[Federal Register Volume 59, Number 42 (Thursday, March 3, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4510]


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[Federal Register: March 3, 1994]


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DEPARTMENT OF JUSTICE

28 CFR Part 77

[AG Order No. 1851-94]

 

Communications With Represented Persons

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice (``Department'') is issuing for an 
additional 30-day comment period a proposed rule governing the 
circumstances under which its attorneys may communicate with persons 
and organizations known to be represented by counsel in the course of 
law enforcement investigations and proceedings.
    The purpose of the proposed rule is to impose a comprehensive, 
clear and uniform set of regulations on the conduct of government 
attorneys during criminal and civil investigations and enforcement 
proceedings. The rule is intended to ensure that government attorneys 
adhere to the highest ethical standards, while eliminating the 
uncertainty and confusion arising from the variety of interpretations 
of state rules, some of which have been incorporated by reference as 
local court rules in a number of federal district courts.
    The proposed rule establishes a general prohibition, subject to 
limited enumerated exceptions, against contacts with ``represented 
parties.'' This prohibition derives from the American Bar Association 
(``ABA'') Code of Professional Responsibility and its successor, the 
ABA Model Rules of Professional Conduct. The proposed rule generally 
permits investigative contacts with represented individuals or 
organizations who have not yet been named as defendants in a civil or 
criminal enforcement proceeding or arrested as part of a criminal 
proceeding. However, the rule would not permit contacts with 
represented persons without the consent of counsel for the purpose of 
negotiating plea agreements, settlements or other similar legal 
arrangements.
    In addition, the Department intends to issue substantial additions 
to the United States Attorneys' Manual (``Manual'') to provide 
additional direction to Department attorneys when they deal with 
represented individuals and organizations, in order to accommodate more 
fully the principles and purposes underlying the bar rules. Those 
provisions further restrict government attorneys when they contact 
targets of criminal or civil law enforcement investigations who are 
known to be represented by counsel, and when they communicate with 
other represented persons. The intended additions to the United States 
Attorneys' Manual are provided for reference as part of this 
commentary.

DATES: Comments must be received on or before April 4, 1994.

ADDRESSES: Written comments should be submitted to: The Office of the 
Associate Attorney General, United States Department of Justice, 10th 
St. and Constitution Ave. NW., Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: F. Mark Terison, Senior Attorney, 
Legal Counsel, Executive Office for United States Attorneys, United 
States Department of Justice, (202) 514-5204. This is not a toll-free 
number.

SUPPLEMENTARY INFORMATION:

I. General Discussion

    The Department issued for notice and comment a proposed rule on the 
same subject on two previous occasions. See 57 FR 54737 (Nov. 20, 1992) 
and 58 FR 39976 (July 26, 1993). The Department received many 
thoughtful comments from members of the bar, state courts, bar counsel, 
federal and state prosecutors and others during those comment periods. 
The current version of the proposed rule includes substantial revisions 
based on those comments. Accordingly, the Department is issuing the 
rule again for comments to ensure that all the interested parties have 
an opportunity to comment.
    This proposal reflects the Department's commitment to fostering 
ethical behavior consistent with the principles informing DR 7-
104(A)(1) of the ABA Code of Professional Responsibility and Rule 4.2 
of the Model Rules of Professional Conduct, while setting forth clear 
and uniform national guidelines upon which federal attorneys can rely 
in carrying out their responsibilities to enforce federal laws. The 
regulations make clear that federal attorneys generally continue to be 
subject to state bar ethical rules where they are licensed to practice, 
except in the limited circumstances where state ethical rules clearly 
conflict with lawful federal procedures and practices. With respect to 
willful violations of the contacts rules as embodied in the Attorney 
General's proposed regulations, federal attorneys would remain subject 
to state bar disciplinary sanctions. This new proposal is the product 
of extensive review, comments and vigorous debate among judges, federal 
government attorneys, members of the private bar, disciplinary 
officials, academics and ethicists.
    In essence, the proposed regulations would permit federal 
prosecutors and agents to continue to conduct criminal and civil 
investigations in routine fashion against all individuals, whether or 
not those persons are represented by counsel. They would allow 
Department attorneys to continue to make or direct undercover or overt 
contacts with individuals and organizations represented by counsel for 
the purpose of developing factual information up until the point at 
which they are arrested or charged with a crime or named as defendants 
in a civil law enforcement action. However, the regulations generally 
would not permit federal prosecutors to attempt to negotiate plea 
agreements, settlements or similar arrangements with individuals 
represented by counsel outside of the presence or without the consent 
of their attorneys. These regulations also would preclude, with certain 
very narrow exceptions, any contacts with represented parties after an 
arrest, indictment, or the filing of a complaint on the subject matter 
of the representation. The principal exception to these general 
prohibitions occurs when the defendant voluntarily and knowingly 
initiates a contact with the government attorney, in which case the 
regulations would require the government attorney to take the matter 
before a district judge or magistrate judge to obtain approval for the 
communication or to obtain the appointment of substitute counsel for 
the defendant.
    The United States Attorneys' Manual will set forth further 
guidance. The proposed Manual provisions, which are set out in their 
entirety at the end of this commentary, prohibit overt approaches by 
federal attorneys to represented targets of criminal or civil 
enforcement proceedings without the consent of counsel, unless certain 
enumerated exceptions are met. The Manual also will require that 
government attorneys receive approval from their supervisors before 
communicating with any represented party or represented target.
    Since early in this century, the rules of professional conduct that 
govern attorneys have required that lawyers for one party in a dispute 
communicate only through an adverse party's lawyer, rather than 
directly. DR 7-104(A)(1) of the ABA Model Code of Professional 
Responsibility provides:

    A. During the course of his representation of a client a lawyer 
shall not:
    1. Communicate or cause another to communicate on the subject of 
the representation with a party he knows to be represented by a 
lawyer in that matter unless he has the prior consent of the lawyer 
representing such other party or is authorized by law to do so.
    Rule 4.2 of the ABA Model Rules states:
    In representing a client, a lawyer shall not communicate about 
the subject of the representation with a party the lawyer knows to 
be represented by another lawyer in the matter, unless the lawyer 
has the consent of the other lawyer or is authorized by law to do 
so.

