
job in the whole world, assistant U.S. attorneys. I have been
that, and U.S. attorney, and assistant is better. You don't
have as many headaches. But it is a great job and it is
composed of some of the finest people I have had the pleasure
to know.
Mr. Delonis. Thank you, Senator.
Senator Sessions. It is good to see Mr. Smietanka. John and
I served as U.S. attorneys together for 12 years, I guess.
There were just a handful that lasted that long.
Mr. Smietanka. That is right.
Senator Sessions. But John is a man of integrity and
ability and courage and kindness and gentleness and strength
and power, and all the good things that anybody could have as a
human being, and it is an honor to see him again. And I respect
you and the work you did as a principal deputy to the Attorney
General and as U.S. attorney. It is good to see you again,
John.
Mr. Smietanka. It is good to see you.
Senator Sessions. I am sorry I am not going to be able to
stay for the rest of this panel. Thank you so much, Mr.
Chairman.
Senator Thurmond. Thank you.
Before we go to questions, Mr. McKay and Mr. Hazard, do you
all have anything you would like to say?
STATEMENT OF G. ANDREW McKAY
Mr. McKay. Mr. Chairman, with your permission, I would like
to not repeat my statement, but supplement it with a few
comments that I will keep certainly within the 5-minute rule,
with your permission.
The issue is not, I believe, as the Department of Justice
has testified before you today, whether the Ethical Standards
for Federal Prosecutors Act creates new rules and restrictions
for the Department of Justice. In fact, the eighth district
decision last year governs the Department attorneys' conduct
today. And whether McDade is in force or not, I believe the
rules governing the conduct of the Department's attorneys would
not change, and that would be the enforcement of the State
laws.
The McDade provision simply codified the well-established
understanding that all attorneys are subject to State bar
professional rules of conduct. Since 1908, when the ABA first
proposed the model rules, the chief judges in the highest
courts in the States have adopted essentially the same
standards for Federal and for local attorneys. And those of us
who are in the corporate bar and other bars who also practice
on a Federal level have to abide by all of those different
rules.
The American Corporate Counsel Association, which is made
of nearly 11,000 attorneys and 4,500 organizations across the
United States and overseas, does not support the rescission of
the McDade provisions or the adoption of S. 250. We believe
that the current standards are appropriate. That has been
supported by the National Association of Manufacturers, the
Chamber of Commerce, and others. And with the Chair's
permission, I would be happy to submit additional comments for
the record from those organizations rather than take time now
to repeat those.
But I would like to point out to the Chair and the
subcommittee a couple of other matters that I think are useful
in your consideration. Senator Schumer mentioned that in the
adoption of the legislation last year, this was a rather hasty
and ill-conceived consideration. In fact, back in 1996, the
Department and others were testifying before the House
Committee on the Judiciary about ethical standards for Federal
prosecutors. There was a report issued.
The Department had ample opportunity to discuss what was
then H.R. 3386, and essentially the McDade provision codifies
what was the result of those hearings. There has been some
precedent and some discussion of these issues in the past, and
the McDade bill is not a radical departure.
I would like to address one point that the Deputy Attorney
General and his two colleagues made. With the Chair's
permission, I would like to quote from a letter from the
National Organization of Bar Counsel. This is a letter to
Senator Hatch that is dated March 10, and I think it speaks
pointedly to a couple of issues that are of legitimate concern
to this committee and to others.
The truly remarkable feature of the Department's
campaign is the absence of any evidence to suggest a
factual basis for the Department's concern that its
line attorneys are at the mercy of State bar
prosecutors, who are in turn supposedly working hand in
hand with the criminal defense bar to complicate the
lives of their prosecutorial adversaries. In the
collective experience of the National Organization of
Bar Counsel, nothing could be further from the truth.
Informal surveys of the membership of the NOBC, which
includes every attorney disciplinary authority in the
country, repeatedly have failed to produce evidence of
ethical prosecutions or even investigations directed at
Federal prosecutors who engage in traditionally
accepted law enforcement activities, such as string
operations, undercover operations, wiretap
surveillance, or the like.''
Mr. Chairman, I think the record is clear that there are
standards and they should be set very high for all of us who
are members of the bar. As a former Federal prosecutor, now as
a corporate attorney, we all individually should maintain and
be held to that high standard. I do not think it is appropriate
for the Department of Justice to be the final arbiter of its
own rules of ethical conduct. I don't think this committee nor
the Congress needs to be persuaded by the simple innuendo of
the prosecutorial authority that they have been inhibited.
All of us who are former prosecutors--and I could cite from
several, including members of the panel who spoke earlier and
their predecessors who oppose this legislation--I think all of
us have a different perspective on how high that bar should be
set and the limitations that it should be met with by this
committee and by the Congress.
I look forward to working with this committee. If the
American Corporate Counsel Association or the other
organizations I mentioned can be helpful to this committee in
considering the legislation, we would be pleased to do so, Mr.
Chairman. Thank you.
Senator Thurmond. Thank you.
[The prepared statement of Mr. McKay follows:]
Prepared Statement of G. Andrew McKay
Mr. Chairman and Members of the Committee: I appreciate your
invitation to address this important subject before the Committee
today. I come before you with perhaps a different perspective than my
distinguished former colleagues from the Department of Justice who
testified today. I am a representative of perhaps the most potentially
adversely affected group by your decisions in this matter: corporate
America.
I have been practicing as a corporate attorney, currently Executive
Vice President, Chief Operating Officer and Deputy General Counsel of
DSFX International, for the last thirteen years. I am a member of the
American Corporate Counsel Association, Chair of its National
Litigation Committee, Board Member of the ACCA Foundation, and past
President and Board Member of the Washington Metropolitan Corporate
Counsel Association. Before corporate practice, I was an Assistant US
Attorney for the District of Columbia and served as counsel to a
Congressional committee, among other positions I held on the Hill and
at the Federal Election Commission.
The subject under consideration before you is perhaps rare, if not
unique; it is a non-partisan, neither Republican nor Democratic, issue.
Effective law enforcement is really not the central issue either, I
suggest. No one would argue with the proposition that we want effective
Federal (and local) law enforcement. Nor is this a debate about this
particular Attorney General or anyone else in the current leadership of
the Department of Justice. After all this debate began during the
Carter Administration under Judge Bell when he was the Attorney General
but received it most notable attention during the Bush Administration
under Attorney General Tbornburgh.
This is a question of the appropriate ethical standards for federal
prosecutors, which was well-established until 1989 when the Department
began its unilateral efforts to exempt itself from the rules. State and
federal courts have universally rejected, including most recently by
the Eighth Circuit Court of Appeals in their January 6, 1998, opinion
in the United States v. McDonnell Douglas Corporation (132 F.3d 1252),
the Attorneys General arguments that the Department has the authority
to promulgate rules regarding ex parte contact with individuals,
specifically with represented corporate employees. The Conference of
State (Supreme Court) Justices unanimously approved a resolution
rejecting the Department's attempt to evade the fundamental rules
governing ethical attorney conduct. State bar ethical bodies have
uniformly applied Rule 4.2 to government attorneys and maintained that
it would be a violation of a corporation's right to counsel in a
governmental action if federal prosecutors were allowed to have ex
parte contacts with represented corporate employees.
The Committee and Congress are examining the fundamental principle
of the right of individuals, including organizations, to be
represented. This widely accepted principal, too, has overwhelming bi-
partisan support. It is a principle, I believe, that has been accepted
by all states, the courts and, with the passage of Section 801 of the
Omnibus Spending Bill last year, wisely reaffirmed by the Congress.
At the same time, as a former federal prosecutor I understand the
Department's desire to increase its weapons to fight crime. However, I
respectfully disagree with the leap-of-faith that the Department is
asking the Committee to take. Having debated a senior Departmental
representative on this subject twice last year, once before the ABA and
again at ACCA's annual meeting, I still am unaware of any empirical or
substantive evidence the Department has proffered to demonstrate the
need for this exemption from the rules governing all other attorneys.
It is not enough, I submit, to simply say that multi-jurisdictional
prosecutions would be aided by freeing DOJ prosecutors from state
ethical obligations. It probably would make such prosecutions easier if
you abolished Miranda warnings in such cases, too, but I don't think
the Committee or Congress would entertain such a suggestion. But where
is the evidence to substantiate the Department's claim? What
prosecutions have been hindered? What were the facts and circumstances
in those cases? How many prosecutions really were affected? What
disciplinary proceedings have resulted from multi-state prosecutions
that these changes would eliminate in the future? The Committee
deserves such facts not just innuendo from the Department.
What the Department is asking the committee to do--without proper
justification--is akin to authorizing what I've labeled as a
``Representational Wiretap'' whenever the Department sees fit. This is
unnecessary and diametrically contrary to important fundamental
principles. The right to counsel should not be lightly dismissed. And,
no one individual or entity should be the final, self-governing
arbitrator of these important rights. We don't allow it in traditional
wiretaps, why should you be asked to change the standard here? Instead,
why not authorize the Department to have judicial review and approval
of such activity when it can demonstrate the specific need in a
particular case to a judicial officer? Such a showing could include the
authorization to use undercover agents and informants when the court
finds it appropriate. Why create an entirely new mechanism to address
the Department's concern when a procedure already exists that could
accommodate legitimate law enforcement concerns and needs? And, it is a
procedure that works well for everyone's benefit: protecting the rights
of individuals, while at the same time aiding effective law enforcement
in the appropriate cases.
The Department only says that it needs help in prosecuting drug
trafficking, organized crime and telemarketing fraud. While I certainly
agree that these are important crimes to combat, why should we subject
the overwhelming majority, I suggest 99.99 percent, of corporations and
organizations to such intrusive and potentially damaging contact? How
is it intrusive or potentially damaging? The mere fact that--an
organization could be held liable for what a heretofore represented
individual might say is contrary to the long standing principles of
fairness. See for example Comment 4 to the ABA's Model Rules. To follow
the analogy I proposed above, why isn't an organization entitled to the
same protections as individuals who are being targeted by federal
prosecutors? Individuals receive Miranda or Civiletti warnings, but the
Department doesn't even want the organization to be represented.
In today's marketplace the mere consequence of a corporation being
investigated by the Department could have significant market and
business consequences--regardless of the final outcome. Market price is
affected each day by news about corporate performance in advance of
actual disclosures by the company. How would the shares of a
corporation be affected by an investigation started by a disgruntled,
or worse miscreant, employee? How would such disclosure affect those
doing business with corporation? Under such circumstances how is the
corporation to protect itself if it cannot be properly represented? One
proposal I previously made was that as a result of ex parte contact
individuals could be held liable for their conduct, but that the
organization could not. I was not surprised when my suggestion was not
agreed upon by the Department. But why deny an organization the right
to be adequately represented and then hold them accountable for any
information that is collected?
The Department simply wants too much. The Department has apparently
chafed under the current ethical structure when the Attorneys General
have been unsuccessful at unilaterally establishing new governing
ethical policies. The Department's twenty year effort to remove its
prosecutors from the appropriate standard of ethics governing all other
attorneys should be ended. The no-contact rule should not be diluted;
the legitimate and reasonable constraints on such ex parte contact
should remain. Nor should the Department become a self enforcing
ethical body, exempt from discipline by state courts when it chooses.
All attorneys should shoulder the same professional duties, obligations
and privileges in the pursuit of justice.
Senator Thurmond. Mr. Hazard, would you care to make any
statement?
STATEMENT OF GEOFFREY C. HAZARD, JR.
Mr. Hazard. Yes, sir. I will be brief. I think Federal
Government lawyers should be governed by rules of ethics
because I think lawyers who are not, are not real lawyers. The
States have regulated the bar since before the Constitution,
and I think that authority ought to be recognized and
maintained.
The Department of Justice does have some special problems.
You have heard about them today. They center on one rule, 4.2.
I believe that the power of investigation should be reasonably
protected in the way that Mr. Holder and his colleagues
suggested. I speak of that only generally, but that is the
idea. That is possible under rule 4.2 if there were
authorization on some form of Federal regulation because that
rule contemplates that there would be special authorization.
I happen to think that most of the activities are already
authorized by law, but the Department understandably gets
nervous and that nervousness tends to be accentuated when State
bar committees issue some of these opinions that we have heard
about. I think the baseline ought to be where it now is. I
don't think the Department of Justice ought to make the rules,
as would be permitted under the Hatch bill, because that
amounts to Government lawyers making their own rules. Assuming
that was valid, as I assume it would be, it just won't enjoy
public support. There ought to be a broader base.
So the question is how do you get from here to there. I
suggest an ad hoc commission made up of members of the Senate,
House, the Department of Justice, the Conference of Chief
Justices which is very interested in this, and the legal
profession, or some such group. It happens that the Conference
of Chief Justices and the Department of Justice, through very
long negotiations which were referred to earlier, have gotten
pretty close. I think that is a reasonable place to begin. I
think it is possible to arrive at a set of rules that would
provide some special protection for government attorneys. I
think they are entitled to that, but I don't think we ought to
displace the State rules wholesale in an effort to remedy that
relatively narrow problem. I would be glad to be available to
your staff or whoever, Mr. Senator, in whatever way I could be
helpful.
Let me conclude by saying I appear here personally, not as
a member of the Rules Committee of the Judicial Conference, not
as a member of an ABA committee which I happen to be one, but
only as an individual.
Thank you, sir.
Senator Thurmond. Thank you, Professor Hazard.
Now, we will begin questions. Mr. Smietanka, do you think
the interests of Federal prosecutors are adequately represented
before the ABA and State bars when ethical rules that impact
Federal law enforcement are considered?
Mr. Smietanka. No; the reason is for several reasons. No.
1, there are 400,000 members of the American Bar Association.
Of those 400,000, there are, I understand, roughly 4 to 5,000
prosecutorial-type folks who are active or members of that
Association. When you get to the level of the rulemaking
committees, I believe there is no one who is representing the
prosecutorial point of view.
When I say ``point of view,'' that is extremely important,
Mr. Chairman, because there is a basic difference in outlook,
mandated by the law and the power we give to prosecutors, than
to lawyers who are in the private practice, and that is the
responsibility of the prosecutor is not simply to represent a
private client to get their best interest, but it is to
exercise the power of the government and their discretion they
are given to, in fact, do justice. That is a different
perspective than is represented, understandably, by the
American Bar, the other 392,000 lawyers.
Senator Thurmond. Thank you very much.
Mr. Justice, if the McDade amendment is not amended or
repealed, do you believe it could complicate and impede
Federal-State cooperation in law enforcement efforts?
Mr. Justice. Certainly, Senator, I fully believe that it
would. The cooperation that we have enjoyed the last number of
years has been exceptional. There was a time when there was
little cooperation between State and Federal prosecution, but
that has changed. The McDade amendment would undo that, in that
the Federal prosecutor would look more to within the State of
his assignment to find his subject matter for prosecution,
which would put him in direct conflict with State prosecution.
As I mentioned before, if it passed in its pure form that has
been reintroduced this year, it would absolutely dissolve the
idea of cross-designation of State prosecutors as assistant
U.S. attorneys.
Senator Thurmond. Incidentally, I want to commend you for
your good work in South Carolina.
Mr. Justice. Thank you, and yours too.
