[Congressional Record Volume 146, Number 117 (Wednesday, September 27, 2000)]
[Senate]
[Pages S9377-S9378]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    THE PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS ACT OF 2000

  Mr. LEAHY. Mr. President, I spoke earlier this month about the 
continuing problems for Federal law enforcement caused by the so-called 
McDade law, which was slipped into the omnibus appropriations law at 
the end of the last Congress. I discussed how the interplay of the 
McDade law and a recent attorney ethics decision by the Oregon Supreme 
Court is severely hampering Federal law enforcement efforts in Oregon. 
Oregon's Federal prosecutors will no longer use federally authorized 
investigative techniques such as wiretaps and consensual monitoring, 
and by the end of this week, the FBI will shut down Portland's Innocent 
Images undercover operation, which targets child pornography and 
exploitation. This is just the latest example of how the McDade law has 
impeded important criminal prosecutions, chilled the use of traditional 
Federal investigative techniques and posed multiple hurdles for Federal 
prosecutors.
  Due to my serious concerns about the adverse effects of the McDade 
law on Federal law enforcement efforts, I introduced S. 855, the 
Professional Standards for Government Attorneys Act, on April 21, 1999. 
The Justice Department has called this legislation ``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.''
  Since that time, I have conferred with a number of lawmakers from 
both sides of the aisle about crafting an alternative to the McDade 
law. Together, we worked out a proposal based on S. 855, which would 
address the problems that have caused by the McDade law, while adhering 
to the basic premise of that law-- that the Department of Justice 
should not have the authority it long claimed either to write its own 
ethics rules or to exempt its lawyers from the ethics rules adopted by 
the Federal courts. Based on these discussions, I am filing this 
substitute amendment to my bill, S. 855.
  I regret that we have squandered opportunities to move any corrective 
legislation through the Congress. The consequences of our inaction have 
been severe, as I have discussed, and it is clear that Federal law 
enforcement efforts will continue to suffer if we do not act now.
  I ask unanimous consent that a copy of the substitute amendment and a 
section-by-section summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Summary of the Professional Standards for Government Attorneys Act of 
                                  2000


                              1. overview

       The Professional Standards for Government Attorneys Act of 
     2000 adheres to the basic premise of section 801 of the 
     omnibus appropriations act for fiscal year 1999 (Pub. L. 105-
     277), commonly known as the McDade law: the Department of 
     Justice does not have the authority it has long claimed to 
     write its own ethics rules. The proposed legislation would 
     establish that the Department may not unilaterally exempt 
     federal trial lawyers from the rules of ethics adopted by the 
     federal courts. Federal courts are the more appropriate body 
     to establish rules of professional responsibility for federal 
     prosecutors, not only because federal courts have traditional 
     authority to establish such rules for lawyers generally, but 
     because the Department lacks the requisite objectivity.

[[Page S9378]]

       The first part of the proposed legislation embodies the 
     traditional understanding that when lawyers handle cases 
     before a federal court, they should be subject to the federal 
     court's rules of professional responsibility, and not to the 
     possibly inconsistent rules of other jurisdictions. By 
     incorporating this ordinary choice-of-law principle, the 
     proposed legislation would preserve the federal courts' 
     traditional authority to oversee the professional conduct of 
     federal trial lawyers, including federal prosecutors. It 
     would thereby avoid the uncertainties presented by the McDade 
     law, which subjects federal prosecutors to state laws, rules 
     of criminal procedure, and judicial decisions which differ 
     from existing federal law.
       The second part of the proposed legislation addresses the 
     most pressing contemporary question of government attorney 
     ethics--namely, the question of which rule should govern 
     government attorneys' communications with represented 
     persons. It asks the Judicial Conference of the United States 
     to submit to the Supreme Court a proposed uniform national 
     rule to govern this area of professional conduct, and to 
     study the need for additional national rules to govern other 
     areas in which the proliferation of local rules may interfere 
     with effective federal law enforcement. The Rules Enabling 
     Act process is the ideal one for developing such rules, both 
     because the federal judiciary traditionally is responsible 
     for overseeing the conduct of lawyers in federal court 
     proceedings, and because this process would best provide the 
     Supreme Court an opportunity fully to consider and 
     objectively to weigh all relevant considerations.