Disciplinary authorities in all 50 states and in the District of 
Columbia have adopted one of these rules, or a similar prohibition. 
Underlying these rules is the recognition that when two parties in a 
legal proceeding are represented, it is unfair for an attorney to 
circumvent opposing counsel and employ superior skills and legal 
training to take advantage of the opposing party.
    At the same time, the courts have long recognized that government 
law enforcement agents must be allowed broad powers, within 
constitutional limits, to investigate crime and civil violations of 
police and regulatory laws. These powers properly include the authority 
to conduct undercover operations and to interview witnesses, potential 
suspects, targets and even defendants who waive their rights to remain 
silent. Although the Fifth and Sixth Amendments significantly restrict 
contacts with defendants after their initial appearance before a judge 
or after indictment, these constraints generally do not apply before a 
person has been taken into custody or charged in an adversary 
proceeding. Sound policies support this substantial power of police to 
investigate. The general public, victims of crime, and even potential 
suspects have a strong interest in vigorous inquiry by law enforcement 
officers before arrest or the filing of charges.
    As long as investigations were treated as within the province of 
the police alone, the traditional rule forbidding counsel from directly 
contacting represented persons did not come into conflict with 
legitimate law enforcement activities. In recent years, however, the 
Department of Justice has encouraged federal prosecutors to play a 
larger role in preindictment, prearrest investigations. Some of this 
increased involvement stems from the wider use of law enforcement 
techniques, such as electronic surveillance, which require the 
preparation of legal filings. Also, complex white collar and organized 
crime investigations necessitate more intensive engagement of lawyers, 
who present such cases to grand juries. Most important, greater 
participation of lawyers at the preindictment stage of law enforcement 
has been regarded as helpful in assuring that police investigations 
comply with high legal and ethical standards.
    This extension of the traditional prosecutor's responsibility has 
been a salutary development. One by-product, however, has been 
uncertainty about whether the traditional professional limitation on 
attorney contacts with represented parties should be viewed as a 
restriction upon prosecutors engaged in investigations and, by 
extension, the agents with whom they work. The overwhelming 
preponderance of federal appellate courts have held that the 
restriction on contacts with represented persons does not apply at the 
preindictment investigation stage. See, e.g., United States v. Ryans, 
903 F.2d 731 (10th Cir.), cert. denied, 498 U.S. 855 (1990) (discussing 
cases); United States v. Lemonakis, 485 F.2d 941, 955-56 (DC Cir. 
1973), cert. denied, 415 U.S. 989 (1974). Only the Second Circuit has 
suggested otherwise. See United States v. Hammad, 858 F.2d 834 (2d Cir. 
1988). In recent years, state courts and state bar organizations have 
expressed different views on the point at which the prohibition on 
contacts now embodied in DR 7-104, Model Rule 4.2 and their analogs 
should apply to criminal enforcement proceedings.
    Uncertainty about the scope and applicability of DR 7-104, Rule 4.2 
and their state counterparts has directly affected the investigative 
activities of agents, including Federal Bureau of Investigation and 
Drug Enforcement Administration personnel, who work with prosecutors. 
An expansive application of these rules in some jurisdictions may have 
the effect of blocking preindictment interviews or undercover 
operations that most courts have held permissible under federal 
constitutional and statutory law.
    This problem is compounded when federal attorneys assigned to the 
same case are members of different state bars. Under federal law, a 
Department attorney must be a member in good standing of a state bar, 
but he or she need not belong to the bar in each state in which he or 
she is practicing for the government. As a result, prosecution teams 
often comprise attorneys admitted to different bars. The application of 
different state disciplinary rules to these individuals creates 
uncertainty, confusion and the possibility of unfairness. Indeed, one 
member of a two-member federal prosecution team could receive a 
commendation for effective law enforcement while the other member would 
be subject to state discipline for the exact same conduct.
    In light of these circumstances, the Department has concluded that 
a compelling need exists which warrants a uniform federal rule to 
reconcile the traditional rule against contacts with a represented 
person with the obligation of the Department of Justice to enforce the 
law vigorously. Indeed, absent a new federal rule, prosecutors have 
been forced on occasion to reduce their participation in the 
investigative phase of law enforcement so as to leave federal agents 
unfettered by state disciplinary rules that were never intended to 
govern police behavior. Such a retreat from the field by prosecutors 
serves neither efficiency nor the interest in elevating legal 
compliance and ethical standards in all phases of law enforcement.
    Furthermore, the disciplinary rules themselves invite this type of 
regulation. Virtually all the states have adopted rules that include an 
``authorized by law'' exception. These proposed regulations are 
intended to provide legal authorization in states whose bar rules 
provide that exception.
    Finally, the Department has long maintained, and continues to 
maintain, that it has the authority to exempt its attorneys from the 
application of DR 7-104 and Model Rule 4.2 and their state 
counterparts. Furthermore, the Department maintains that whether, and 
to what extent, such prohibitions should apply to Department attorneys 
is a policy question. See Ethical Restraints of the ABA Code of 
Professional Responsibility on Federal Criminal Investigations, 4B Op. 
O.L.C. 576, 577 (1980). However, in light of the fact that all 50 
states and the District of Columbia have adopted some form of a 
prohibition on contacts with represented parties, and in view of the 