Senator Thurmond. Thank you.
Mr. Delonis, it appears to me that the McDade amendment
will make prosecutors especially cautious not to do something
that may even possibly violate a State's ethics rule because of
the impact it would have on them personally. Please discuss the
implications that disciplinary proceedings can have against the
career and livelihood of an assistant U.S. attorney.
Mr. Delonis. Mr. Chairman, I think that it is fair to say
that the McDade amendment going into effect and being fully
implemented would have a chilling effect on prosecutors in
their work. I think they would be more reserved in the vigor
with which they pursue their work because as a prosecutor, as a
Federal attorney, you don't amass a fortune. At the end of your
career, your greatest assets that you hold are your integrity
and your reputation.
And when you get challenged and accused of misconduct by
people on the other side--and I can say that I have seen
something in 30 years that has happened; there has been a
change in the judicial culture. The prosecutor now is the
victim of personal attack as a defense tactic. That didn't
happen when I was a new rookie in the Federal courts.
U.S. attorneys, we in the field, take these charges very
seriously. We take them to heart, and what is especially
burdensome is when somebody on the other side, as a tactic or
maneuver of their own, calls our integrity into question when
we know in our heart of hearts we have done nothing wrong, that
we have been correct. And then we are put through a long,
protracted process of defending ourselves and we come out of
that being cleared because so many of these things are spurious
allegations to begin with. And it leaves an indelible imprint
on the morale of the person who has come under fire, when all
they have done is performed their sworn duty in the best way
that they knew how.
Senator Thurmond. Thank you very much.
Mr. McKay, assume that a low-level employee voluntarily
approaches a Federal prosecutor to discuss corporate fraud and
he says he is not and does not wish to be represented by the
corporation. In your opinion, is it appropriate for the
employee to speak to the prosecutor, and if it is not, can this
limitation impede whistleblowers?
Mr. McKay. I think it is appropriate for the individual to
speak with the prosecutor, but I also think it is appropriate
for the corporate counsel to be notified of such conversation.
If the individual employee declines to be represented by
corporate counsel, I think there is no prohibition for that
employee to continue. I think corporate counsel is entitled to
be notified, as I believe the model rules originally
contemplated. I don't think that is an impediment today, nor
should it be. But the individual has the right to decline the
representation and that should be his right. The corporation,
though, should be at least notified, Mr. Chairman.
Senator Thurmond. Thank you.
Professor Hazard, I understand that there is considerable
debate within the legal community on whether the Judicial
Conference should develop uniform Federal ethics rules. Do you
think it is likely that in the near future the Judicial
Conference will actually propose some form of uniform rules to
the Congress under the Rules Enabling Act?
Mr. Hazard. I think it is very unlikely, and I might say as
a member of the committee I oppose it. I think we have got
enough complications with the 50 State rules. I don't see that
a uniform Federal rule would help. I think the problem before
this house on 4.2 can be focused on and resolved without
displacing State rules generally.
Senator Thurmond. I believe that is all the questions I
have. Do any of you care to make any further statement?
[No response.]
Senator Thurmond. Well, I want to submit for the record a
statement by Senator Hatch and a statement by Senator Leahy,
members of this Judiciary Committee.
[The prepared statements of Senators Hatch and Leahy
follow:]
Prepared Statement of Senator Orrin G. Hatch, a U.S. Senator From the
State of Utah
Mr. Chairman, thank you. I appreciate your leadership in holding
this important hearing, today.
This hearing could not be more timely. Last year's omnibus
appropriations bill included a provision originating in the house,
relating to the application of state bar rules to federal prosecutors.
The so-called McDade amendment proposed the addition of a new section,
Section 530B, to title 28 of the United States Code, which would effect
the ethical standards required of federal prosecutors.
Including this provision was so controversial that a bipartisan
majority of the Judiciary Committee opposed its inclusion in the
omnibus bill. In fact, our strong opposition resulted in a six month
delay in the provision's effective date being included as well.
So there is no mistake, let me make it clear that questioning this
provision should not be interpreted as advocating looser ethical
standards for federal prosecutors, as some might suggest. Indeed, I
have considerable sympathy for the values Section 530B seeks to
protect. No one wants more than I to ensure that all federal
prosecutors are held to the highest ethical standards. As Justice
Sutherland put it in 1935, the prosecutor's job is not just to win a
case, but to see ``that justice shall be done. * * * It is as much his
duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just
one.''
No one would suggest that unethical conduct be tolerated by any
attorney--and especially not by an attorney representing the United
States in federal court. The real question is whose rule to apply. I
respectfully submit that, in general, the conduct of federal attorneys
practicing before federal courts should be subject to federal rules,
particularly when state rules conflict with established federal
practice.
Although well-intentioned, section 530B is not the measured and
well tailored law needed to address the legitimate concerns
contemplated by Congress, and will have serious unintended
consequences. Indeed, if allowed to take effect in its present form,
section 530B could cripple the ability of the Department of Justice to
enforce federal law.
The federal government has a legitimate and important role in the
investigation and prosecution of complex multi-state terrorism, drug,
fraud or organized crime conspiracies, in rooting out and punishing
fraud against federally funded programs such as Medicare, Medicaid, and
Social Security, in appropriate enforcement of the federal civil rights
laws, in investigating and prosecuting complex corporate crime, and in
punishing environmental crime.
As we will hear from some of our witnesses today, it is in these
very cases that current Section 530B, if unchanged, will have its most
serious adverse effects. Federal prosecutors in these cases, which
frequently encompass several states, will be subject to the differing
state and local rules of each of those states. Their decisions will be
subject to review by the ethics review boards in each of these states
at the whim of defense counsel, even if the federal prosecutor is not
licensed in that state.
At a minimum, the law will discourage the close prosecutorial
supervision of investigations that ensure that suspect's rights are not
abridged. More likely, however, in its current form, section 530B will
hinder the effective investigation and prosecution of violations of
federal law.
Several important investigative and prosecutorial practices,
perfectly legal and acceptable under federal law and in federal court,
under current section 530B will be subject to state bar rules.
In short, current section 530B will likely affect adversely
enforcement of our antitrust laws, our environmental laws prohibiting
the dumping of hazardous waste, our labor laws, our civil rights laws,
and the integrity of every federal benefits program.
I have given this matter substantial thought, and believe that the
issue of ethical rules for federal prosecutors is only symptomatic of a
larger issue to which greater consideration needs to be given.
Presently, there are no uniform ethical rules that apply in all federal
courts. Rather, applicable ethics rules have been left up to the
discretion of local rules in each federal judicial district. Various
districts have taken different approaches, including adopting state
standards based on either the ABA Model Rules or the ABA Code, adopting
one of the ABA models directly, and in some cases, adopting both an ABA
model and the state rules.
This variety of rules has led to confusion, especially in multi-
forum federal practice. As a 1997 report prepared for the Judicial
Conference's Committee on Rules of Practice and Procedure put it,
``Multi-forum federal practice, challenging under ideal conditions, has
been made increasingly complex, wasteful, and problematic by the
disarray among federal local rules and state ethical standards.''
Indeed, the U.S. Judicial Conference's Rules Committee has been
studying this matter, and is considering whether to issue ethics rules
pursuant to its authority under the federal Rules Enabling Act.
I believe that this is an appropriate debate to have, and that it
may be time for the federal bar to mature. The days are past when
federal practice was a small side line of an attorney's practice.
Practice in federal court is now ubiquitous to almost any attorney's
practice of law. It is important, then, that there be consistent rules.
Indeed, for that very reason, we have federal rules of evidence,
criminal procedure, and civil procedure. Perhaps it is time to consider
the development of federal rules of ethics, as well.
This is not to suggest, of course, a challenge to the traditional
state regulation of the practice of law, or the proper control by state
Supreme Courts of the conduct of attorneys in state court. The
assertion of federal sovereignty over the conduct of attorneys in
federal courts will neither impugn nor diminish the sovereign right of
states to continue to do the same in state courts.
I want to work with all interested parties to address--and
resolve--the critical issue. I believe that today's hearing is an
important step in this process, and I commend Senator Thurmond for
holding it. Thank you, Mr. Chairman, and I look forward to the
testimony of our witnesses.
__________
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the
State of Vermont
I commend Chairman Thurmond and Senator Schumer, the Ranking Member
on this Oversight Subcommittee, for holding a hearing on the Citizen's
Protection Act. These provisions, which are known as the ``McDade
law,'' reflect an effort to clarify the ethical standards that apply to
federal prosecutors and to identify who has the authority to set those
standards. These are two questions that have cried out for answers for
years, and created enormous tension between the Justice Department and
virtually everyone else. We will hear today from a number of witnesses
representing law enforcement organizations that are critical of the new
law.
But we cannot lose sight of the fact that the McDade law has
enormous support in other quarters, which is part of the reason the law
passed in the first place. To name a few, the McDade law is supported
by the Chamber of Commerce, the National Association of Manufacturers,
the American Corporate Counsel Association, the National Organization
of Bar Counsel, the ABA, the National Association of Criminal Defense
Attorneys, General Motors Corporation and Monsanto.
The McDade law passed in October last year as part of the omnibus
appropriations bill, yet this is the first congressional hearing in
either the Senate or the House of Representatives on this law. Given
the importance, complexity and controversy surrounding this issue, it
is a matter that this Subcommittee and the Senate Judiciary Committee
ought to examine carefully and responsibly.
The Justice Department aggressively opposed passage of the McDade
law last year. It will come as no surprise today to hear that the
Department continues to fight aggressively against this law. The
Department has most recently been supportive of a change in the
effectiveness date of the law to prevent its ever going into effect.
Rather than a standstill that merely delays the effectiveness of a new
law, such action in this setting would, in effect, repeal the McDade
law for that period and the Department would during that period claim
authority to prescribe regulations governing the conduct of federal
prosecutors around the country, and rely on the controversial Justice
Department regulations issued in 1994--regulations that allow contacts
with represented persons and parties in certain circumstances, even if
that contact is at odds with state or local ethics rules.
Independent Counsel. The debate over the ethical rules that apply
to federal prosecutors comes at a time of heightened public concern
over the high-profile investigations and prosecutions conducted by
independent counsels. Special prosecutors Kenneth Starr and Donald
Smaltz are the ``poster boys'' for unaccountable federal prosecutors.
They even have their own Web sites to promote their work. By law, these
special prosecutors are subject to the ethical guidelines and policies
of the Department of Justice, and all of them claim to have conducted
their investigations and prosecutions in conformity with Departmental
policies.
I am not alone in my concerns about the tactics of these special
prosecutors and, specifically, requiring a mother to testify about her
daughter's intimate relationships, requiring a bookstore to disclose
all the books a person may have purchased, and breaching the
longstanding understanding of the relationship of trust between the
Secret Service and those it protects. I was appalled to hear a federal
prosecutor excuse a flimsy prosecution by announcing after the
defendant's acquittal that just getting the indictment was a great
deterrent. Trophy watches and television talk show puffery should not
be the trappings of prosecutors.
One of the core complaints the Department has against the McDade
law is that federal prosecutors would be subject to restrictive State
ethics rules regarding contacts with represented persons. A letter to
The Washington Post from the former Chairman of the ABA ethics
committee pointed out:
[Anti-contact rules are] designed to protect individuals like
Monica Lewinsky, who have hired counsel and are entitled to
have all contacts with law enforcement officials go through
their counsel. As Ms. Lewinsky learned, dealing directly with
law enforcement officials can be intimidating and scary,
despite the fact that those inquisitors later claimed it was
okay for her to leave at any time.
The McDade Law. This is not to say that the McDade law is the
answer. This new law is not a model of clarity. It subjects federal
prosecutors to the ``State laws and rules'' governing attorneys where
the prosecutor engages in his or her duties. A broad reading of this
provision would seem to turn the supremacy clause on its head. Does the
reference to ``State laws'' mean that federal prosecutors have to
comply with a state law requiring the consent of all parties before a
conversation is recorded, or a state law restricting the use of
wiretaps? Furthermore, by referencing only the rules of the state in
which the prosecutor is practicing, does the new law remove the
traditional authority of a licensing state to discipline a prosecutor
in favor of the state in which the prosecutor is practicing? The new
law subjects federal prosecutors not only to the laws and rules of the
state in which the attorney is practicing, but also to ``local Federal
court rules.'' What is a federal prosecutor supposed to do if the state
rules and local federal court rules conflict?
These are all significant questions and show that this law would
have benefited from hearings, debate and more careful drafting before
being inserted into an appropriations bill.
Hatch Bill, S. 250. At least one bill, the ``Federal Prosecutor
Ethics Act,'' S. 250, has been introduced to repeal the McDade law.
This bill is a ``cure'' that could produce a whole new set of problems.
First, this bill would grant the Attorney General broad authority
to issue regulations that would supersede any state ethics rules to the
extent ``that [it] is inconsistent with Federal law or interferes with
the effectuation of Federal law or policy, including the investigation
of violations of federal law.'' I am skeptical about granting such
broad rulemaking authority to the Attorney General for carte blanche
self-regulation.
Moreover, any regulation the Attorney General may issue would
generate substantial litigation over whether it is actually
``authorized''. For example, is a state rule requiring prosecutors to
disclose exculpatory information to the grand jury ``inconsistent
with'' federal law, which permits but does not require prosecutors to
make such disclosures? More generally, must there be an actual conflict
between the state rule and federal law or policy? Can the Attorney
General create conflicts through declarations and clarifications of
``Federal policy''? Does a state rule ``interfere with'' the
``investigation of violations of Federal law'' merely by restricting
what federal prosecutors may say or do, or is more required?
In addition to challenges concerning whether a Justice Department
regulation was actually authorized, violations of the regulations would
invite litigation over whether the remedy is dismissal of the
indictment, exclusion of evidence or some other remedy.
Second, S. 250 provides nine categories of ``prohibited conduct''
by Justice Department employees, violations of which may be punished by
penalties established by the Attorney General. These prohibitions were
initially proposed last year as a substitute for McDade's ten
commandments, which were extremely problematic and, in the end, not
enacted. With that fight already won, there is no useful purpose to be
served by singling out a handful of ``prohibitions'' for special
treatment, and it may create confusion. For example, one of the
commandments prohibits Department of Justice employees from
``offer[ing] or provid[ing] sexual activities to any government witness
or potential witness in exchange for or on account of his testimony.''
Does this mean that it is okay for government employees to provide sex
for other reasons, say, in exchange for assistance on an investigation?
Of course not, but that is the implication by including this
unnecessary language.
Although the bill states that the nine ``commandments'' do not
establish any substantive rights for defendants and may not be the
basis for dismissing any charge or excluding evidence, they would
invite defense referrals to the Department's Office of Professional
Responsibility to punish discovery or other violations, no matter how
minimal. In other words, these ``prohibitions'' and any regulations
issued thereunder could provide a forum other than the court for a
defendant to assert violations, particularly should defense arguments
fail in court. This could be vexatious and harassing for federal
prosecutors. The workload could also be overwhelming for OPF, since
these sorts of issues arise in virtually every criminal case.
Two of the nine prohibitions are particularly problematic because
they undermine the Tenth Circuit's recent en banc decision in United
States v. Singleton that the federal bribery statute, 18 U.S.C.