                             2. short title

       Section one is the short title of the bill.


                    3. amendments to 28 u.s.c. 530b

       Section two supersedes the McDade law with a new 28 U.S.C. 
     530B, consisting of four subsections.
       Subsection (a) codifies the definition of ``attorney for 
     the Government'' in the current Department of Justice 
     regulations, and also includes in the definition any outside 
     special counsel, or employee of such counsel, as may be 
     appointed by the Attorney General under 28 CFR 600.1 or any 
     other provision of law.
       Subsection (b) establishes a clear choice-of-law rule for 
     government attorneys with respect to standards of 
     professional responsibility, modeled on Rule 8.5(b) of the 
     ABA's Model Rules of Professional Conduct. An attorney who is 
     handling a case in court would be subject to the professional 
     standards established by the rules and decisions of that 
     court. An attorney who is conducting a grand jury 
     investigation would be subject to the professional standards 
     of the court under whose authority the grand jury was 
     impanelled. In other circumstances, where no court has clear 
     supervisory authority over particular conduct, an attorney 
     would be subject to the professional standards established by 
     rules and decisions of the United States district court for 
     the judicial district in which the attorney principally 
     performs his official duties, except that the Act does not 
     apply to government attorney conduct that is unrelated to the 
     attorney's work for the government.
       Thus, for example, an Assistant United States Attorney for 
     the Eastern District of New York would ordinarily be subject 
     to the attorney conduct rules prescribed by the E.D.N.Y. 
     courts, as interpreted and applied by those courts. If the 
     attorney handled a government appeal in the United States 
     Court of Appeals for the Second Circuit, the attorney's 
     conduct in connection with the appeal would be subject to the 
     local rules and interpretive decisions of the Second Circuit. 
     If cross-designated to handle a prosecution in another 
     judicial district, e.g., the District of New Jersey, the 
     attorney's conduct with respect to that prosecution would be 
     subject to the local federal district court rules. Similarly, 
     if the attorney were to handle a matter for the government 
     before a New York State court, the attorney would be subject 
     to the professional standards established by the rules and 
     decisions of that court, in the same manner and to the same 
     extent as other New York State practitioners.
       This provision anticipates that the Supreme Court might 
     promulgate one or more uniform national rules governing the 
     professional conduct of government attorneys practicing 
     before the federal courts. In this event, the terms of the 
     uniform national rule would apply.
       Subsection (c) codifies the predominant practice with 
     respect to state disciplinary proceedings against government 
     attorneys. A government attorney whose conduct is subject to 
     the professional standards of a federal court may be 
     disciplined by state authorities only if referred to state 
     authorities by a federal court. No referral is needed when 
     the applicable professional standards are those of a state 
     court (which may occur, under subsection (b), if the attorney 
     is handling a matter before a state court). This gatekeeping 
     provision ensures that federal courts will have the first 
     opportunity to interpret and apply federal court rules to 
     government attorneys, while leaving substantial enforcement 
     authority with state disciplinary bodies. This provision also 
     specifically promotes federal uniformity in the application 
     of professional standards to government attorneys.
       Subsection (d) clarifies the law regarding the licensing of 
     government attorneys, an issue that is currently addressed 
     through the appropriations process. Since 1979, 
     appropriations bills for the Department of Justice have 
     incorporated by reference section 3(a) of Pub. L. 96-132, 
     which states: ``None of the sums authorized to be 
     appropriated by this Act may be used to pay the compensation 
     of any person employed after the date of the enactment of 
     this Act as an attorney (except foreign counsel employed in 
     special cases) unless such person shall be duly licensed and 
     authorized to practice as an attorney under the laws of a 
     State, territory, or the District of Columbia.''
       Subsection (d) codifies this longstanding requirement, and 
     also makes clear that government attorneys need not be 
     licensed under the laws of any state in particular. The 
     clarification is necessary to ensure that local rules 
     regarding state licensure are not applied to federal 
     prosecutors. Cf. United States v. Straub, No. 5:99 Cr. 10 
     (N.D. W. Va. June 14, 1999) (granting defense motion to 
     disqualify the Assistant United States Attorney because he 
     was not licensed to practice in West Virginia).
       Subsection (e), like the McDade law, authorizes the 
     Attorney General to make and amend rules to assure compliance 
     with section 530B.