long history of those rules, the Department believes that its attorneys 
should adhere to the principles underlying those rules to the maximum 
extent possible. Therefore, even though the Department has the 
authority to exempt its attorneys from the reach of these rules, the 
Department has decided not to implement a wholesale exemption.
    Rather, the proposed regulations attempt to reconcile the purposes 
underlying DR 7-104 and Rule 4.2 with effective law enforcement. 
Recognizing the importance of the attorney-client relationship and the 
desirability of an individual who is represented by counsel being fully 
advised by counsel before negotiating legal agreements, the regulations 
provide that federal attorneys may not negotiate plea bargains, 
settlement agreements, immunity agreements or similar arrangements 
without the participation or consent of the individual's attorney. In 
this context, the prosecutor's superior legal training and specialized 
knowledge could be used to the detriment of the untutored layperson. 
Thus, the regulations comport with the principal purpose of DR 7-104 
and Rule 4.2 by insisting that the individual's attorney participate in 
these types of negotiations. At the same time, the regulations would 
permit direct contacts at the preindictment, prearrest investigative 
stage with any individual, whether or not he or she is represented by 
counsel, to inquire about the matters under investigation. The 
regulations are drafted to conform to the approach of most federal 
appellate courts that have considered the matter. See, e.g., United 
States v. Lopez, 4 F.3d 1455 (9th Cir. 1993); United States v. Ryans, 
903 F.2d 731 (10th Cir.), cert. denied, 498 U.S. 855 (1990); United 
States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.), cert. denied, 464 
U.S. 852 (1983); United States v. Kenny, 645 F.2d 1323, 1339 (9th 
Cir.), cert. denied, 452 U.S. 920 (1981); and United States v. 
Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied, 415 
U.S. 989 (1974). The Department believes that public policy and 
effective law enforcement would not be served if one could exempt 
himself or herself from lawful, court-sanctioned investigative 
techniques simply by retaining an attorney. The Department believes 
that it is inappropriate to alter investigative techniques based upon 
an individual's financial ability to retain counsel before the point at 
which a court would appoint counsel for a person not able to afford 
counsel.
    The regulations and the accompanying changes to the United States 
Attorneys' Manual also would give effect to other important aspects of 
the bar rules against contacts with represented parties. For example, 
the regulations would preclude federal attorneys from disparaging an 
individual's counsel or from attempting to gain access to attorney-
client confidences or lawful defense strategy. The guidelines contained 
in the Manual provisions will also make clear that once an individual 
is in a likely adversarial situation with the government and has 
retained an attorney to represent him or her with respect to the 
particular subject matter under investigation, the government attorney 
must take greater care before making any ex parte contacts. While the 
proposed regulations authorize most communications before arrest, the 
proposed Manual changes provide that, as a matter of internal policy 
guidance, federal prosecutors generally should not make overt contacts 
with represented targets of investigations. However, the Manual 
provisions permit overt contacts with a represented target when 
initiated by the target; when necessary to prevent death or physical 
injury; when the relevant investigation involves ongoing, additional or 
different crimes from that to which the representation relates; or when 
a United States Attorney or an Assistant Attorney General expressly 
concludes, under all of the circumstances, that the contact is needed 
for effective law enforcement.
    Finally, the proposed regulations and Manual provisions also 
address when a government attorney may communicate with an employee, 
officer or director of a represented corporation or organization 
without the consent of counsel. The regulations generally prohibit a 
government attorney from communicating with a current, high-level 
employee of a represented organization who participates as a ``decision 
maker in the determination of the organization's legal position in the 
proceeding or investigation of the subject matter'' and the 
organization has been named as a defendant in a criminal or civil law 
enforcement proceeding. The Manual provisions further generally 
prohibit contacts with controlling individuals of organizations that 
have not yet been named as defendants but are targets of federal 
criminal or civil law enforcement investigations without the consent of 
counsel.
    The proposed regulations recognize that state courts and 
disciplinary bodies continue to play the primary role in regulating the 
conduct of all attorneys, including those who work for the federal 
government. Further, Department of Justice attorneys continue to be 
subject to state bar ethical rules except to the limited extent those 
rules conflict with lawful federal procedures and practices. As noted 
above, however, because of the expanded participation of federal 
prosecutors in preindictment investigations, DR 7-104 and Model Rule 
4.2 have inevitably affected and circumscribed the power of federal law 
enforcement officials to carry out their legally mandated 
responsibilities. State courts and disciplinary committees are not the 
appropriate final arbiters of the scope of federal policing. The 
Department of Justice must assume this role, subject to the 
Constitution and the laws of the United States. The new regulations 
would not supplant state discipline. Rather, the regulations would 
provide that attorneys who comply with the new federal rule will be 
shielded from inconsistent state disciplinary rules. On the other hand, 
attorneys who willfully violate the new regulations would continue to 
be subject to the full measure of state disciplinary jurisdiction.
    The Department is confident that, taken together, the proposed 
regulations, Manual amendments and this supplemental information will 
promote the public interest in effective law enforcement conforming to 
the highest standards of legal ethics.