Sec. 201(c), does not apply to a federal prosecutor functioning within,
the official scope of his office. The court based its decision on the
proposition that the word ``whoever'' in Sec. 201(c) ["Whoever * * *
gives, offers, or promises anything of value to any person, for or
because of [his] testimony `` shall be guilty of a crime] does not
include the government. But the bill would expressly prohibit
Departmental employees from altering evidence or attempting corruptly
to influence a witness's testimony ``in violation of [18 U.S.C.
Sec. Sec. 1503 or 1512]''--the obstruction of justice and witness
tampering statutes. These statutes use the same ``Whoever * * *''
formulation as Sec. 201(c). By providing that government attorneys are
subject to Sec. Sec. 1503 and 1512, the bill casts doubt on the Tenth
Circuit's reasoning and may lead other courts to conclude that
Sec. 201(c) does, indeed, apply to federal prosecutors, thereby
reopening another can of worms.
Third, S. 250 establishes a Commission composed of seven judges
appointed by the Chief Justice to study whether there are specific
federal prosecutorial duties that are ``incompatible'' with state
ethics rules and to report back in one year. The new Commission's
report is not due until nine months after the Attorney General is
required to issue regulations. Thus, to the extent that the Commission
is intended to legitimize the Attorney General's regulations exempting
federal prosecutors from certain state ethics rules (by providing the
record and basis for the exemption), its purpose is defeated by the
timing of its report. In addition, the Commission's report must be
submitted only to the Attorney General, who is under no obligation to
adopt or even consider its recommendations in formulating her
regulations.
For these reasons and others, S. 250 is not the answer to resolving
the disputes over who sets the ethical rules for federal prosecutors
and what those rules should be.
judicial conference
The question of what ethics rules govern federal prosecutors is
only a small part of the broader question of what ethics rules govern
federal practitioner. The Justice Department has complained loudly
about the difficulty in multi-district investigations of complying with
the ethics rules of more than one state. Yet, private practitioners
must do so all the time. Even the Justice Department acknowledges that
its attorneys are subject to the ethics rules of both the states where
an attorney is licensed and where the attorney practices. No area of
local rulemaking has been more fragmented than the overlapping state,
federal, and local court rules governing attorney conduct in federal
courts. The Judicial Conference of the United States and the
Administrative Office of the Courts have been studying this problem for
some time. Their recommendations may come as early as this fall. I have
sent a letter to the Chief Justice requesting information on when the
Judicial Conference is likely to forward its final recommendations to
Congress.
Any ethics, legislation dealing with the particular problem of
federal prosecutors should be sensitive to the broader issues and not
foreclose reasonable solutions to these issues on recommendation of the
Judicial Conference.
The recommendations of the Judicial Conference on what ethics rules
are applicable to federal prosecutors and what those rules should be
would provide helpful guidance to Congress on this issue. While I
respect this Attorney General and the government attorneys at the
Department of Justice, I am not alone in my unease at granting the
Department authority to regulate the conduct of federal prosecutors in
any area the Attorney General may choose or whenever prosecutors
confront federal court or state ethics rules with which they disagree.
The problems posed to federal law enforcement investigations and
prosecutions by the McDade law may be real, but resolving those
problems in a constructive and fair manner will require thoughtfulness
on all sides.
Senator Thurmond. Now, before adjourning the hearing, I
would like to place in the record a copy of three editorials
from the Washington Post expressing concerns about the McDade
legislation. As one of the editorials aptly states, McDade can
be expected to hamper Federal law enforcement efforts greatly.
[The editorials follow:]
[GRAPHIC] [TIFF OMITTED] T0098.017
[GRAPHIC] [TIFF OMITTED] T0098.018
Senator Thurmond. I would also like to submit for the
record letters from individuals and groups that were written a
few months ago in opposition to McDade--Attorney General Janet
Reno and Deputy Attorney General Eric Holder; former Attorneys
General Griffin Bell, Elliott Richardson, Benjamin Civiletti,
Edwin Meese, III, Richard Thornburgh, and William Barr; FBI
Director Louis Freeh and DEA Administrator Thomas A.
Constantine; Director of the Office of National Drug Control
Policy Barry McCaffrey; the National District Attorneys
Association; the Fraternal Order of Police; the National
Association of Assistant United States Attorneys; the Federal
Bar Association; the Federal Criminal Investigators
Association; the National Black Prosecutors Association; and
the National Sheriffs' Association.
[The letters referred to are located in the appendix.]
Senator Thurmond. Additionally, I wish to place in the
record a letter and attachments from the National Conference of
Chief Justices, and a letter from the National Victims Center.
[The information referred to follows:]
The Supreme Court of South Carolina,
March 22, 1999.
The Hon. Strom Thurmond,
U.S. Senate, Russell House Office Building,
Washington, DC.
Dear Senator Thurmond: I would like to thank you, again, for taking
the time out of your busy schedule in January to listen to some of the
concerns of the South Carolina court system and the Conference of Chief
Justices (CCJ) with matters that may come before the United States
Senate in the 106th Congress. This letter is a follow-up to that
conversation and outlines our problems with S. 250, the Federal
Prosecutor Ethics Act, which I am informed will be the subject of a
hearing before the Subcommittee on Criminal Justice Oversight on March
24, 1999. S. 250, seeks to repeal the Ethical Standards for Federal
Prosecutors Act (Sec. 801 of the Omnibus Appropriations Bill for Fiscal
year 1999) that was signed into law on October 21, 1998, and will
become effective on April 19, 1999. We believe the Ethical Standards
for Federal Prosecutors Act merely codifies existing law (see United
States v. McDonnell Douglas Corporation, 132 F. 3d 1252 (8th Cir.
1998)) and that in repealing it, S. 250 in its present form would,
among other matters, allow self-regulation by the U.S. Department of
Justice in critical legal ethics matters. We in South Carolina and the
CCJ have a number of problems with this legislation and I have attached
a brief Fact Sheet on this issue for your perusal.
As Chairman of this Subcommittee, I would like to thank you for
your consideration of our concerns as you process this legislation. If
you and your staff have any further questions on these matters, please
feel free to call me or Edward O'Connell, Senior Counsel, at the
National Center for State Courts in the Washington office at 703-841-
0200.
Yours very truly,
Ernest A. Finney, Jr.,
Chief Justice.
______
Fact Sheet
28 u.s.c. Sec. 530b--the citizens' protection act
The Conference of Chief Justices opposes efforts to repeal the
Citizens' Protection Act, 28 U.S.C. Sec. 530B (also known as ``the
McDade Bill''). Section 530B, which became law on October 21, 1998,
requires attorneys for the federal government to comply with the rules
of professional ethics adopted by the state supreme courts.
Background: For more than a century, it has been understood that
all lawyers, including federal prosecutors, are required to abide by
state rules governing professional ethics. However, in recent years,
the U.S. Department of Justice has asserted that federal prosecutors
are not required to comply with these ethics rules.
This position was first asserted in June 1989, by then-Attorney
General Richard Thornburgh, in an internal memo to all DOJ litigators
(the Thornburgh Memo''). He argued that any disciplinary rule for the
profession which placed a burden on Department of Justice attorneys was
invalid under the Supremacy Clause of the Constitution, and that the
rule against contacts with represented parties (Model Rule 4-2) was
unenforceable against federal lawyers.
On August 4, 1994, the Department of Justice issued a final
regulation providing circumstances under which Department attorneys are
permitted to contact persons represented by counsel. The Conference of
Chief Justices opposed this regulation because it substituted the
Attorney General's regulation on lawyers for the independent control
and supervision that has historically been the province of the state
and federal judiciary.
Recently, the Eighth Circuit U.S. Court of Appeals struck down the
Department's 1994 regulation, holding that it was promulgated without
statutory authority. United States v. McDonnell Douglas Corporation,
132 F.3d 1252 (8th Cir. 1998). DOJ's position has also been rejected by
a number of other courts.
The McDade provision codifies these holdings. It is intended to
clarify that the DOJ cannot exempt itself from the ethical rules which
govern all other attorneys.
Legislative Status: The McDade provision takes effect 190 days
after enactment, or on April 19, 1999. Representatives of the
Department have indicated that the Department will likely use the delay
to seek to repeal the McDade provision.
specific concerns
Prosecutors should be required to behave ethically.
Prosecutors must be held to the highest standards of conduct
because of their extraordinary powers and unique role in our
justice system. Permitting the Justice Department to exempt its
prosecutors from the ethics rules which govern all other
attorneys creates a double standard. This sends precisely the
wrong message to the profession and the public.
DOJ self-regulation cannot guarantee the objectivity that
the current system delivers. Currently, ethics allegations
against federal prosecutors are subject to two levels of
independent, outside review: state ethics boards investigate
complaints and propose discipline if appropriate, state supreme
courts then rule upon those proposals. This arrangement
safeguards the integrity of the legal system in a way that
self-regulation cannot.
Section 530B does no more than codify existing practices.
The McDade Bill originally contained two additional provisions:
a citizens' review board and a list of specific rules for
prosecutors. The Conference of Chief Justices took no position
on these provisions. They did not become law. Section 530B
simply recognizes the traditional authority of state supreme
courts over ethics questions.
This historical system of state regulation of lawyers does
not impose undue problems for prosecutors. The courts have
already interpreted the ethics rules to allow for law
enforcement needs. For example, the courts have rejected the
claim that Rule 4.2 prohibits taping by undercover agents of
represented persons. In practice, there are only a tiny handful
of cases in which federal prosecutors have been disciplined
over the objections of DOJ.
State ethics rules do not form a hodgepodge of inconsistent
standards. Prosecutors can readily ascertain the rules which
apply to multidistrict Investigation or litigation. Since 1908,
standards of professional conduct recommended by ABA have been
the national professional model, adopted by states almost
universally. In practice, there are few conflicts between
ethics rules. DOJ has ample resources to provide a ``'hotline''
for prosecutors with questions about the ethics rules.
__________
National Victim Center,
Arlington, VA, September 28, 1998.
To Whom It May Concern: On behalf of the Board of Directors and
Staff of the Nation Victim Center, we wish to express our opposition to
the ``Citizens Protection Act'' (Formally H.R. 3396), a current
amendment to the recently passed Commerce, Justice, State and the
Judiciary appropriations measure (Title VII of H.R. 4276).
The National Victim Center, serving victims of all crimes, is the
largest non-profit organization in the nation. The Center works with
more than 10,000 victim-related organizations and agencies across the
country.
We are greatly over the likely repercussions of this measure. Apart
from the numerous negative consequences this measure holds for the
federal criminal justice system in general, we are deeply concerned
over its likely impact on victims of crime.
First and foremost, we strongly believe that the open-ended
structure and criteria suggested by the measure creates an open
invitation for procedural abuse by defendants at the expense of crime
victims--and at the expense of justice. The terms used to define the
conduct proscribed are so broad as to allow any defendant (or anyone
for that matter) to file an endless stream of unsubstantiated
complaints against U.S. Attorneys or other critical prosecutorial staff
members. Federal prosecutors, in particular, will be forced to spend
the majority of their time and resources responding to potentially
frivolous complaints rather than pursuing prosecutions. As a result,
criminal prosecutions may be delayed substantially, forcing crime
victims to languish indefinitely as they await justice.
The emotional anguish and unrelenting turmoil inflicted on the
lives of victims by the resulting delay will constitute nothing less
than a re-victimization of those victims. The time honored tenant that
``justice delayed is justice denied'' should apply not only for the
benefit of convicted murders, but for innocent victims as well.
We are equally concerned that the proposed measure will operate to
seriously undermine the privacy and confidentiality of crime victims
involved with criminal investigations and prosecutions. The Board,
newly created by the bill, would have sweeping powers to obtain
investigative files that include deeply personal and private
information about crime victims. Since the Board is required to conduct
its business in public, it is likely that this information will become
public. In some cases, such disclosures would cause serious additional
trauma and embarrassment to the victims. The prospect of such public
disclosure might deter crime victims from cooperating with
investigations and prosecutions, thus frustrating the ends of justice
and the interests of public safety.\1\
---------------------------------------------------------------------------
\1\ A study conducted by the National Victim Center by an
independent research firm indicated that the number one concern of rape
victims was that others, including the public, would learn that they
had been raped. Sixty-six percent (66 percent) of the rape victims
interviewed, said that they would be more likely to report their
victimization to police if there was a law prohibiting public
disclosure. (Emphasis added). National Victim Center, Rape in America:
A Report to the Nation, (1992).
---------------------------------------------------------------------------
Such divulgences might also violate the privacy rights of crime
victims guaranteed them by federal law. For example, defendants (and
the public for that matter) may be able to obtain information about the
past sexual history of rape victims that would otherwise be denied to
them under the federal rape shield law.\2\ In a similar vein, offenders
might be able to learn the whereabouts of victims and witnesses who are
``in hiding'' to escape the threat of further victimization of the
accused or convicted perpetrator. Considering the circumstances
surrounding many domestic violence and gang-related cases, disclosure
of residence information to the perpetrator through the proposed review
process would seriously jeopardize the safety and even the lives of the
crime victims (and witnesses) in question.
---------------------------------------------------------------------------
\2\ See, Fed. R. Evid. 412, [Sexual Offense Cases; Relevance of
Alleged Victim's Past Sexual Behavior Sexual Predisposition].
---------------------------------------------------------------------------
For the reasons set out above, we oppose the ``Citizens Protection
Act'' (Title VII of H.R. 4276), and urge the Members of the Senate, the
House, and the Conferees appointed to consider the measure, to strike
Title VII from the bill.
Thank you for your consideration of our position concerning this
matter.
Sincerely,
David Beatty,
Director of Public Policy.
Senator Thurmond. Further, I would like to submit a
statement by Senator Hatch upon his introduction of S. 250.
[The prepared statement of Senator Hatch follows:]
Statement of Senator Orrin G. Hatch
introduction of the federal prosecutor ethics act
Mr. President, I am pleased today to introduce an important piece
of corrective legislation--the Federal Prosecutor Ethics Act. This bill
will address in a responsible manner the critical issue of ethical
standards for federal prosecutors, while ensuring that these public
servants are permitted to perform their important function of upholding
federal law.
The bill I am introducing today is a careful solution to a
troubling problem--the application of state ethics rules in federal
court, and particularly to federal prosecutors. In short, my bill will
subject federal prosecutors to the bar rules of each state in which
they are licensed unless such rules are inconsistent with federal law
or the effectuation of federal policy or investigations. It also sets
specific standards for federal prosecutorial conduct, to be enforced by
the Attorney General. Finally, it establishes a commission of federal
judges, appointed by the Chief Justice, to review and report on the
interrelationship between the duties of federal prosecutors and
regulation of their conduct by state bars and the disciplinary
procedures utilized by the Attorney General.
No one condones prosecutorial excesses. There have been instances
where law enforcement and even some federal prosecutors, have gone
overboard. Unethical conduct by any attorney is a matter for concern.
But when engaged in by a federal prosecutor, unethical conduct cannot
be tolerated. For as Justice Sutherland noted in 1935, the prosecutor
is not just to win a case, ``but that justice shall be done. * * * It
is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to
bring about a just one.''