           4. JUDICIAL CONFERENCE REPORTS AND RECOMMENDATIONS

       Section three directs the Judicial Conference of the United 
     States to prepare two reports regarding the regulation of 
     government attorney conduct. Both reports would contain 
     recommendations with respect to the advisability of uniform 
     national rules.
       The first report would address the issue of contacts with 
     represented persons, which has generated the most serious 
     controversy regarding the professional conduct of government 
     attorneys. See, e.g., State v. Miller, 600 N.W.2d 457 (Minn. 
     1999); United States v. McDonnell Douglas Corp., 132 F.3d 
     1252 (8th Cir. 1998); United States v. Lopez, 4 F.3d 1455 
     (9th Cir. 1993); United States v. Hammad, 858 F.2d 834 (2d 
     Cir. 1988).
       Rule 4.2 of the ABA's Model Rules of Professional Conduct 
     and analogous rules adopted by state courts and bar 
     associations place strict limits on when a lawyer may 
     communicate with a person he knows to be represented by 
     another lawyer. These ``no contact'' rules preserve fairness 
     in the adversarial system and the integrity of the attorney-
     client relationship by protecting parties, potential parties 
     and witnesses from lawyers who would exploit the disparity in 
     legal skill between attorneys and lay people and damage the 
     position of the represented person. Courts have given a wide 
     variety of interpretations to these rules, however, creating 
     uncertainty and confusion as to how they apply in criminal 
     cases and to government attorneys. For example, courts have 
     disagreed about whether these rules apply to federal 
     prosecutor contacts with represented persons in non-custodial 
     pre-indictment situations, in custodial pre-indictment 
     situations, and in post-indictment situations involving the 
     same or different matters underlying the charges.
       Lawyers who practice in federal court--and federal 
     prosecutors in particular--have a legitimate interest in 
     being governed by a single set of professional standards 
     relating to frequently recurring questions of professional 
     conduct. Further, any rule governing federal prosecutors' 
     communications with represented persons should be respectful 
     of legitimate law enforcement interest as well as the 
     legitimate interests of the represented individuals. Absent 
     clear authority to engage in communications with represented 
     persons--when necessary and under limited circumstances 
     carefully circumscribed by law--the government is 
     significantly hampered in its ability to detect and prosecute 
     federal offenses.
       The proposed legislation charges the Judicial Conference 
     with developing a uniform national rule governing government 
     attorney contacts with represented persons. Given the 
     advanced stage of dialogue among the interested parties--the 
     Department of Justice, the ABA, the federal and state courts, 
     and others--the Committee is confident that a satisfactory 
     rule can be developed within the one-year time frame 
     established by the bill.
       While the ``no contact'' rule poses the most serious 
     challenge to effective law enforcement, other rules of 
     professional responsibility may also threaten to interfere 
     with legitimate investigations. The proposed legislation 
     therefore directs the Judicial Conference to prepare a second 
     report addressing broader questions regarding the regulation 
     of government attorney conduct. This report, to be completed 
     within two years, would review any areas of conflict or 
     potential conflict between federal law enforcement techniques 
     and existing standards of professional responsibility, and 
     make recommendations concerning the need for additional 
     national rules.

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