II. Analysis of Comments and Revisions

    A detailed discussion of the comments received following the first 
publication of the earlier proposal is included at 58 FR 39976 (July 
26, 1993).
    The comments received following the second publication of the 
earlier proposal were similar in many respects to those received in the 
first round of comments. As of September 19, 1993, the Department 
received 219 written comments. Of those, 159 comments were received 
from Department of Justice employees. Of those, 144, mostly from 
federal prosecutors from around the country, supported promulgation of 
the earlier proposal; 1 opposed the rule; and 14 others provided 
miscellaneous comments. The Department also received 21 comments from 
federal officials outside the Department, 18 of whom supported the 
proposal.
    The Department received 39 comments from individuals and 
organizations outside of the federal government. These writers included 
private attorneys, public defenders, state court judges, bar 
associations, disciplinary officials and others. Twenty-eight writers 
in that group expressed opposition to the rule while 3 supported the 
proposal.
    Those writing in support of the earlier proposal generally 
emphasized three major points. First, they stated that a clear rule 
governing communications by federal attorneys with represented 
individuals was critical to the vigorous enforcement of federal law. 
Several writers stated that the lack of clarity on the matter created 
by a variety of court and bar association opinions has had a chilling 
effect on federal enforcement efforts. They stated that some federal 
prosecutors fearful of the uncertain state of the law and unwilling to 
risk their licenses to practice law have decided not to engage in 
routine discussions with represented individuals. Second, several 
writers described the practice of some attorneys to claim 
representation of all the employees of a corporate client. They argued 
that this practice, along with the uncertainty of the state of the 
disciplinary rules, often makes it exceedingly difficult to investigate 
wrongdoing by corporations or other organizations. Third, several 
supporters of the previous proposal stated that they did not believe 
that it was the intention of DR 7-104 and Model Rule 4.2 to apply to 
criminal investigations. Furthermore, they argued that if the 
prohibitions in those rules apply to all federal criminal and civil 
investigations the result will be twofold: (1) Federal attorneys will 
be forced to reverse the trend of the last 20 years and become less 
involved in investigations; and (2) federal agents will stop consulting 
with federal attorneys during investigations. Both of these trends will 
result in less effective law enforcement.
    The Department received several comments critical of the earlier 
proposal. Those criticisms fall generally in four categories. First, 
several individuals stated that they believed the proposal would exempt 
Department attorneys from ethical requirements that apply to all other 
attorneys, thus creating a double standard. Furthermore, they argued 
that the proposal improperly equated constitutional minimums with 
ethical conduct. Second, several writers argued that the Attorney 
General did not have the authority to promulgate such a regulation. 
They argued that the proposal unfairly impinged on the traditional 
right of state supreme courts to monitor and discipline attorneys 
admitted to practice before them. They also questioned whether the 
drafters of the ``authorized by law'' exceptions could have intended 
that the Attorney General would be empowered to release Department 
attorneys from the obligations of the rules simply by issuing a 
regulation.
    Third, several people argued that the proposed regulation was not 
necessary for the vigorous enforcement of the law. And fourth, several 
writers commented on various aspects of the proposal itself. The most 
common objection was to the ``controlling individual'' test that the 
proposal used to determine whether communications with a particular 
employee of a represented corporation would be permissible. They argued 
that the test was much too narrow and would only apply to a 
corporation's general counsel and a small handful of very senior 
executives.
    The Department has reviewed, analyzed and carefully considered all 
the comments it received and has made substantial revisions to its 
earlier proposal based on these comments. The Department believes the 
current proposal, in combination with the proposed additions to the 
United States Attorneys' Manual, appropriately addresses the concerns 
of the commenters critical of the earlier proposal, while preserving 
the Department's ability to enforce federal laws. Due to the 
significant nature of the changes made, the Department determined that 
an additional comment period is appropriate.

III. Section-by-Section Analysis

Section 77.1  Purpose and Authority

    This section includes no material changes from the rule published 
earlier. It does, however, include additional discussion regarding the 
purpose of the rule.
    The Attorney General's authority to establish standards of conduct 
for Department of Justice attorneys derives from two distinct sources: 
Section 301 of title 5, United States Code, and title 28 of the United 
States Code, which, through a variety of provisions, authorizes the 
Attorney General and the Department of Justice to enforce federal law. 
Section 301 states that ``[t]he head of an Executive department or 
military department may prescribe regulations for the government of his 
department, the conduct of its employees, [and] the distribution and 
performance of its business.'' Authority to promulgate this rule also 
is implicit in the Attorney General's statutory power to ``supervise 
all litigation'' to which the United States is a party and to direct 
United States Attorneys and other subordinate attorneys in the 
``discharge of their respective duties.'' 28 U.S.C. 519. Other specific 
statutory references are indicated in the text of the rule.

Section 77.2  Definitions

    This section is substantially similar to the definitional section 
of the previous proposal. Two changes, however, are worthy of 
attention:
``Attorney for the Government''
    First, the definition of ``attorney for the government'' has been 
refined explicitly to exclude from the definition those law enforcement 
agents employed by the Department of Justice who are also members of 
state bars, if they are employed as, and are performing the function 
of, agents rather than attorneys. The Federal Bureau of Investigation, 
Drug Enforcement Agency and other investigative agencies have long 
recruited individuals with advanced degrees--including, for example, 
engineering, business and law degrees--to serve as agents. The 
Department strongly encourages the recruitment of educated and 
specially trained individuals for positions as agents. An agent's bar 
membership should not adversely affect his or her ability to conduct 
comprehensive investigations and otherwise to fulfill his or her law 
enforcement functions. Therefore, the proposed rule specifically 
exempts attorney-agents from its scope if they are employed by the 
government as investigative agents and not as attorneys.
``Undercover Investigation''
    Second, the section now includes a definition of the term 
``undercover investigation.'' Under this definition, the hallmark of an 
``undercover operation'' is an investigation in which an individual 
``whose identity as an official of the government or a person acting at 
the behest thereof is concealed or is intended to be concealed.'' This 
definition is intended to be read broadly to include virtually every 
type of law enforcement investigation in which the identity of a 
government employee, or the fact that an individual is cooperating with 
the government, is concealed.