We must however, ensure that the rules we adopt to ensure proper
prosecutorial conduct are measured and well-tailored to that purpose.
As my colleagues may recall, last year's omnibus appropriations act
included a very controversial provision known to most of my colleagues
simply as the ``McDade provision,'' after its House sponsor, former
Representative Joe McDade.
This well-intentioned but ill-advised provision was adopted to set
ethical standards for federal prosecutors and other attorneys for the
government. In my view, it was not the measured and well tailored law
needed to address the legitimate concerns its sponsors sought to
redress. Nor was I alone in this view. So great was the concern over
its impact, in fact, that its effective date was delayed until six
months after enactment. That deadline is approaching. In my view, if
allowed to take effect in its present form, the McDade provision would
cripple the ability of the Department of Justice to enforce federal law
and cede authority to regulate the conduct of federal criminal
investigations and prosecutions to more than fifty state bar
associations.
As enacted last Fall, the McDade provision adds a new section 530B
to title 28 of the U.S. Code. In its most relevant part, it states that
an ``attorney for the government shall be subject to State laws and
rules * * * governing attorneys in each state where such attorney
engages in that attorney's duties, to the same extent and in the same
manner as other attorneys in that state.''
There are important practical considerations which persuasively
counsel against allowing 28 U.S.C. 530B to take effect unchanged. I
have been a frequent critic of the trend towards the over-
federalization of crime. Yet the federal government has a most
legitimate role in the investigation and prosecution of complex
multistate terrorism, drug, fraud or organized crime conspiracies, in
rooting out and punishing fraud against federally funded programs such
as Medicare, Medicaid, and Social Security, in vindicating the federal
civil rights laws, in investigating and prosecuting complex corporate
crime, and in punishing environmental crime.
It is in these very cases that Section 530B will have its most
pernicious effect. Federal attorneys investigating and prosecuting
these cases, which frequently encompass three, four, or five states,
will be subject to the differing state and local rules of each of those
states, plus the District of Columbia, if they are based here. Their
decisions will be subject to review by the bar and ethics review boards
in each of these states at the whim of defense counsel, even if the
federal attorney is not licensed in that state.
Practices concerning contact with unrepresented persons or the
conduct of matters before a grand jury, perfectly legal and acceptable
in federal court, will be subject to state bar rules. For instance, in
many states, federal attorneys will not be permitted to speak with
represented witnesses, especially witnesses to corporate misconduct,
and the use of undercover investigations will at a minimum be hindered.
In other states, section 530B might require--contrary to long-
established federal grand jury practice--that prosecutors present
exculpatory evidence to the grand jury. Moreover, these rules won't
have to be in effect in the district where the subject is being
investigated, or where the grand jury is sitting to have these effects.
No, these rules only have to be in effect somewhere the investigation
leads, or the federal attorney works, to handcuff federal law
enforcement.
In short, Section 530B will affect every attorney in every
department and agency of the federal government. It will effect
enforcement of our antitrust laws, our environmental laws prohibiting
the dumping of hazardous waste, our labor laws, our civil rights laws,
and as I said before, the integrity of every federal funding program.
Section 530B is also an open invitation to clever defense attorneys
to stymie federal criminal or civil investigations by raising bogus
defenses or bringing frivolous state bar claims. Indeed, this is
happening even without Section 530B as the law of the land. The most
recent example is the use of a State rule against testimony buying to
brand as ``unethical'' the long accepted, and essential, federal
practice of moving for sentence reductions for co-conspirators who
cooperate with prosecutors by testifying truthfully for the government.
How much worse will it be when this provision declares it open season
of federal lawyers?
What will the costs of this provision be? At a minimum, the
inevitable result will be that violations of federal laws will not be
punished, and justice will not be done. But there will be financial
costs to the federal government as well, as a result of defending these
frivolous challenges and from higher costs associated with
investigating and prosecuting violations of federal law.
All of this, however, is not to say that nothing needs to be done
on the issue of attorney ethics in federal court. Indeed, I have
considerable sympathy for the objectives values Section 530B seeks to
protect. All of us who at one time or another have been the subject of
unfounded ethical or legal charges, as I have been as well, know the
frustration of clearing one's name. And no one wants more than I to
ensure that all federal prosecutors are held to the highest ethical
standards. But Section 530B, as it was enacted last year, is not in my
view the way to do it.
The bill I am introducing today addresses the narrow matter of
federal prosecutorial conduct in a responsible way, and I might add, in
a manner that is respectful of both federal and state sovereignty. As
all of my colleagues know, each of our states has at least one federal
judicial district. But the federal courts that sit in these districts
are not courts of the state. They are, of course instrumentalities of
federal sovereignty, created by Congress pursuant to its power under
Article III of the Constitution, which vests the judicial power of the
United States in ``one supreme Court and in such inferior Courts as the
Congress may from time to time ordain and establish.''
As enacted, Section 530B is in my view a serious dereliction of our
Constitutional duty to establish inferior federal courts. Should this
provision take effect, Congress will have ceded the right to control
conduct in the federal courts to more than fifty state bar
associations, at a devastating cost to federal sovereignty and the
independence of the federal judiciary. Simply put, the federal
government, like each of our states, must retain for itself the
authority to regulate the practice of law in its own courts and by its
own lawyers. Indeed, the principle of federal sovereignty in its own
sphere has been well established since Chief Justice Marshall's opinion
in McCulloch v. Maryland [17 U.S. (4 Wheat.) 316, 1819].
However, the bill I offer today may only be a first step. For the
problem of rules for the conduct of attorneys in federal court affects
more than just prosecutors. It affects all litigants in each of our
federal courts, who have a right to know what the rules are in the
administration of justice. This is a problem that has been percolating
in the federal bar for over a decade--the diversity of ethical rules
governing attorney conduct in federal court.
Presently, there is no uniform rule that applies in all federal
courts. Rather, applicable ethics rules have been left up to the
discretion of local rules in each federal judicial district. Various
districts have taken different approaches, including adopting state
standards based on either the ABA Model Rules or the ABA Code, adopting
one of the ABA models directly, and in some cases, adopting both an ABA
model and the state rules.
This variety of rules has led to confusion, especially in
multiforum federal practice. As a 1997 report prepared for the Judicial
Conference's Committee on Rules of Practice and Procedure put it,
``Multiforum federal practice, challenging under ideal conditions, has
been made increasingly complex, wasteful, and problematic by the
disarray among federal local rules and state ethical standards.''
Moreover, the problem may well be made worse if Section 530B takes
effect in its present form. First, as enacted, Section 530B contains an
internal conflict that will add to the confusion. Section 530B provides
that federal attorneys are governed by both the state laws and bar
rules and the federal court's local rules. These, of course, are
frequently different, setting up the obvious quandary--which take
precedence? Finally, Section 530B might further add to the confusion,
by raising the possibility of different standards in the same court for
opposing litigants--private parties governed by the federal local rules
and prosecutors governed by Section 530B.
The U.S. Judicial Conference's Rules Committee has been studying
this matter, and is considering whether to issue ethics rules pursuant
to its authority under the federal Rules Enabling Act. I believe that
this is an appropriate debate to have, and that it may be time for the
federal bar to mature. The days are past when federal practice was a
small side line of an attorney's practice. Practice in federal court is
now ubiquitous to any attorney's practice of law. It is important,
then, that there be consistent rules. Indeed, for that very reason, we
have federal rules of evidence, criminal procedure, and civil
procedure. Perhaps it is time to consider the development of federal
rules of ethics, as well.
This is not to suggest, of course, a challenge to the traditional
state regulation of the practice of law, or the proper control by state
Supreme Courts of the conduct of attorneys in state court. The
assertion of federal sovereignty over the conduct of attorneys in
federal courts will neither impugn nor diminish the sovereign right of
states to continue to do the same in state courts. However, the
administration of justice in the federal courts requires the
consideration of uniform rules to apply in federal court and thus, I
will be evaluating proposals to set uniform rules governing the conduct
of attorneys in federal court.
Mr. President, the legislation I am introducing today is of vital
importance to the continued enforcement of federal law. Its importance
is compounded by the deadline imposed by the effective date of Section
530B. I urge my colleagues to join me in this effort, and support the
Federal Prosecutor Ethics Act.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the record following my remarks.
[GRAPHIC] [TIFF OMITTED] T0098.019
[GRAPHIC] [TIFF OMITTED] T0098.020
Senator Thurmond. Finally, I wish to place in the record a
copy of a bipartisan letter from members of the Senate
Judiciary Committee last year in opposition to McDade, and a
letter from Senators a few weeks ago seeking an additional
delay in the effective date of the legislation.
[The letters referred to follow:]
U.S. Senate,
Committee on the Judiciary,
Washington, DC, July 21, 1998.
The Hon. Ted Stevens, The Hon. Robert C. Byrd,
Chairman, Committee on Chairman, Ranking Member Committee
Appropriations, on Appropriations,
Washington, DC.
Washington, DC.
The Hon. Judd Gregg, The Hon. Ernest F. Hollings,
Chairman, Subcommittee on Commerce,
Justice, State and Related
Agencies, Washington, DC.
Ranking Member, Subcommittee on
Commerce, Justice, State and
Related Agencies, Washington, DC.
Dear Chairman Stevens: As you may know, the House Appropriations
Committee has approved the Commerce-Justice-State appropriations bill
for fiscal year 1999 which includes an amendment that could seriously
impair the effectiveness of federal prosecutors in their efforts to
enforce federal criminal laws and protect our communities.
Specifically, the amendment, which is very similar to H.R. 3396, the
``Citizens Protection Act of 1998,'' would subject federal prosecutors
to the state bar rules, and discipline, of any state in which they
work, and to a Congressionally devised ``Misconduct Review Board.''
These would be in addition to the already established Office of
Professional Responsibility and Department of Justice ethical rules
that federal prosecutors are required to follow.
By subjecting federal attorneys to State bar rules, Subtitle A of
this amendment would have the effect of forbidding federal prosecutors
in certain states from utilizing court approved and constitutional law
enforcement techniques related to undercover investigations, contact
with represented persons and cooperating witnesses, and the conduct of
the grand jury. Indeed, federal court victories in each of these areas
have been challenged as violating certain restrictive state rules of
procedure, which are framed as ``ethics'' rules, to chill the
enforcement of federal law. The most recent example is the use of a
State rule against testimony buying to brand as ``unethical'' the long
accepted, and essential, federal practice of moving for sentence
reductions for co-conspirators who cooperate with prosecutors by
testifying truthfully for the government. Use of these potentially
devastating State rules against prosecutors has been resisted by every
Attorney General for at least the last twenty years. The House
amendment would in practice cede to fifty State bar associations
control how federal prosecutions are to be conducted.
Subtitle B of the amendment would change the internal disciplinary
procedures the Department uses, substituting vague and disruptive
requirements for the Attorney General to follow. It also would impose
unreasonably short time requirements on the Attorney General to hear
and resolve complaints, and thus would likely unnecessarily interfere
with the effectiveness of these prosecutors and result in rushed and
incomplete investigations of the alleged wrongdoing. The amendment
would provide, as an available penalty, loss of the employees' pension
and retirement benefits--a severe sanction usually reserved only for
criminal offenses involving disloyalty or treason. Lastly, this title
would establish, as mentioned above, a Misconduct Review Board, which
duplicates existing procedures, utilizes an unconstitutional structure,
and provides virtually no due process rights to the accused employee.
The Department of Justice has weighed in strongly against the
proposal, noting that it ``constitutes an unwarranted and unnecessary
interference with the lawful and effective functioning of federal
attorneys and law enforcement agents.''
Improving the disciplinary process for federal prosecutors, without
hindering legitimate law enforcement investigative techniques and
practices, is an important and complex issue that deserves our
consideration. We stand ready to work with interested members of the
House and others on this matter.
At this time, the amendment adopted by the House Appropriations
Committee has not undergone the scrutiny that a proposal of this
magnitude should be afforded. No Senate bill on this issue has been
introduced, and the Judiciary Committee, the Committee of jurisdiction,
has thus not formally considered the bill or held hearings on its
merits. Therefore, we request your assistance in defeating any attempt
to add this legislative language as an amendment to the Commerce-
Justice-State appropriations bill, and in ensuring that this language
is not included in any conference report.
Sincerely,
Orrin G. Hatch, Patrick Leahy,
Chairman.
Ranking Member,
Jeff Sessions,
Ted Kennedy,
Strom Thurmond,
Herb Kohl,
Mike DeWine,
Dick Durbin,
Spencer Abraham,
Russ Feingold,
Fred Thompson,
Dianne Feinstein.
Jon Kyl.
__________
U.S. Senate,
Committee on the Judiciary,
Washington, DC, March 4, 1999.
The Hon. Ted Stevens, The Hon. Robert C. Byrd,
Chairman, Committee on Ranking Member, Committee on
Appropriations, U.S. Senate, Appropriations, U.S. Senate,
Washington, DC.
Washington, DC.
Dear Senator Stevens and Senator Byrd: As the Senate prepares to
consider supplemental appropriations for fiscal year 1999, the
undersigned members of the Judiciary Committee and other members of the
Senate urge you to include a modest, technical corrective provision
extending the delay in the effective date of certain legislation
relating to the regulation of federal prosecutors, which was included
in the fiscal year 1999 omnibus appropriations bill.
As you will recall, section 801 of the CJS appropriations
provisions of the fiscal year 1999 omnibus appropriations bill added
section 530B to title 28 of the United States Code, which was intended
to set ethical standards for federal prosecutors, and which included a
six-month delayed effective date. The intent of Congress in including
this six-month grace period was to provide sufficient time for the
resolution of concerns over the legislation, which had not been
considered by the Senate in any meaningful way. However, due to
arguably unanticipated events, the Congress has not been able to avail
itself of the grace period provided in the legislation.
It is our desire to work with our colleagues in the House to
resolve this important matter. However, we believe that it is in the
best interests of the Congress, the Department of Justice, and our
state and federal courts, to do so under the provisions of a grace
period that maintains the status quo of current law, as Congress
intended when the fiscal year 1999 omnibus appropriations bill was
enacted. For this reason, we urge you to include in the Senate version
of the supplemental appropriations bill the attached proposal,
extending the delay in the effective date of section 530B six months,
to October 21, 1999, and further urge you to request the House to
accede to this provision in conference.
We have attached language for your review and consideration, and we
thank you for your attention to this request. Should you have any
questions, please let us know, or have your staff contact Judiciary
Committee Chief Counsel Manus Cooney.
Sincerely,
Ted Kennedy,
Orrin Hatch,
Joe Biden,
Mike DeWine,
Jon Kyl,
Don Nickles,
Dianne Feinstein,
John Warner,
Herb Kohl. Strom Thurmond,
Jeff Sessions,
Spencer Abraham.
______
AMENDMENT NO. ____
Calendar No. ____
Purpose: To extend the period for compliance with certain ethical
standards for Federal prosecutors.
IN THE SENATE OF THE UNITED STATES--106th Cong., 1st Sess.
(no.) ______
(title)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
Referred to the Committee on ____________________ and ordered to be
printed
Ordered to lie on the table and to be printed
Amendment intended to be proposed by Mr. Hatch
Viz:
At the appropriate place, insert the following:
SEC.____.COMPLIANCE WITH ETHICAL STANDARDS FOR FEDERAL PROSECUTORS.
Section 801 of title VIII of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1999 (Public Law 105-277) is amended by
striking subsection (c) and inserting the following:
``(c) EFFECTIVE DATE.-The amendments made by this section shall
take effect 1 year after the date of enactment of this Act.''
Senator Thurmond. We will leave the hearing record open for
one week for additional materials to be placed in the record
and for follow-up questions.
Now, I want to express my deep appreciation to you
gentlemen for your presence here today and the great
contribution that you have made to this hearing. It is very
important. What you have had to say will be given every
consideration and I thank you for coming.
We now stand adjourned.
[Whereupon, at 4:15 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Questions and Answers
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Responses of Geoffrey C. Hazard, Jr., to Questions From Senator Leahy
Question 1. You have argued that ABA Rule 4.2 (the ``no contact''
rule) should apply to government attorneys, and that a corporation's
right to counsel is violated when federal prosecutors have ex parte
contacts with represented corporate employees. Your position raises two
concerns: First, that corporations could immunize themselves from
criminal investigation simply by employing in-house counsel, and
second, that government attorneys would cease the salutary practice of
supervising federal agents during the early stages of their
investigations. In your opinion, are these concerns well founded?
Answer 1a. This is a complicated issue that protagonists on either
side have oversimplified. Many government lawyers assert that
corporations routinely attempt to do this and succeed. Many in-house
counsel, including the lawyer sitting next to me at the hearing I
attended, assert that corporations have a right to do so. The following
response seeks to get closer to the truth of the matter.
First, a corporation can be a client and as such is entitled to the
protection provided by Rule 4.2 against being interrogated by opposing
counsel without the presence of its own lawyer. A corporation has no
physical existence and hence acts only through its employees. A first
issue is which employees ``personify'' the client for purposes of Rule
4.2.
It is generally agreed that top level management, including
directors--the so-called ``control group'' do personify the corporation
for this purpose. Decisional law establishes, at least to my
satisfaction, that ground-level employees ordinarily do not personify
the corporation, except, as establishes in Upjohn Co. v. United States,
449 U.S. 383 (1981), where they have actually consulted the company's
lawyer (whether in-house or outside counsel) or where they have been
given directions by that such a. Some corporation lawyers say that all
employees always personify the corporation. Some lawyers in specific
cases have written to Government lawyers stating that they represent
all the employees and hence that the Government may not talk with any
employees. In my opinion these ``blanket immunity'' claims are
unsupported by law and are unprofessional pretenses to an immunity that
corporations neither have nor should have.
Within the foregoing framework a difficult issue is the situation
of mid-level employees such as plant or office managers or assistant
managers or foremen. This issue often turns on specific facts.
Employees at this level may or may not be considered to ``personify''
the corporation for purposes of Rule 4.2, depending on circumstances,
on the particular interchange, on what the participants actually
testify to concerning the interchange, and on the tendency of
decisional law in the local jurisdiction. If personnel in this category
are held to personify the corporation, then direct contact by an
opposing counsel is not permitted; if they are held not to personify
the corporation, the conversation are not improper.
These situations are necessarily uncertain and therefore fraught
with risk for a lawyer making the contact. Not only may there be an
ethical violation but, as a consequence of such a violation, evidence
obtained through the interview may be irreparably ``tainted'' (and
hence excluded) and the offending lawyer may be disqualified. These
risks fall not only on Government lawyers but also private lawyers, for
example, plaintiffs' lawyer seeking to investigate an accident. See,
e.g., Neisig v. Team I, 78 N.Y. 2d 363 (1990).
In my opinion Rule 4.2 itself should be changed to reduce this
risk. The Rule could provide, for example, that a lawyer does not
violate the Rule if the person with whom contact was made did not
object, if it was not evident that the person was part of the control
group, and if inquiry was avoided inquiry into attorney-client
communications with the corporation's counsel. The American Bar
Association Ethics2000 Commission, of which I am a member, is presently
working on some such modification. However, many lawyers--especially
lawyers for corporations--oppose any such change and it is uncertain at
present what reformation, if any, will emerge, I repeat that the
problem in this respect is as difficult for private lawyers as for
Government lawyers. However, it might be appropriate for Congress to
enact a specific rule applicable to Government lawyers.
Still within the foregoing framework, the ethics rules provide that
if the person contacted has his or her own counsel, then consent from
that lawyer prevails. Comment [4] to Rule 4.2 states: ``If an agent or
employee of the organization is represented in the matter by his own
her own counsel, the consent of that counsel to a communication will be
sufficient for purposes of this Rule.'' In my opinion Government
lawyers have not taken advantage of this provisions as often as they
might. Obviously an investigator cannot as a practical matter make this
suggestion in routine inquiries to corporate employees. On the other
hand, this provision could be useful when dealing with a witness who
obviously has a lot of relevant information.
I suspect there is reluctance to use this approach not only because
of the inconvenience but because of fear that the respondent's own
lawyer would advise the respondent to refuse to talk unless immunity
from prosecution is provided. This consequence makes the point that
corporate employees, if they have proper legal advice, often would
refuse to talk. That is, the Government investigators are often trading
on legal ignorance. Corporate employees often are at risk because the
statutory penalties in fields such as environmental law have been drawn
so widely as to create real risks for middle level personnel.
Answer 1b. This issue is real and difficult and opens up a deep
conflict in the law's attitude toward investigations. On one hand, in
my opinion it is highly desirable that Government lawyers supervise
investigations by federal agents. In general and usually, supervision
by lawyers will result in more closely restrained investigations, less
duplicity in dealing with suspects, and so forth. This is because--no
matter what public opinion may be--lawyers generally adhere closer to
the law governing such matters than do nonlawyer investigators, and
they certainly know the rules better and the risks (to successful
prosecution) of violating the rules. On the other hand, if a Government
lawyer supervises an investigation, then the investigation is governed
by the tight constraints in Rule 4.2. This is because activity done
under a lawyer's supervision is generally governed by the same
standards as activity of the lawyer personally.
If an investigation is conducted by a nonlawyer (such as an FBI
agent) then the only constraints are those imposed by the general law,
particularly Constitutional limitations formulated by the Supreme Court
under the Due Process clause. Under that body of law, a witness or
suspect can be questioned, including secret taping with a ``wire,''
wire-tapped, and questioned by someone pretending to be a friend (such
as someone in the same jail cell). None of this is permitted under the
Rule 4.2 regime. Since FBI agents are not in lawyer employment
classification, they are nonlawyers for purposes of these rules, even
though they may have gone to law school.
Thus, there is strong practical incentive to avoid supervision of
an investigation by Government lawyers, particularly Department of
Justice lawyers and legal staff of local U.S. Attorneys. Perhaps
needless to say, this gap in the rules governing investigations also
creates serious ``turf'' conflict between the Department of Justice and
the FBI. Top officials of both agencies are likely to deny any such
conflict. At the same time, I am sure that the FBI agents are likely to
deny any such conflict. At the same time, I am sure that the FBI agents
in general like the idea of being free of DoJ supervision, whereas the
DoJ lawyers in general prefer being in charge of investigation of
matters which they eventually may have to prosecute.
I know of no good solution to the foregoing conflict in the law's
attitude toward Government investigations. I am sure that folks
concerned about law enforcement would strongly resist imposing Rule 4.2
on all Government investigations. I am sure that folks concerned with
civil liberties would strongly resist eliminating the constraints that
Rule 4.2 now imposes. Indeed, the latter group probably would wish to
extend some such restraints to all Government investigations, whether
lawyers supervised or not.
The most promising accommodation may be in the modifications of
Rule 4.2 that the ABA Ethics2000 Commission is now considering. I
should add that opinion within the Commission is probably divided on
the issue. Hence, it is uncertain what recommendation the Ethics2000
Commission may make.
Question 2. Proponents of the McDade provision contend that it does
nothing more than codify existing law with respect to rules governing
attorney conduct. Do you agree? If not, why not?
Answer 2. Yes. In my opinion that is the effect of the McDade
provision. However, codification of state ethics rules incorporates the
conflicts described above. The McDade rule provides for ``dynamic
conformity'' between the rules governing Government lawyers the rules
prescribed by state law. That is, as state law rules are changed, the
rules governing Government lawyers also change. In my opinion that is
as it should be. The state ethics rules will change over time, to meet
newly encountered problems and provide more definite solutions to old
issues previously not resolved.
I think Government lawyers should be governed by ethics rules and
that the governing ethics rules ought to remain those prescribed by the
states. I also think that in some states, under prodding from some
sectors of the bar, the courts have adopted provisions inappropriately
protective of lawyers. However, as Nicholas Katzenbach observed years
ago in another context, that is the price of federalism. In my opinion,
which is shared my many ecademic observers and some members of the bar,
Rule 4.2 is overly protective of lawyer interests and inadequately
protective of the public interest in law enforcement. However, that is
a seriously debatable question both within the legal profession and in
the general public arena.
If the ABA Ethics2000 makes a suitable adjustment to Rule 4.2, the
problem may be solved or least its intensity moderated. If no such
adjustment is made, or if such an adjustment is not adopted by the
states, Congress could address the problem anew. However, the problem
will not become any simpler through passage of time.
Question 3. Under current law, can Federal courts authorize Federal
prosecutors to do things that State ethics rules prohibit, or exempt
Federal prosecutors from doing things that State ethics rules require?
How, if at all, does the McDade law affect the authority of Federal
courts to set their own rules of conduct that differ from State ethics
rules?
Answer 3. In general, federal courts cannot do this. However, this
problem too is complicated. For one thing, some federal courts have
adopted ethics rules that are different from those operative in the
state where the courts sits. This strikes me as foolish and potentially
dangerous to lawyers, Government lawyers are well as those in private
practice. Where such is the federal rule, a lawyer could be doing
something in connection with federal litigation that is prohibited by
the applicable state ethics rules, and vice versa. Surveys under
auspices of the Federal Judicial Conference reveal these discrepancies.
(A couple of federal courts adopt the 1908 ABA Canons of Ethics, which
have been now twice superseded!) The Standing Committee on Rules of
Practice and Procedure of the Judicial Conference (of which I am
honored to be a member) is now considering a Rule, binding on the
federal courts, that would require ``dynamic conformity'' to the local
state rules. this seems to me a desirable proposal.
A subcategory of this problem is where the federal court allows--or
refuses to condemn--conduct that arguably violates the state rules, and
then the state disciplinary authority undertakes to reexamine the
matter. Here the problem typically results not from a difference in the
rules but a difference in their interpretation or in interpretation of
the facts to which the rule is being applied. This sequence often
results because the losing party before the federal judge takes the
issue to the state disciplinary authority. (A similar issue can arise
regarding conduct of private lawyers, and has in fact arisen in a
particularly deplorable way in a case in which I have been consulted.)
This situation is rare but generally very wrong in my opinion.
In my opinion an issue of professional conduct resolved in federal
court should not be subject to reconsideration by the state
authorities, whether state disciplinary authority or the local
prosecutor--some of these cases implicate criminal law. An exception to
this could be conduct relevant to a larger pattern of professional
misconduct by the lawyer. It has been suggested to the Standing
Committee (mentioned above) that it should consider such a provision.
Question 4. Does the McDade law affect in any way the authority of
the U.S. Judicial Conference to prescribe uniform national rules for
attorney conduct in Federal courts under the Rules Enabling Act? Does
the McDade law affect in any way the authority of Federal district
courts to prescribe local rules for attorney conduct?
Answer 4. In my opinion the McDade does limit the authority
conferred under the Enabling Act. The Enabling Act confers authority
concerning ``rules of practice and procedure.'' The McDade provision
covers ``rules of professional ethics.'' There is some overlap because
many state rules of professional ethics address conduct that is carried
out through rules of practice and procedure. For example, the rules of
professional conduct in most states impose obligations toward the
courts. See particularly Rules 3.3 and 3.4. The Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure have provisions
on the same subjects. The risk of conflict is small, however, chiefly
because the rules of professional conduct, particularly the ABA Model
Rules, were drafted with an eye to the interaction between the rules of
ethics and the rules of procedure.
Perhaps more important, many aspects of the rules of professional
ethics concern lawyer conduct that, in my opinion, could not properly
be characterized as involving ``practice and procedure'' in the federal
courts. For example, in my opinion investigations prior to commencement
of litigation are governed by the McDade provision, particularly
because that provision incorporates rules like Rule 4.2, but would not
properly be considered as ``practice and procedure'' in the federal
courts. Accordingly, in my opinion the Enabling Act does not confer
authority for the Judicial Conference to change some of the
consequences mandated by the McDade Act. In my opinion that is true of
regulation of lawyer conduct in the pre-litigation stage of federal
investigations. That is, this stage involves Government lawyer conduct
regulated by the McDade Act but does not involve ``practice and
procedure'' within the scope of the Enabling Act.
Question 5. In practice, and as codified in an ABA rule, when a
lawyer licensed in a State appears in the court of another
jurisdiction, the ethics rules of the forum govern the lawyer's
conduct, not the rules of the licensing State. This suggests that the
ethics rules of the federal court in which a federal prosecutor is
practicing ought to govern the conduct of federal prosecutors. Do you
agree?
Answer 5. Yes, in my opinion. In general that approach applies to
private lawyers as well. Thus, the conduct of a Maryland lawyer who is
participating in a case in Virginia courts is governed by the Virginia
rules, if the matter relates to the litigation as distinct from
transactional aspects occurring outside of court and if there is
conflict between the two rules.
__________
Responses of Eric Holder to Questions From Senator Leahy
Question1. A subcommittee of this Committee held a hearing on March
24th on the new McDade law. Deputy Attorney General Eric Holder and two
United States Attorneys testified that the McDade law would cause
``significant problems'' for federal civil and criminal law
enforcement. The McDade law went into effect on April 19th. Although I
appreciate that it may be too soon to tell, are you aware of any
significant problems: that have resulted in the last three weeks as a
result of the new law?
Answer 1. Impact of Section 530B: The Department's assessment of
the full impact of Section 530B is ongoing, and there are many issues
about the scope and interpretation of Section 530B that are currently
in litigation or are likely to be litigated in the near future. To
date, however, the impact of Section 530B has been for the most part
exactly what the Department predicted:
(1) The Amendment has caused tremendous uncertainty because
most state bar rules have not been interpreted as applying to
government attorneys and are vague, so attorneys simply do not
know if their conduct is permissible or not; not surprisingly
that creates a tremendous chilling effect and interferes with
our ability to enforce the law.
The uncertainty is increased because we must frequently
compare conflicting bar rules. Department attorneys, who are
often licensed in multiple states, working in other states, and
supervising investigations that span many states, must engage
in a complex analysis to determine what rules should apply to
particular conduct. The Department's regulation implementing
the McDade Amendment provides guidance to attorneys, but the
area of choice-of-law with respect to state ethics rules
remains complex. Department attorneys often must seek guidance
in determining what rules apply or must divert their scarce
time to research on what rules may apply to particular conduct.
The clear impact of this is to delay the investigation.