Section 77.3  Represented Party; Represented Person

    This section differs significantly from the corresponding section 
in the earlier proposal in order more closely to follow the language in 
DR 7-104(a)(1) and Rule 4.2, which establish general prohibitions 
against ex parte contacts with a represented party, and to 
differentiate between those individuals who are represented by counsel 
and have become a party to a proceeding, and those represented 
individuals who are not parties to any relevant proceedings.
    An individual is considered to be a ``represented party'' under 
these rules if: (1) The person is represented by counsel; (2) the 
representation is current and concerns the subject matter in question; 
and (3) the person has either been arrested or charged in a federal 
criminal case or is a defendant in a civil law enforcement proceeding 
concerning the subject matter of the representation. If the person is 
currently represented in fact regarding the subject matter in question, 
but has not been charged or arrested, that person is considered a 
``represented person.'' Thus, witnesses, suspects and targets of 
investigations who have not been indicted or arrested are considered 
represented persons under this rule and in the United States Attorneys' 
Manual guidelines.
    Section 77.5 of this rule generally prohibits government attorneys 
from initiating ex parte contacts with represented parties, but does 
not prohibit ex parte contacts with represented persons. (However, 
Secs. 77.8 and 77.9 prohibit some contacts with represented persons as 
well.) This distinction between represented parties and represented 
persons is consistent with the rulings of the vast majority of federal 
courts to consider the issue. See United States v. Infelise, 773 F. 
Supp. 93, 95 n.3 (N.D. Ill. 1991) (DR 7-104(A)(1) ``speaks in terms of 
communications with a `party', suggesting that the rule is to be 
applied only when adversarial proceedings have been initiated.''); 
United States v. Ryans, 903 F.2d 731, 739 (10th Cir.) (``We are not 
convinced that the language of [DR 7-104(A)(1)] calls for its 
application to the investigative phase of law enforcement'' because 
``the rule appears to contemplate an adversarial relationship between 
litigants, whether in a criminal or a civil setting.''), cert. denied, 
498 U.S. 855 (1990); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 
1983) (agent's ``noncustodial interview of [suspect] prior to the 
initiation of judicial proceedings against the appellant did not 
constitute an ethical breach''); United States v. Kenny, 645 F.2d 1323, 
1339 (9th Cir.), cert. denied, 452 U.S. 920 (1981); United States v. 
Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973), cert. denied, 415 U.S. 
989 (1974); In re U.S. Dept. of Justice Antitrust Investigation, 1992-2 
Trade Cases (CCH)  69,933, at 68,469 (D. Minn. 1992) (Rule 4.2 held 
inapplicable because ``[t]he word `parties' in Rule 4.2 indicates the 
presence of a lawsuit'' and ``[t]he present controversy relates to an 
investigation, not a lawsuit''); United States v. Western Electric Co., 
Inc., 1990-2 Trade Cases (CCH)  69,148, at 64,314 & n.6 (D.D.C. 1990); 
United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987); 
Faragher v. National R.R. Passenger Corp., 1992 U.S. Dist. LEXIS 1810 
at *2-3 (E.D. Pa. 1992). Only the Second Circuit has suggested that DR 
7-104(A)(1) may apply to federal law enforcement activities before 
indictment or arrest. See United States v. Hammad, 858 F.2d 834, 838-39 
(2d Cir. 1988); United States v. Pinto, 850 F.2d 927, 935 (2d Cir.), 
cert. denied, 488 U.S. 867 (1988); United States v. Sam Goody, Inc., 
518 F. Supp. 1223, 1224-25 n.3 (E.D.N.Y. 1981), appeal dismissed, 675 
F.2d 17 (2d Cir. 1982).

Section 77.4  Constitutional and Other Limitations

    This section is substantially similar to the corresponding section 
in the earlier proposal. The section has been revised slightly to make 
clear that although the proposed rule does not supersede the Federal 
Rules of Civil Procedure and the Federal Rules of Criminal Procedure, 
this limitation does not extend to other rules regarding procedure in 
federal courts. Thus, rules of procedure adopted by individual courts 
as local rules, many of which incorporate state bar rules, are not 
included in this limitation.

Section 77.5  General Rule for Civil and Criminal Enforcement; 
Represented Parties

    This section, as well as sections 77.6 through 77.9, differs 
substantially from corresponding sections contained in the earlier 
proposal.
    This section closely tracks the language of DR 7-104(A)(1) and Rule 
4.2 and applies similar prohibitions to attorneys for the government. 
The section prohibits an attorney for the government from communicating 
with a represented party, as defined in Sec. 77.3, about the subject 
matter of the representation without the consent of that individual's 
attorney. The prohibition applies, however, only if the attorney for 
the government knows that the represented party is, in fact, 
represented by counsel. Therefore, communications by an attorney for 
the government with a represented party will not violate this rule if 
the attorney for the government is unaware of the fact of 
representation.
    This section also prohibits an attorney for the government from 
causing another individual to communicate with a represented party. 
Accordingly, a government investigator acting at the attorney's 
direction and control may not do what the attorney himself or herself 
is prohibited from doing. Conversely, a government attorney will not be 
personally responsible for the actions of agents in communicating with 
represented persons unless, in doing so, the agents were acting as the 
attorney's ``alter ego.''
    It also should be noted that this provision is violated (and thus, 
a basis for departmental discipline exists) when an inappropriate 
communication takes place, regardless of whether or not the 
communication results in eliciting an inculpatory statement or is 
otherwise prejudicial to the represented party.

Section 77.6  Exceptions; Represented Parties

    This section describes the circumstances under which Department 
attorneys may communicate, or cause others to communicate, with a 
represented party who the Department attorney knows is represented 
concerning the subject matter of the representation without first 
obtaining the consent of the represented party's counsel. The 
exceptions enumerated in this section are similar to, but not identical 
with, the exceptions enumerated in Sec. 77.7 of the earlier proposal.

Paragraph (a): Determination if Representation Exists

    This exception recognizes the fact that there is no reason to 
prohibit a limited inquiry about whether an individual is, in fact, 
represented by counsel regarding the relevant subject matter. Such an 
inquiry does not involve the kind of communication about which courts 
have expressed concern and has little potential for undermining the 
attorney-client relationship.
    There may be uncertainty about the existence of representation with 
respect to whether it has been established, whether it may have been 
terminated, and whether a particular subject falls within the scope of 
the representation. The first issue may arise when a judicial or other 
appearance has not occurred, but the government attorney has some 
information suggesting that the person may be represented. It may also 
arise when an attorney purports to represent a group of persons, such 
as all the employees of a corporation. Uncertainty about the 
termination of the representation may arise when substantial time has 
passed since it was made known that the person was represented by 
counsel or when the attorney for the government has reason to believe 
that the representation has ceased. It is unlikely, however, that such 
uncertainty will arise when there are pending judicial proceedings, 
since the court must approve termination of representation.
    When inquiring about the status of representation, government 
attorneys and agents generally must refrain from stating whether it is 
necessary or desirable to be represented by counsel. After the right to 
counsel has attached, a statement or implication suggesting that 
counsel is not providing proper or effective representation could 
violate the Sixth Amendment right to effective assistance of counsel. 
See United States v. Morrison, 449 U.S. 361, 364 (1981).
    This exception is not intended to and does not create a duty on the 
part of the attorney for the government to inquire about the status of 
representation. However, if the attorney for the government has any 
reason to believe that the individual is represented by counsel with 
regard to the relevant subject matter, he or she should, as a matter of 
course, make the appropriate inquiries before engaging in substantive 
discussions with the individual.