Moreover, the guidance that the Department provides is in a
sense of less value to its attorneys than the guidance it can
provide in other areas. In attempting to interpret Sec. 530B,
we can advise Department attorneys as to our best reading of
the statute, but cannot protect them from the personal
consequences if a court or disciplinary committee takes a
different view. Under Sec. 530B, unlike any other statute to
which the Department might object on policy grounds, it is the
individual government attorney, rather than the government who
pays the price for misinterpreting the law. Accordingly,
especially with respect to close questions arising under the
statute, attorneys are chilled even from engaging in conduct
that is in the best interests of a case and consistent with
what we believe to be a correct interpretation of the law.
(2) The Amendment creates a rift between agents and
prosecutors, because the Amendment, in practice, restricts
prosecutors from supervising agents. This is not a helpful
development in law enforcement because it is critically
important that investigators and prosecutors work together,
particularly on complex cases. We are already seeing evidence
of this rift as investigators develop cases on their own,
relying on well-established and perfectly legitimate federal
law, without the input of prosecutors in order to avoid the
restrictions prosecutors may be subject to under state ethics
laws.
Moreover, because Section 530B limits the ability of
prosecutors to speak with those who may have evidence of
wrongdoing, particularly corporate employees, prosecutors have
no choice but to use the grand jury subpoena to obtain the
evidence, although a simple conversation might provide all that
was needed. The Department believes that Section 530B is
causing an increase in the use of grand jury subpoenas, but it
does not yet have empirical evidence to support this claim.
(3) The Amendment has prevented attorneys and agents from
taking legitimate, traditionally accepted investigative steps,
to the detriment of pending cases. The most obvious effect on
law enforcement has been in decisions by attorneys and
investigators not to take particular investigative steps out of
concern that such steps, such as obtaining evidence by
consensual monitoring or speaking with corporate employees
about potential corporate misconduct, may violate some state's
bar rules.
There have been several examples of the impact already. In
some states, Department attorneys are refraining from
authorizing tape recordings by informants or law enforcement
agents operating undercover. Federal law clearly permits this
routine law enforcement activity, referred to as consensual
monitoring. However, one state bar has issued a brief ethics
opinion and has verbally advised Department attorneys that, if
they participate in or authorize a consensual monitoring, they
will violate the state bar rule prohibiting the use of fraud or
deceit; this state's interpretation appears to be similar to
the highly restrictive (and, we believe incorrect) view of the
Oregon bar, which has interpreted its bar rules to prohibit
attorney participation in sting operations (Oregon has recently
issued a new opinion which addresses the issue of an attorney
tape recording a conversation but does not resolve the issue of
sting operations). In another state, Department attorneys have
been reluctant to authorize consensual monitoring because of
state criminal law or state ethics rules that could be
interpreted to prohibit the conduct. Before proceeding with the
action they contacted the local District Attorneys office and
others to be sure they wouldn't be prosecuted for their
actions.
As noted above, state rules regarding contacts with
represented persons continue to be a problem for Department
attorneys. In many cases, state rules are unclear or appear to
prohibit traditionally accepted, constitutionally permissible
investigative activities. In several cases, Department
attorneys have refrained from, or been advised not to be
involved in questioning targets and witnesses represented by
counsel or defendants, even though law enforcement agents are
permitted to engage in the same conduct. The most difficult
situation arises in investigations of corporate misconduct
because the law concerning which employees a government
attorney may speak with is unclear.
The Amendment has also limited the Department's ability to
investigate continuing criminal activities and such offenses as
witness tampering and obstruction of justice. For instance, in
one case, Department attorneys received information that an
indicted defendant was seeking to intimidate or bribe a
witness. The attorneys did not feel that they could, under the
relevant interpretations of the state's ethics laws, use an
informant to find out more about the defendant's plans.
Although state rules on communications with represented
persons remain the most significant problem, defendants are
also-using other bar rules offensively to claim that legitimate
cases or evidence should be thrown out of court. In one case,
defense counsel unsuccessfully sought dismissal of a drug
indictment and other sanctions by claiming that, under the
McDade Amendment, Department attorneys violated state ethics
rules related to trial publicity because an arresting officer--
a state trooper--talked to a reporter.
In another instance, on the eve of trial a defendant filed a
motion to dismiss the indictment in a case for failure to
present ``material evidence'' to the grand jury in violation of
Rule 3.3(d) and 3.8(d). The defendant argued that the McDade
amendment, by requiring compliance with state bar rules,
altered existing Supreme Court law on what evidence must be
presented to the grand jury. We argued that we had complied
with existing Supreme Court law and the court denied the
motion.
(4) Defendants are raising Section 530B in cases to interfere
with prosecutions. The Department believes that Section 530B
should be interpreted not to conflict with other federal laws
and not to elevate state substantive, procedural, and
evidentiary rules over established federal law. The
Department's regulations make clear that Section 530B mandates
compliance with state bar ethical rules, not the host of other
rules that govern each state's judicial system. Nonetheless, as
the Department has predicted, it is being forced to litigate
these claims by defendants. A number of defendants have argued
that state bar rules prohibit the use of cooperating witness
testimony. The Department has not lost on this issue to date.
As we have noted in the past, the Department continues to
litigate against the application of state bar rules that
provide additional protections to attorneys (and not others)
who are subpoenaed by federal prosecutors. These rules give
procedural or other advantages to attorneys and are not part of
established federal law.
The Department expects litigation concerning the McDade
Amendment to be wide-ranging because defense counsel have every
incentive to seek broad interpretations of the Amendment. In
one case currently being litigated, a defendant is arguing that
Section 530B requires compliance with state procedural rules
that prohibit or limit the removal of cases from state court
into federal court.
Question 2. I recently introduced a bill that addresses the
Department's most pressing concerns respecting the McDade law. S. 855,
The Professional Standards for Government Attorneys Act of 1999, would
do two things. First, it would clarify the professional standards that
apply to Government attorneys. Second,, it would ask the Supreme Court
to prescribe a uniform national rule for Government attorneys with
respect to contacts with represented persons. I know that the
Department has been reviewing S. 855 for several weeks now. Do you
support the basic approach of this legislation?
Answer 2. S. 855 is a good approach that addresses the two most
significant problems caused by the McDade Amendment--confusion about
what rule applies and the issue of contacts with represented parties.
The Department looks forward to working with the Committee to solve
these problems.
Question 3a. Under current practice and ABA model rules, the ethics
rules of the court in which a lawyer is appearing govern the lawyer's
conduct, not necessarily the rules of the licensing State. This
suggests that the ethics rules of the federal court in which a federal
prosecutor is practicing ought to govern the conduct of federal
prosecutors. Do you agree?
Answer 3a. Yes.
Question 3b. More generally, do you agree that the choice-of-law
provisions in S. 855 simply codify existing practice with respect to
rules governing attorneys conduct?
Answer 3b. The Department strongly supports clear choice-of-law
rules, so that all attorneys know what rules govern their conduct. The
ABA Model Rules address most situations by making clear that the rule
of the court before which an attorney is litigating should govern an
attorney's conduct. Unfortunately, only a small minority of states have
adopted that rule. Moreover, the ABA Model Rules do not directly
address what is perhaps the most difficult choice-of-law issue--what
rules apply to an investigation that is a collaboration of several
attorneys who may be licensed in different states. The choice-of-law
provisions of S. 855 do adopt the ABA's model rule approach.
Question 3c. Please let me know the respects in which the McDade
law departs from existing law and practice with respect to rules
governing attorney conduct?
Answer 3c. How far the McDade Amendment will stray from current law
remains to be seen because the provision is so vague. Here are some of
our concerns:
First, under pre-McDade law, it was relatively clear that
Department attorneys need comply with the rules of the court before
which they are litigating or the state where they are licensed;
language of the McDade Amendment leaves that in doubt.
Second, pre-McDade, where a state bar rule went beyond the
regulation of ethics and sought to alter substantive, evidentiary, or
procedural rules in federal court, the Department has been able to
challenge the rule in court, which it has done with varying success.
Our ability to do this in the future remains to be seen.
Third, prior to the McDade Amendment, where a state bar rule
purported to regulate ethics by unduly interfering with the enforcement
of federal law, the Department has argued that the federal courts
should (1) interpret the rule in the light of federal practice; (2)
create an exception for law enforcement; and/or, (3) construe the rule
narrowly in order to avoid running afoul of the Supremacy Clause. These
arguments are more difficult to make now, even when a federal judge
believes a state ethics rule will interfere with the legitimate
enforcement of federal law.
Fourth, with respect to the area of contacts with represented
persons, the McDade Amendment supersedes the Department's ethics rule
on communications with represented persons. The Department has proposed
an interim final rule that would replace the Department's regulation on
communications with represented persons. The new rule is intended to
provide guidance to Department attorneys about what rule applies. It
does not address communications with represented persons.
Question 4. In a letter that you and the Deputy Attorney General
sent last year to Chairman Henry Hyde on the proposed McDade law, you
discussed the ongoing consideration by the Judicial Conference of rules
governing attorney conduct in federal court, and noted that ``the Rules
Enabling Act process is the one established by Congress to consider
these kinds of issues. It would be premature at best to prejudge the
outcome of that deliberative process.''
a. Does the Department support the approach taken in S. 855, which
is consistent with the Rules Enabling Act, or does it maintain that the
authority to make and enforce ethical rules for federal prosecutors
should rest with the Department?
b. As between the U.S. Judicial Conference and the Department of
Justice, would you agree with me that the Judicial Conference is more
disinterested with respect to the appropriate standards of conduct for
federal prosecutors?
Answer 4 a and b. The Department has worked with the Conference of
Chief Justices, the ABA, and others to come up with a rule on contacts
with represented persons that is fair and effective. The Department
believes that the Judicial Conference, under the Rules Enabling Act, is
an appropriate forum to discuss and resolve the longstanding issues
related to Rule 4.2 and we look forward to participating, as we have,
in that process.
Question 5. Does the McDade law affect in any way the authority of
the U.S. Judicial Conference to prescribe uniform national rules for
attorney conduct in Federal Courts under the Rules Enabling Act? Does
the McDade law affect in any way the authority of Federal district
courts to prescribe local rules for attorney conduct?
Answer 5. The Department does not believe, that the McDade
Amendment in any way affects the authority of the Judicial Conference
or of local federal courts to develop rules of practice in federal
courts.
Question 6. As you know, the Administrative Office of the Courts
has spent many years reviewing the case law and studying the rules
governing attorney conduct in the federal courts. It has found that
most conflicts between state and local federal court rules fall into
just a few core areas, including contacts with represented persons. In
connection with which of these areas of conflict has the Department
issued regulations and with which has it refrained from issuing
regulations?
Answer 6. Of the 10 rules identified by the Judicial Conference,
the Department has issued an ethics regulation in only one of these
areas--the area of contacts with represented persons, where we have had
serious problems.
Question 7. What new instructions or guidance, if any has the
Department given to Assistant United States Attorneys with respect to
their professional conduct under the McDade Amendment?
Answer 7. The Department has published regulations to implement the
Amendment and to provide guidance to Department attorneys about what
rule applies to particular conduct. We have also trained our
Professional Responsibility Officers and are in the process, of
training our attorneys, on compliance with the Amendment. In addition,
we have created a new, centralized Professional Responsibility Advisory
Office (PRAO) to provide consistent guidance and assistance to
Department attorneys on issues of professional ethics.
Question 8. Senator Hatch has introduced a bill, S. 250, which
would grant the Department broad authority to issue its own ethics
rules where a state's rules were ``inconsistent with Federal law'' or
``interfere[d] with the effectuation of Federal law or policy.'' Please
identify those state ethics rules which the Department would
``supersede' should this bill become law, and describe the regulations
which the Department would likely issue.
Answer 8. S. 250 sets a standard--``inconsisten[cy] with federal
law or ``interferen[ce] with the effectuation of federal law or
policy''--that the Department would have to meet in order to seek
relief from state bar rules, whether via regulation or court order. If
enacted, the Department would have to review that standard to determine
what circumstances meet that test. As noted above, contacts with
represented persons is the only area in which the Department has issued
its own regulation, and the one area where the Department has had
serious, longstanding problems.
Additional Submissions for the Record
----------
American Corporate Counsel Association,
Washington, DC, March 31, 1999.
Re: Hearing on The Effect of State Ethics Rules on Federal Law
Enforcement.
Hon. Strom Thurmond,
Committee on the Judiciary, U.S. Senate, Washington, DC.
Dear Senator Thurmond: Pursuant to the Chairman's request,
submitted is additional evidence to be entered into the record for the
hearing on ``The Effect of State Ethics Rules on Federal Law
Enforcement,'' conducted on March 24, 1999 by the Senate Subcommittee
on Criminal Justice Oversight of the Judiciary Committee.
I thank the Chairman again for his gracious invitation to the
American Corporate Counsel Association to testify on such an important
issue for all the legal profession.
Very truly yours,
Frederick J. Krebs,
President.
______
American Bar Association,
Chicago, IL, February 22, 1999.
Dear Senator: One of the significant provisions in last year's
omnibus appropriations bill, was The Ethical Standards for Prosecutors
Act, P.L. 105-277, Sec. 801. This provision, popularly known as the
``McDade-Murtha provision,'' makes it clear that federal prosecutors,
like all other lawyers are subject to existing state laws and ethics
rules governing attorney conduct. The effective date of the Act was
delayed for 180 days to April 19, 1999. The American Bar Association,
the Conference of Chief Justices and the American Corporate Counsel
Association strongly support this provision. We urge you to oppose any
proposals to weaken it or prevent it from taking effect.
Section 801, as passed, does not represent a change in the law.
Since the founding of the Republic, the licensing and regulation of
lawyers has always been the exclusive province of the states and the
District of Columbia. The states and not the federal government license
all lawyers, including federal prosecutors. It is states, under the
authority of their highest courts, that adopt rules of professional
responsibility to make sure all lawyers, regardless of their areas of
practice, practice ethically. Federal prosecutors, like state
prosecutors, have been disciplined under this system since the
licensing of lawyers began. The independent review of state courts over
the licensing of lawyers and the supervision of their conduct is an
important check on misconduct and overreaching by attorneys for the
federal government.
Section 801 is necessary because, in recent years, the U.S.
Department of Justice has sought to exempt its lawyers from the state
supreme courts' independent supervision. This would make these lawyers
the only lawyers in America not subject to ethical regulation by a
state court. In 1989, then-Attorney General Richard Thornburgh issued a
memorandum to all U.S. Attorneys expressing the view that federal
prosecutors from state ethics rules uniformly prohibiting unauthorized
contact with represented persons.
Last year, a federal appeals court struck down the Reno regulation
on the grounds that it was beyond the Attorney General's authority to
issue the regulation. The Court of Appeals for the Eighth Circuit held
that no law ``expressly or impliedly gives the Attorney General the
authority to exempt lawyers representing the United States from the
local rules of ethics which bind all other lawyers appearing in that
court of the United States.'' Section 801 makes clear that the justice
Department may not unilaterally exempt itself from ethical rules
imposed upon all lawyers by the judiciary of each state and the local
federal court.
Some who are opposed to Section 801 complain that it will unduly
burden federal prosecutors. We reject any suggestion that acting
ethically interferes with the prosecutorial function. Prosecutors are
obligated above all to serve justice, and compliance with ethics rules
advances that end while inspiring trust among the bench, the bar and
the public.