Paragraph (b): Discovery or Judicial or Administrative Process

    Any communication that is authorized by discovery procedures, such 
as a deposition of a party-opponent, or by judicial or administrative 
process, such as a grand jury, deposition, or trial subpoena or an 
administrative summons, obviously should not be prohibited by any rule. 
See United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir. 1989), cert. 
denied, 493 U.S. 1071 (1990) (prosecutor's questioning of represented 
person before the grand jury outside the presence of counsel is 
``authorized by law'' under DR 7-104). Among other reasons, a person 
who is served with process has an opportunity to consult with counsel 
prior to his or her appearance at the proceeding, and may have counsel 
present if desired during the proceeding (except, of course, while 
testifying before a grand jury). This provision ensures that such 
communications continue to be allowed.
    This exception does not purport to authorize any communications not 
otherwise available pursuant to discovery procedures or legal process.

Paragraph (c): Initiation of Communication by Represented Party

    One of the concerns most frequently raised by Department attorneys 
during the comment period on the previous proposal was the lack of 
clarity under current law regarding the propriety of communicating with 
a represented party, in the absence of that party's counsel, when the 
communication is initiated by the party. A defendant may wish to 
communicate with the government outside the presence of counsel for 
many valid reasons. Department attorneys repeatedly cited the situation 
in which a defendant wants to cooperate with the government but does 
not want his or her attorney to know for fear that the attorney will 
disclose the defendant's intentions to others. This situation typically 
arises when the defendant questions the loyalty of his or her attorney, 
who is being paid by another individual involved in a criminal 
enterprise. The same problem may arise when a single attorney 
represents multiple parties who are part of the same criminal 
enterprise.
    When the desire of a defendant or arrestee to speak with the 
attorney for the government outside the presence of his or her counsel 
is ``voluntary, knowing and informed,'' there is no valid reason to 
prohibit the government from engaging in such communications. In fact, 
the Department believes that it would be a dereliction of its 
obligation to enforce vigorously federal law if it promulgated a rule 
that would prohibit such communications.
    It is well established that an individual who is entitled to 
counsel under the Fifth Amendment or the Sixth Amendment may waive that 
right and choose to communicate with the government outside the 
presence of his or her attorney, ``provided the waiver is made 
voluntarily, knowingly and intelligently.'' Moran v. Burbine, 475 U.S. 
412, 421 (1986) (internal quotations omitted); Patterson v. Illinois, 
487 U.S. 285, 292 (1988); Brewer v. Williams, 430 U.S. 387, 404-06 
(1977). In such a situation, the defendant should not be prohibited 
from engaging in communications that are allowed by the Constitution by 
a disciplinary rule that was intended to protect that individual in the 
first place. Neither common sense nor the principles underlying DR 7-
104 and Rule 4.2 require such a result.
    This paragraph amends the previous proposal by adding procedural 
protections designed to ensure that such waivers are in fact voluntary, 
knowing, and informed. After a represented individual has been arrested 
or charged in a criminal proceeding or is named as a defendant in a 
civil law enforcement proceeding, the proposed rule requires that 
several steps be taken before any substantive discussions take place. 
First, the government attorney must inform the individual of his or her 
right to speak through his or her attorney and to have that attorney 
present for any communications with the government attorney. Second, 
the represented party must waive his or her right to counsel in such a 
way as to indicate that the waiver is voluntary, knowing and informed. 
If at all possible, the attorney for the government should obtain a 
signed written waiver. Third, the attorney for the government must 
bring the matter before the appropriate district court judge, 
magistrate or other tribunal of competent jurisdiction. The court 
should be asked for a determination: That the waiver satisfies the 
provisions of this rule; or that substitute counsel is in place and 
that counsel consents to the communication; or, in the alternative, 
that it is appropriate for the court to appoint counsel.
    The rule does not, however, require that the waiver take place 
before the judge or magistrate. In exceptional circumstances, it may be 
impractical or unsafe to bring the defendant before a judge or 
magistrate to secure the waiver. In those cases, the tribunal must 
determine in advance of substantive discussions, based on the evidence 
before it, whether the waiver was made knowingly, intelligently and 
voluntarily.
    As noted above, the initiation of ex parte contacts by represented 
parties frequently occurs in the context of the ``fearful defendant'' 
whose attorney has been chosen by a third party, often an individual 
above the defendant in the criminal hierarchy. Such a defendant may 
wish to cooperate with the government but may fear that his life or 
safety will be endangered if his attorney learns of the cooperation. 
Although the need for a mechanism by which a represented party can 
initiate contacts with the government is particularly acute in this 
context, paragraph (c) is not limited to this setting. Rather, the 
proper inquiry is whether the represented party's waiver of the right 
to counsel is voluntary, knowing, and informed--not whether the 
represented party has established some overriding justification for his 
or her decision.

Paragraph (d): Waivers at the Time of Arrest

    Paragraph (c) of this section provides the general rule regarding 
how a represented party may waive any protections otherwise provided 
under this regulation. This paragraph provides for a more specific rule 
dealing with a waiver at the time of arrest.
    This paragraph provides that a government attorney may communicate 
directly with a represented party without the consent of that party's 
counsel at the time of his or her arrest if the represented party has 
been fully informed of his or her Constitutional rights at that time 
and has waived them. The government attorney need not comply with any 
of the additional requirements of paragraph (c) in such a situation. 
However, it is generally prudent to obtain a written waiver at the time 
of arrest if possible.
    This exception is intended to preserve the ability of government 
attorneys to interview individuals immediately following arrest as an 
effective and important law enforcement tool. A substantial body of law 
has developed regarding the post-arrest waiver of various 
Constitutional rights. The Department believes that the Constitutional 
requirements identified in that decisional law adequately protect 
represented individuals following arrest. Furthermore, the 
effectiveness of post-arrest interviews would be significantly 
curtailed if the procedural requirements of paragraph (c) applied. 
Accordingly, this paragraph is intended to preserve this investigative 
tool without adding any additional procedural requirements.

Paragraph (e): Investigation of Additional, Different or Ongoing Crimes 
or Civil Violations

    This paragraph is similar to, but not identical with, Sec. 77.7(d) 
of the previously published proposal.
    The Sixth Amendment right to counsel is ``offense-specific.'' 
McNeil v. Wisconsin, 111 S. Ct. 2204, 2207 (1991). Thus, a defendant 
whose Sixth Amendment rights have attached as to one offense remains 
subject to questioning, whether direct or covert, regarding uncharged 
crimes. Id.; Maine v. Moulton, 474 U.S. 159, 180 n.16 (1985); United 
States v. Mitcheltree, 940 F.2d 1329, 1342 (10th Cir. 1991); United 
States v. Terzado-Madruga, 897 F.2d 1099, 1111-12 (11th Cir. 1990); 
United States v. Chu, 779 F.2d 356, 368 (7th Cir. 1985); United States 
v. Grego, 724 F.2d 701, 703 (8th Cir. 1984). The proposed rule employs 
an analogous approach, permitting ex parte contacts with a represented 
party if the contacts involve the investigation of offenses as to which 
the represented party has neither been arrested nor charged in a 
criminal or civil law enforcement proceeding. The Department believes 
this approach is wholly consistent with DR 7-104 and Model Rule 4.2 and 
the cases interpreting them.
    Accordingly, this section provides that communications may be made 
in the course of investigations of additional, different or ongoing 
criminal or unlawful activity, even though the individual is 
represented by counsel with respect to conduct for which he or she has 
already been arrested or charged. Such additional criminal or unlawful 
conduct is typically one of three varieties: (1) Conduct that is 
separate from the original wrongful conduct; (2) crimes that are 
intended to impede the trial of the charged crime or unlawful conduct, 
such as subornation of perjury, obstruction of justice, jury tampering, 
or murder, assault, or intimidation of witnesses; and (3) conduct that 
is a continuation of the charged crime, such as a conspiracy or scheme 
to defraud that continues past the time of indictment. The new or 
additional criminal or wrongful activity may have occurred in the past 
or may be ongoing at the time of the investigation.
    By definition, communications pursuant to this exception will take 
place when the represented party is the subject of pending criminal or 
civil enforcement charges for which he or she is represented by 
counsel. Government attorneys must take extreme care to avoid violating 
the Sixth Amendment right to counsel whenever they invoke this 
exception in the criminal context. In particular, care must be taken to 
avoid the deliberate elicitation of incriminating information regarding 
any pending criminal charges.

Paragraph (f): Imminent Threat to Safety or Life

    The Supreme Court has recognized that, in certain limited 
situations, otherwise applicable constitutional requirements may be 
suspended by the need to guard against threats to public safety. See 
Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (warrantless search 
permissible when delay would endanger lives of officers and citizens); 
New York v. Quarles, 467 U.S. 649, 657 (1984) (``the need for answers 
to questions in a situation posing a threat to the public safety 
outweighs the need for the [Miranda] prophylactic rule protecting the 
Fifth Amendment's privilege against self-incrimination''). Paragraph 
(f) recognizes an analogous exception to the general prohibition 
against communications with represented parties in the absence of their 
counsel. It is the Department's intention that this exception be 
invoked only in rare circumstances and only for the purpose of 
protecting human life or safety.
    The exception has three requirements: (1) The attorney for the 
government must have a good faith belief that the safety or life of any 
person is threatened; (2) the purpose of the communication must be to 
obtain information to protect against the risk of injury or death; and 
(3) the attorney for the government must, in good faith, believe that 
the communication is reasonably necessary to protect against such risk. 
These requirements are imposed to ensure that the exception is invoked 
only to protect human life or safety, and not as a routine matter in 
violent crime prosecutions. For example, the fact that potentially 
dangerous firearms have not been recovered would not in and of itself 
be sufficient under ordinary circumstances to constitute a threat to 
safety under this exception. Furthermore, the communication must be for 
the purpose of protecting human life or safety, and may not be designed 
to elicit testimonial evidence. However, information thus obtained may 
be used for any purpose consistent with Constitutional limitations.

Section 77.7  Civil and Criminal Enforcement; Represented Persons

    As addressed in the discussion of Sec. 77.3, individuals and 
organizations who are neither defendants nor arrestees are not 
``parties'' within the meaning of this rule, and the general 
prohibition on ex parte contacts therefore does not apply. This section 
makes clear that attorneys for the government are authorized to 
communicate, directly or indirectly, with a represented person unless 
the contact is prohibited by some other provision of federal law. These 
communications are subject, however, to the restrictions set forth in 
Secs. 77.8 and 77.9. Furthermore, proposed changes to the United States 
Attorneys' Manual included in this commentary will provide additional 
guidance to Department attorneys in such situations.

Section 77.8  Represented Persons and Represented Parties; Plea 
Negotiations

    This section prohibits government attorneys from initiating or 
engaging in negotiations of certain specified legal agreements with any 
individual who the government attorney knows is represented by counsel, 
without the consent of that individual's counsel. Even when substantive 
discussions with a represented party or represented person are 
permissible under these regulations, it ordinarily would be improper 
for a government attorney to initiate or negotiate a plea agreement, 
settlement, immunity agreement or any other disposition of a claim or 
charge in the absence of the individual's counsel. The one exception to 
this prohibition occurs when the communication is initiated by the 
represented person or represented party and the procedural safeguards 
provided for in Sec. 77.6(c) are satisfied.
    The Department believes that this section is vitally important for 
the preservation of the attorney-client relationship. One of the 
primary purposes informing Rule 4.2 and DR 7-104 is that an individual 
represented by counsel should be protected from overreaching by an 
attorney for an adversary. The Department believes the risk of such 
overreaching is greatest during negotiations over plea agreements, 
settlements and other key legal agreements. The training, experience 
and knowledge of the law possessed by an attorney is particularly 
valuable in such situations.
    The prohibition contained in this section includes all discussions 
of the terms of a particular plea agreement, settlement agreement or 
other agreement covered by the section. However, this section does not 
prohibit an attorney for the government from responding to questions 
regarding the nature of such agreements, potential charges, potential 
penalties or other subjects related to such agreements during an 
otherwise permissible discussion. Nevertheless, an attorney for the 
government should take care in such situations not to go beyond 
providing information on these and similar subjects and should 
generally refer the represented person to his or her counsel for 
further discussion of these issues. The government attorney should also 
make it clear that he or she will not negotiate any agreement with 
respect to the disposition of criminal charges, civil claims or 
potential charges or claims or immunity without the presence or consent 
of counsel.