Moreover, as a practical matter, the ethics rules rarely present
problems for federal prosecutors. The courts have repeatedly
interpreted these rules to allow prosecutors to do their jobs, and
there are seldom conflicts among the various state rules which affect
prosecutors. Since 1908, standards of professional conduct recommended
by ABA have been the national professional model, adopted by states
almost universally. As a result, there are only a tiny number of cases
in which federal prosecutors have ever been disciplined over the
objections of the Department of Justice.
All lawyers should continue to be held to the same standards of
ethical conduct. Section 801 is not a radical departure in the law.
Instead, it prevents the Department of Justice from substituting its
regulation of its employees' conduct for the control and supervision
that historically have been the province of the state and federal
judiciary.
We urge you to oppose efforts to weaken or repeal Section 801.
Respectfully yours,
Philip S. Anderson.
______
Caterpillar Inc.,
Peoria, IL, March 9, 1999.
Re: S. 250.
The Hon. Peter G. Fitzgerald,
U.S. Senator, Washington, DC.
Dear Senator Fitzgerald: I am writing to urge your opposition to
legislation recently introduced by Senator Orrin Hatch, S. 250, which
repeal the Ethical Standards for Federal Prosecutors provisions that
were included in last year's omnibus spending bill, P.L. 105-277.
The Ethical Standards provisions (also known as the ``McDade
provisions'') make it clear that federal prosecutors are subject to
existing state supreme court ethics rules governing attorney conduct.
These provisions merely codify the longstanding principle that the
regulation of the conduct of attorneys--including government
attorneys--is the province of the states, which admit them to practice,
adopt rules for their conduct and discipline them for violations of
those rules.
S. 250 would effectively allow the Department of justice to
unilaterally exempt its attorney from their longstanding professional
obligation to honor these state ethics rules. Permitting the Department
to exempt its prosecutors from the ethics rules that govern all other
attorneys creates a double standard and sends the wrong message to the
profession and the public. It would also lessen carefully crafted
protections for people and entities under investigation. We at
Caterpillar have long believed that the same ethical standards should
apply to government attorneys, in-house counsel and outside counsel.
I urge you to oppose S. 250 or any similar effort to lower the
ethical standards applicable to attorneys.
Sincerely,
R.R. Atterbury.
______
Chamber of Commerce of the
United States of America,
Washington, DC, March 30, 1999.
The Hon. Strom Thurmond,
U.S. Senate, Washington, DC.
Dear Senator Thurmond: On behalf of the U.S. Chamber of Commerce,
the world's largest business federation, representing more than three
million businesses of every size, sector, and region, I am writing to
express our concern about S. 250, the Federal Prosecutor Ethics Act, or
similar legislation.
This legislation would allow government attorneys to engage in ex
parte contacts with individuals known to be represented by counsel
without their counsel's consent. Such a change would do more than
simply reverse the Citizen's Protection Act, passed just last year in
the Omnibus Appropriations bill. It would also send a signal that
Congress is prepared to undo the long-standing ethical prohibition on
ex parte communications with represented individuals that apply to all
attorneys under state and local federal court rules.
We appreciate and support the interest in ensuring that federal
government attorneys have all the tools they need to investigate and
prosecute fully any illegal or improper corporate activity. This
legislation, however, would seek to achieve this goal by creating a
different standard for government attorneys and private sector
attorneys with respect to ex parte communications.
As you are probably aware, the American Bar Association, the
American Corporate Counsel Association and a number of other legal
associations, individuals and companies have come out strongly against
enactment of S. 250 and further delay in implementing the McDade
provision. It is our understanding that the Conference of State
(Supreme Court) Justices has similarly enacted a unanimous resolution
condemning the U.S. Department of Justice's refusal to abide by current
state law principles of attorney-client ethics.
The different treatment of such a fundamental principle of the law
requires substantial opportunity for Congress to understand fully the
implications of this change, including the effect on due process for
businesses and the strong potential for governmental abuse of power.
We do not believe the case has yet been made for such a change.
Accordingly, the U.S. Chamber of Commerce continues to oppose S. 250
and any similar legislation that would undermine long-standing ethical
prohibitions on ex parte communications.
Sincerely,
R. Bruce Josten.
______
General Motors Corporation,
Detroit, MI, February 5, 1999.
The Hon. Carl M. Levin,
U.S. Senate, Washington, DC.
Dear Senator Levin: I am writing to you to express my support for
the McDade provision signed into law in October of last year which
clarifies that attorneys employed by the Federal Government, like all
other attorneys, will be subject to the state ethics codes and court
rules where they practice.
This provision had broad-based, bipartisan support in the last
Congress, but is still being opposed by the Department of Justice. The
DOJ position puts the desire for prosecutorial convictions ahead of the
principle that the self-regulation of the bar and judiciary, as well as
the public's respect for our legal system, depend upon all attorneys
observing the ethics of the jurisdictions in which they practice.
The end does not justify the means. Convictions only obtainable by
a disregard of accepted ethical codes of professional conduct are not
worthy to pursue. Federal Government attorneys should set the example,
not lower the standard.
State ethical codes are essentially uniform. Compliance with them
is neither difficult nor complicated. They actually facilitate the
administration of justice and are important to protecting the
constitutional and personal rights of all citizens.
I very much hope you will oppose efforts by the DOJ, however well
intended, to relax the obligation to observe the legal profession's
ethics for its attorneys.
Sincerely,
Thomas A. Gottschalk.
______
Monsanto Company,
St. Louis, MO, February 11, 1999.
Senator John Ashcroft,
Hart Senate Office Building, Washington, DC.
Dear Senator Ashcroft, I am writing to you to urge your opposition
to legislation recently introduced by Senator Orrin Hatch, S. 250,
which would repeal the Ethical Standards for Federal Prosecutors
provisions that were included in last year's omnibus spending bill,
P.L. 105-277.
The Ethical Standards provisions (also known as the ``McDade
provisions'') make it clear that federal prosecutors are subject to
existing state supreme court ethics rules governing attorney conduct.
These provisions do no more that codify the longstanding principle that
the regulation of the conduct of attorneys--including government
attorneys--is the province of the states, which admit attorneys to
practice, adopt rules for their conduct, and discipline them for
violations of those rules.
S. 250 would effectively allow the Department of Justice to
unilaterally exempt its attorneys from their longstanding professional
obligation to honor these state ethics codes. Permitting the Department
to exempt its prosecutors from the ethics rules that govern all others
attorneys creates a double standard and sends the wrong message to the
profession and the public. It could also lessen thoughtful protections
that have been crafted for people and entities under investigation. We
at Monsanto have long believed that the same ethical standards should
apply to government attorneys, in-house counsel and outside counsel.
I urge you to oppose S. 250 or any similar effort to lower the
ethical standards applicable to attorneys.
Sincerely,
Bill Ide.
______
National Association of Manufacturers,
Washington, DC, March 16, 1999.
The Hon. Dennis Hastert,
Speaker of the House, U.S. House of Representatives,
Rayburn House Office Building, Washington, DC.
Dear Mr. Speaker: On behalf of the National Association of
Manufacturers (NAM), the nation's largest broad-based industry trade
group, I am writing to express our grave concerns regarding S. 250, the
Federal Prosecutors Ethics Act.
This bill would allow government attorneys to engage in ex parte
contacts with individuals represented by counsel without notifying or
obtaining consent from such counsel. This result is in direct
opposition to one of the most fundamental rules of established legal
standards--the requirement that represented persons be contacted only
through counsel.
Department of Justice lawyers have increasingly ignored this
uniform rule observed by all 50 states. In fact, in 1989, Attorney
General Richard Thornburgh expansively construed the Constitution's
Supremacy Clause, declaring in a memo that ``assistant U.S. attorneys
could, under certain circumstances, contact and question people they
knew to be represented by a lawyer without first alerting the contacted
people's attorneys.'' The 8th Circuit Court of Appeals has ruled this
practice unconstitutional, and the Citizens Protection Act (CPA) passed
as part of the 1998 Omnibus Appropriations bill explicitly requires
that all federal attorneys are ``subject to State laws and rules, and
local federal court rules, governing attorneys in each State'' in which
they practice--including ex parte contact prohibitions.
While the NAM appreciates and supports ensuring that the government
has all the tools necessary to investigate and fully prosecute any
illegal or improper activity, this bill would seek to achieve this
laudable goal by severely undermining a nationally uniform and well-
established code of conduct. Accordingly, we would urge substantive
review and serious deliberation of this measure before undertaking such
a drastic step. Please feel free to call me or Kimberly Pinter, the
NAM's director for corporate finance and tax, at (202) 637-3071 if you
would like to discuss this further.
Sincerely,
Michael E. Baroody.
______
National Organization of Bar Counsel, Inc.,
Boise, ID, March 10, 1999.
Re: Federal Prosecutor Ethics Act (S. 250)
The Hon. Orrin Hatch,
Chair, Senate Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Hatch: I write as president of the National
Organization of Bar Counsel (the ``NOBC''), an association composed of
the Bar Counsel of all 50 states and the District of Columbia, who are
charged by their respective high courts to investigate and, where
appropriate, prosecute attorneys charged with professional misconduct.
I write to express the NOBC's concern that pending proposed legislation
introduced in the present session of Congress as the ``Federal
Prosecutor Ethics Act,'' S. 250, would undercut the traditional;
authority of State Supreme Courts around the country to regulate the
membership of their Bars, without conferring any measurable benefit
upon the federal law-enforcement officials that the legislation is
intended to protect.
The evident objective of S. 250 is to federalize the rules of
professional conduct applicable to federal law-enforcement officials,
creating a uniform set of disciplinary rules to be interpreted and
implemented by the Justice Department rather than by the State Supreme
Courts of the various jurisdictions before which the federal attorneys
are admitted to practice. So far as federal law-enforcement personnel
are concerned, the legislation, if enacted, would pre-empt the
enforcement mechanisms established by the State Supreme Courts, as well
as by the District of Columbia Court of Appeals, to oversee the
professional conduct of attorneys admitted before the various high
courts.
It merits observation that S. 250 would not only federalize the
ethical rules governing federal law-enforcement attorneys but would
oust the several federal district courts and courts of appeals from
their traditional oversight of attorneys who practice before them.
Rather than permit those courts to determine for themselves whether to
follow the disciplinary rules of the States in which the courts sit, to
adopt the ABA's Model Rules, or to prescribe their own standards, S.
250 would impose a uniform set of rules on the federal courts, whether
the courts want one or not. The legislation also would deprive the
federal courts of authority to enforce their own rules of conduct where
government prosecutors are concerned.
It is beyond the scope of this letter to address the
constitutionality of such an arrangement, although the Supreme Court's
post-Civil War opinion in Ex parte Garland strongly suggests that such
a law would not survive judicial review. Rather, we urge practical and
prudential, rather than constitutional considerations. Before Congress
embarks upon such a potentially confrontational course with the federal
court system, we respectfully urge that the proponents of the
legislation come forward with evidence that the present arrangement has
compromised the ability of the Justice Department to perform its law-
enforcement mission. the reasons for our scepticism are as follows:
For nearly a decade, the Justice Department has mounted a campaign
to insulate its lawyers from the perceived threat of State disciplinary
proceedings, first in the Thornburgh memorandum, then in the
``contact'' regulations, promulgated in 28 C.F.R. Part 77 (since
declared invalid by the United States Court of Appeals for the Eighth
Circuit in the McDonnell-Douglas litigation), and most recently in the
Department's unsuccessful opposition in the McDade legislation enacted
last year and codified at 28 U.S.C. Sec. 530B. The truly remarkable
feature of the Department's campaign is the absence of any evidence to
suggest a factual basis for the Department's concern that its line
attorneys are at the mercy of State bar prosecutors who are, in turn,
supposedly working hand-in-hand with the criminal-defense bar to
complicate the lives of their prosecutorial adversaries.
In the collective experience of the NOBC, nothing could be further
from the truth. In formal surveys of the membership of the NOBC, which
includes every attorney disciplinary authority in the country,
repeatedly have failed to produce evidence of ethical prosecutions, or
even investigations, directed at federal prosecutors who engage in
traditional, accepted law-enforcement activities, such as ``sting''
operations, undercover operations, wiretap surveillance, or the like.
As I am sure you are aware, the only remotely recent disciplinary
proceeding challenging a federal prosecutor's unauthorized contact with
a represented defendant was the Howes case in New Mexico. There the New
Mexico Supreme Court imposed a public censure upon a federal prosecutor
who repeatedly made contact with an incarcerated defendant who was
under indictment and represented by a public defender at the time of
the contacts.
Other well-known cases are readily distinguishable. The Hammad case
arose not as a disciplinary matter, but as a defendant's challenge to
the prosecutor's use of manufactured evidence in aid of an undercover
operation; the court of appeals in New York ultimately overturned the
trial court's dismissal of the indictment and took no further action
against the prosecutor. Likewise, in Ryan, the court of appeals in
California reversed the trail court's dismissal of an indictment
predicated upon the prosecutor's unauthorized contact.
The District of Columbia Bar, with an estimated 18,000 lawyers who
are government attorneys, probably has more federal prosecutors as
members than any other bar in the country. The United States Attorney's
Office for the District of Columbia is one of the largest in the
country and handles criminal prosecutions in both the federal court and
the District of Columbia Superior Court. Thousands more Department
lawyers are based at Main Justice. If Justice Department lawyers were
the subject of ethical complaints, investigations and prosecutions
anywhere in the country, one would expect to find evidence of such
activity in the District of Columbia. But the evidence is to the
contrary. The District of Columbia Bar Counsel advises that,
notwithstanding his receipt of nearly 1700 ethical complaints and his
institution of over 100 formal disciplinary proceedings each year, he
has had perhaps half a dozen complaints involving unauthorized contacts
by federal attorneys (not merely Justice Department lawyers) in the
seven years that he has held the position of Bar Counsel, and he has
instituted no prosecutions on such grounds. (the Howes case, noted
above, started as a referral to the District of Columbia Bar Counsel by
a Superior Court Judge, because Mr. Howes was not a member of the
District of Columbia Bar at the time, Bar Counsel referred the matter
to his New Mexico counterpart.)
We ask: Why is the Justice Department so concerned about the
regulation of the professional performance of its attorneys by the
State Supreme Courts? Where is the evidence that the Supreme Courts
have overstepped their bounds or infringed upon legitimate federal law-
enforcement efforts?
We understand that the McDade provision has inspired criticism to
the effect that its provisions inadvertently subject federal law-
enforcement attorneys to the potentially conflicting rules of multiple
jurisdictions. The argument is based upon the provision of the law such
attorneys ``shall be subject to State laws and rules * * * governing
attorneys in each state where such attorney engages in that attorneys
duties, to the same extent and in the same manner as other attorneys in
that state'' (emphasis added). Apparently opponents of the McDade
provision contend that the quoted provision subjects federal law-
enforcement attorneys to the disciplinary rules in each jurisdiction to
which the attorneys dispatch agents or investigators in aid of
multistate investigations. By way of illustration, it is suggested that
Judge Merrick Garland of the United States Court of Appeals for the
District of Columbia Circuit, while serving as a principal in the
office of the Deputy Attorney General in connection with the Oklahoma
City bombing case, could have been made subject to investigation and
prosecution in 20 or 30 different states because he dispatched FBI
agents and investigators to those jurisdictions as part of the Justice
Department's necessarily wide-ranging inquires. This argument is
meritless, for at least the following reasons.
First, the McDade law plainly provides that the attorney is to be
held accountable to the rules of the court before which he or she
appears or in whose jurisdiction the attorney engages in law-
enforcement efforts. Thus, under the McDade law, Mr. Garland would have
been subject to the rules of the District of Columbia Bar (where he had
been admitted to practice and where he maintained his office at Main
Justice) while the Oklahoma City investigation was pending and then to
the rules of the United States District Court, if and to the extent
that his activities continued after the government commenced a formal
criminal proceeding in that forum. I cannot imagine that any
disciplinary authority in the country would have taken the position
that, by virtue of the McDade law, Mr. Garland also had subjected
himself to the rules of every jurisdiction to which the Justice
Department dispatched agents or investigators in aid of its inquiry.
Second, the opponents of the McDade law who rely upon the Garland
hypothetical or its like assume, incorrectly, that the ethical rules of
the several States are variant and inconsistent. To the contrary,
notwithstanding stylistic differences, the rules are remarkably similar
from State to State. This is particularly the case with respect to the
``anti-contact'' rule embodied in the various state versions of the
ABA's Model Rule 4.2(a) of the Rules of Professional Conduct and its
counterpart Disciplinary Rule 7-104(A)(1) of the antecedent Code of
Professional Responsibility. The remarkable absence of disciplinary
proceedings brought against federal law-enforcement attorneys under any
version of the ``anti-contact'' rule is the best evidence of uniformity
in function, if not in precise wording.
Third, the criticism of the McDade law assumes, again incorrectly,
that the NOBC's constituent bar counsel are anxious to bring
disciplinary charges against federal prosecutors who engage in
traditionally accepted law-enforcement procedures, notwithstanding that
the federal courts repeatedly have upheld pre-indictment, noncustodial
contacts with suspects known to be represented by counsel. Under the
McDade law, The Bar Counsel of the several States remain the
enforcement agents of the State Supreme Courts. Thus, it is significant
that, as noted above, the NOBC regularly reports that its members have
no pending prosecutions of federal attorneys based on violations of the
``anti-contact'' Rule.
Finally, the District of Columbia Bar Counsel notes that he has
occasion to investigate Assistant United States Attorneys at the United
States Attorney's Office who are charged with violations of the Jencks
and Brady rules or with improper closing arguments in criminal trials.
The District of Columbia Bar Counsel also notes that from time to time,
the Justice Department's Office of Professional Responsibility refers
matters involving attorneys at Main Justice who have been the subject
of OPR's investigations and who are members of the District of Columbia
Bar, Presumably, under S. 250, the District of Columbia Bar would lose
jurisdiction over such matters, notwithstanding that Main Justice and
the United States Attorney's Office never have objected on
jurisdictional grounds to the Bar's investigations and prosecutions in
such cases and have cooperated with Bar Counsel's inquiries.
In our view, the McDade provision has restores a measure of
stability and certainty to a situation that has become progressively
more muddled in recent years, as the Justice Department has asserted
and reasserted a supposed authority to pre-empt the State Supreme
Courts' regulation of the Department's attorneys and to substitute the
Department as sole judge of its own conduct. For years, the ABA has
struggled to deal with the problem presented by the Department's
persistent derogation of the authority of the State Supreme Courts
before which the Department's attorneys are admitted to practice. More
recently, the Conference of State Chief Justices has been drawn into
the fray. Far from resolving this perennial conflict, we respectfully
submit, the proposed S. 250 merely would renew the cycle of dispute and
confrontation that has characterized the handling of this issue for the
better part of a decade.
At the outset, for present purposes, we do not take issue with the
power of Congress to enact such Legislation, even though the bill as
drafted would make significant incursions upon the traditional
authority of the State Supreme Courts to regulate the practice of law
in their respective jurisdictions. Rather, we question the need for
such legislation and the wisdom of delegating to one segment of the
Bar--the federal prosecutors--the authority to act, in effect, as
judges in their own cases, unlike any other lawyers admitted to
practice in their country.
For the forgoing reasons, we respectfully urge you and your staff
to reconsider the proposed S. 250 and to give the McDade law (which
becomes effective in April 1999) a chance to work before the Senate
condemns it out of hand.
We welcome an opportunity to meet with you to discuss in person our
concerns about the pending legislation. We thank you for your careful
attention to this important issue. I should note that copies of this
letter will be made available to other members of Congress and their
staffs.
Respectfully submitted,
Michael J. Oths,
President, National Organization of Bar Counsel,
Bar Counsel, Idaho State Bar.
______
Proskauer Rose LLP,
New York, NY, September 28, 1998.
Re: Title VIII in H.R. 4276 (DOJ Appropriations Bill)
Hon. Ted Stevens,
Chairman, U.S. Senate Appropriations
Committee, U.S. Capitol, Washington, DC.
Dear Chairman Stevens: I write to you with perspective of a former
Deputy Attorney General of the United States, a vigorous advocate for
victims' rights (I am privileged to serve as Chairman of the Board of
the National Victim Center and Chairman of the Board of the
International Center for Missing and Exploited Children), and as one
who now represents companies and individual business persons under
investigation by the federal government attorneys for criminal and
quasi-criminal (or regulatory) federal violations. I respectfully urge
you to ensure that the much-needed, indeed, long-overdue measure passed
overwhelming (345-82) by the House of Representatives on August 5 as
Title VIII of its version of the fiscal year 1999 appropriations bill
for the Department of Justice (H.R. 4276), is retained as part of your
unified bill and conference committee report.
I enclose for your information two articles I have recently
written, on the need for Congress to curb prosecutorial excesses. The
primary problem-solver advocated in these articles is for Congress to
insist upon meaningful checks and balances against abuses of
prosecutorial powers. The most important congressional action called
for in the longer article I have written with two of my firm colleagues
is the re-subjection of federal government lawyers to the ethical
standards of conduct by which they abided for the history of the
Republic, until 1989, and by which all other attorneys must abide.
I respectfully urge you to work toward a conference committee
measure which embraces Title VIII of the House version of the bill, and
thus re-establishes that federal government lawyers, just like all
other attorneys, must indeed abide by the fundamental rules of ethical
attorney conduct required by the State Supreme Courts granting those
attorneys their very licenses to practice law, and the law, and the
local rules of ethical practice required by the federal courts before
whom these lawyers appear.
Contrary to the misunderstanding of some, this is nothing new. And
it is certainly nothing radical. The measure simply sets the record
straight, once and for all, and calls a halt to the Department's
inappropriate claims, rejected by the courts, state and federal, that
its lawyers alone are unbound by the basic rules of ethical attorney
conduct applicable to all other lawyers, including state prosecutors
and the federal prosecutors' adversaries, counsel for the investigated
and the accused.
DOJ lawyers, like all other lawyers, are actually, and historically
have been, subject to independent investigation and disciplines by the
high court of the state or states in which they are admitted to
practice--that is, the State Supreme Court that granted the lawyer his
or her license to practice law. But, unfortunately, since 1989, the
Department of Justice has taken the position that its lawyers alone,
paid for by congressionally-appropriated tax dollars, may ignore the
fundamental ethical prohibition against interrogating represented
persons outside the presence of the person's lawyer (ex parte
contacts). The Department has abused this self-created, unethical power
to interrogate and in some cases intimidate employees of corporations,
small businesses, and individual citizens under criminal or civil
(regulatory) investigation.
The Department's refusal to abide by the fundamental laws of
ethical attorney conduct has been roundly condemned by state and
federal courts, including a unanimous resolution of the Conference of
State (Supreme Court) Justices. Most recently, the Eighth Circuit U.S.
Court of Appeals rejected the DOJ's position, in a case concerning a
government regulatory investigation of the McDonnell Douglas
Corporation, U.S. v. McDonnell Corporation, 132 F.3d 1252 (8th Cir.
1997), in which the Department claimed the power for its attorneys
alone to avoid not only the rules of the State Supreme Courts granting
those lawyers their licenses, but even the local rules of practice of
the federal court before which the government's lawyers were appearing.
Unless corrected, this self-exemption for government lawyers will
likely expand and create the anomaly of prosecutors abiding by one set
of (self made) rules while counsel for citizens in litigation with the
Department of Justice are required to follow more restrictive rules.
The State Supreme Courts have always borne the exclusive
responsibility for admitting attorneys to the bar and for their
discipline. As the U.S. Supreme court has said: ``Since the founding of
the Republic, the licensing and regulation of lawyers has been left
exclusively to the States and the District of Columbia within their
respective jurisdiction. The States prescribe the qualifications for
admission to practice and the standards of professional conduct. They
also are responsible for the discipline of lawyers.'' Leis v. Flynt,
439 U.S. 438, 442 (1979).
Moreover, as a fundamental condition on its appropriations to the
Department of Justice, Congress has routinely declared that each
Department of Justice lawyer must be ``duly licensed and authorized to
practice as an attorney under the laws of a State, territory, or the
District of Columbia.'' See, e.g., Department of Justice Appropriation
Authorization Act. Fiscal Year 1980, Pub. L. No. 96-132, 93 Stat. 1040
(1979) (This provision has been reenacted in successive years). The
courts have held that this statute requires prosecutors to comply with
the ethics rules of their respective states of admission. See, e.g.,
U.S. v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd, 54 F.3d 825
(D.C. Cir. 1995). DOJ has simply been ignoring these rulings. This must
stop. Congress--your Conference Committee--should act to stop it.
Title VIII of H.R. 4276 simply clarifies for the Department that it
must cease its attempts to circumvent this requirement. The measure
ensures that Justice employees will indeed abide by the rules of ethics
required by the state supreme court authorities which have granted the
lawyers their very licenses (as a condition of those licenses), and the
local federal court rules of attorney conduct by which all attorneys
appearing before those courts must abide.
No one, not even federal prosecutors, should consider themselves
above the law. This appropriations measure would set the record
straight, and put an end to the Department's policy of deciding which
ethical rules it will obey or not obey.
Most recently, the Department has used its congressionally-
appropriated tax dollars to bring federal suits against the states. DOJ
has forced the states to spend their own tax dollars in these federal
cases defending their right under the fundamental constitutional
principle of Federalism (state prerogatives and responsibilities), to
ensure that the lawyers to whom they grant a license to practice law (a
core state function) actually abide by the states' standards of ethical
attorney conduct. A case in point is the one recently brought by DOJ in
federal court against Louisiana in December 1996. DOJ soaked up the
scarce resources of the Louisiana Supreme Court, represented by the
Louisiana Attorney General, for over seven months before the case was
dismissed. There was no actual or potential interference with any
federal investigation even claimed along the lines of the hypothesized
horrors DOJ has presented.
The House was right to recognize that law enforcement concerns
cannot justify the DOJ's self-creation of less demanding ethics rules
for federal prosecutors and regulatory lawyers. This has nothing to do
with the supremacy of federal laws that are duly enacted by Congress
and enjoy protection of federal constitutional preemption.
The judiciary has consistently read the rule against contact with
represented persons, and other ethics rules, to permit federal
prosecutors reasonable leeways to perform their duties--e.g., in the
``in-house mob lawyer'' hypothetical DOJ so often cites. In exceptional
cases like these. government lawyers would simply seek judicial
authorization for an exception to the rules, just like with warrant or
wiretap requests. A judicial authorization, by the neutral judicial
authority, would meet the well-recognized ``authorized by law''
exception to the legal rules against interrogating persons outside the
presence of their lawyers. Neither DOJ nor any other law enforcement
group has cited an actual ethics case placing an unreasonable restraint
on law enforcement.
In short, it makes sense for Congress to condition its
appropriation of citizen tax dollars to DOJ operations on the basic
requirement that the federal lawyers employed through the public purse
abide by the rule of law.
I hope these views and the enclosed materials are helpful to the
Conference Committee. I look forward to answering any questions you may
have and assisting you and the conference Committee in any way I can.
Sincerely,
Arnold I. Burns.
______
Sara Lee Corporation,
Chicago, IL, March 23, 1999.
To: The Illinois Congresspersons, Included on the Attached Schedule.
Dear Senator or Representative: I am writing to urge your
opposition to S. 250, the Federal Prosecutor Ethics Act, which seeks to
repeal the Ethical Standards for Federal Prosecutors Act, P.L. 105-277,
Sec. 801 (popularly known as the McDade Provision). The McDade
Provision is an important clarification of well-established law that
compels all attorneys to conduct themselves in accordance with the
ethical standards established by the states in which they practice. It
is crucial that these standards of professional conduct be applied
equally to federal prosecutors in order to support the integrity of the
judicial process, to safeguard important protections of individual
rights and to ensure public respect for our judicial system.
Federal prosecutors are entrusted with extensive powers in order to
facilitate performance of their prosecutorial duties. While vigorous
investigation and prosecution of improper conduct is essential to
maintaining our social framework, the nation is not well served if
prosecutorial activities infringe upon individual rights or undermine
public confidence in the fairness of our judicial system. Exempting
federal prosecutors from the ethical rules that bind all other lawyers
would allow federal prosecutors to disregard long-standing practices
which have been carefully and thoughtfully crafted to safeguard
individual rights. Furthermore, such exemption is contrary to the
public's expectation that prosecutors should adhere to the highest
standards of the legal profession. Adherence to such standards is not
an impediment to our federal prosecutors, but rather an essential part
of their prosecutorial role.
While the Department of Justice had taken the position that it
should be permitted to unilaterally declare federal prosecutors exempt
from the ethics standards which apply to the rest of the legal
profession, Congress wisely rejected this argument in the McDade
Provision. We at Sara Lee believe that the same ethical standards
should apply to both private sector and government attorneys. I urge
you to continue to reject any efforts to diminish the ethical standards
that apply to the conduct of government attorneys, including the
legislation introduced by S. 250.
Sincerely,
Janet Langford Kelly,
Senior Vice President, Secretary and General Counsel.
The Honorable Richard J, Durbin The Honorable John Porter
United States Senate U.S. House of Representatives
Washington, D.C. 20510
Washington, D.C. 20515
The Honorable Peter Fitzgerald The Honorable Jerry Weller
United States Senate U.S. House of Representatives
Washington, D.C. 20510
Washington, D.C. 20515
The Honorable Bobby Rush The Honorable Jerry Costello
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable Jesse Jackson, Jr. The Honorable Judy Biggert
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable William Lipinski The Honorable Dennis Hastert
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable Luis Guitirez The Honorable Thomas Ewing
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable Rod Blagojevich The Honorable Donald Manzullo
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable Henry J. Hyde The Honorable Lane Evans
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable Danny Davis the Honorable Ray La Hood
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable Philip M. Crane The Honorable David Phelps
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515
Washington, D.C. 20515
The Honorable Janice Schakowsky The Honorable John Shimkus
U.S. House of Representatives U.S. House of Representatives
Washington, D.C. 20515 Washington, D.C. 20515