Section 77.9  Represented Persons and Represented Parties; Respect for 
Attorney-Client Relationships

    When an attorney for the government communicates with a represented 
party pursuant to one or more of the exceptions listed in Sec. 77.6, or 
with a represented person pursuant to Sec. 77.7, the communication is 
nevertheless subject to the restrictions of this section.

Paragraph (a): Deference to Attorney-Client Relationship

    DR 7-104(A)(1) and Rule 4.2 protect a represented party's right, if 
he or she so chooses, to communicate with his or her adversary only 
through counsel. The rules do not compel one to make that choice, and 
the represented party may elect to speak directly with the government 
despite his or her attorney's advice not to do so. As a further 
protective measure, federal courts have recognized that it is improper 
for an attorney for the government to disparage counsel for the 
represented party or otherwise to seek to disrupt the relationship 
between that party and his attorney. See, e.g., United States v. 
Morrison, 449 U.S. 361, 362, 367 (1981); United States v. Weiss, 599 
F.2d 730, 740 (5th Cir. 1979); id. at 740-41 (Godbold, J., specially 
concurring). This paragraph codifies those basic principles by 
prohibiting communications that: (1) Attempt to elicit information 
regarding lawful defense strategies; (2) disparage the represented 
party's counsel; or (3) otherwise disrupt the attorney-client 
relationship. These prohibitions apply in every phase of criminal and 
civil enforcement investigations and proceedings.
    However, the paragraph also accommodates an important exception to 
this prohibition. Courts have held that a government attorney may not 
permit legal proceedings to go forward if he or she is aware of a 
conflict of interest between a represented party and his or her lawyer. 
See United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986). Under 
these circumstances, the attorney for the government ordinarily should 
move to disqualify the lawyer involved, if legal proceedings have 
already commenced. If it is not feasible to move for disqualification 
or otherwise challenge the representation, this paragraph allows an 
attorney for the government to communicate with the represented 
individual for the limited purpose of apprising the represented 
individual of the perceived conflict. However, any substantive 
discussion of the subject matter of the representation is permissible 
only insofar as it is authorized by some other provision of this rule.
    In order to ensure that this provision is used only in rare 
circumstances, the rule would require prior authorization for such 
communications from the Attorney General, the Deputy Attorney General, 
the Associate Attorney General, an Assistant Attorney General or a 
United States Attorney. The authorization should be in writing if at 
all possible. Furthermore, before providing approval, the authorizing 
officer must find: (1) A substantial likelihood of a conflict; and (2) 
that it is not feasible to obtain a court order on the matter.

Paragraph (b): Attorney-Client Meetings

    The attendance of an undercover agent or a cooperating witness at 
lawful meetings of an individual and his or her attorneys is ordinarily 
an improper intrusion into the attorney-client relationship. The courts 
have recognized, however, that such attendance occasionally will be 
required when the operative is invited to participate and his or her 
refusal to do so would effectively reveal his or her connection to the 
government. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 557 (1977); 
United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985); United 
States v. Mastroianni, 749 F.2d 900, 906 (1st Cir. 1984). As the First 
Circuit has noted, a contrary rule ``would provide the defense with a 
quick and easy alarm system to detect the presence of any informants, 
simply by inviting all known associates of defendants to a supposed 
defense strategy meeting.'' Mastroianni, 749 F.2d at 906.
    Attendance at such meetings, however, intrudes into the attorney-
client relationship and impairs the right of the defendant to a fair 
trial. Accordingly, this section provides that undercover agents or 
cooperating witnesses may participate in such meetings, but only when 
requested to do so by the defense and when reasonably necessary to 
protect their safety or life, or the confidentiality of an undercover 
operation. See Weatherford, 429 U.S. at 557 (informant went to meeting 
``not to spy, but because he was asked and because the State was 
interested in retaining his undercover services on other matters and it 
was therefore necessary to avoid raising the suspicion that he was in 
fact the informant whose existence [the defendant and his counsel] 
already suspected'').
    However, even when an undercover operative's attendance at such a 
meeting is authorized to protect his or her cover and safety, any 
information acquired regarding lawful defense strategy or trial 
preparation may not be communicated to government attorneys or 
otherwise used to the substantial detriment of the represented party. 
See Weatherford, 429 U.S. at 558; Ginsberg, 758 F.2d at 833; 
Mastroianni, 749 F.2d at 906. As a safeguard, this rule provides that 
such information should not be communicated to the attorneys for the 
government or law enforcement agents who are participating in the trial 
of the pending criminal charges.
    When there is reasonable cause to believe that the purpose of the 
meeting is not the lawful defense of the underlying charges, but the 
commission of a new or additional crime (such as bribery of a witness 
or subordination of perjury), attendance by informants or undercover 
agents at attorney-client meetings is permissible pursuant to 
Sec. 77.6(e). The belief, however, must be based on reasonable cause, 
not mere suspicion or conjecture. See Mastroianni, 749 F.2d at 906. 
Furthermore, the prohibition against communication of lawful defense 
strategy to the prosecution should be observed if, in fact, such 
strategy is imparted to the informant or agent.
    Government attorneys should give serious consideration to the 
extreme sensitivity of permitting agent and informant attendance at 
defense meetings. Agents and informants should be instructed to avoid 
participating in such meetings, and to minimize their participation 
when attendance is required, if it is possible to do so without 
arousing suspicion. Agents or witnesses who attend defense meetings 
should also be instructed to avoid taking any role in the shaping of 
defense strategy or trial preparations. Finally, agents and informants 
should be instructed to avoid imparting defense strategy or trial 
preparation information to any other law enforcement officials if 
reasonably feasible to do so.
    Finally, this restriction applies only to law enforcement officials 
and cooperating witnesses who are acting as ``agents for the 
government'' at the time of the communication. If one of several co-
defendants who attended an attorney-client defense strategy meeting 
later testifies for the government at trial, no violation will have 
occurred as long as the co-defendant was not a government agent at the 
time of the meeting. United States v. Brugman, 655 F.2d 540, 545-46 
(4th Cir. 1981).

Section 77.10  Organizations and Employees

    This section is similar in structure to Sec. 77.13 of the 
previously published proposal. However, it includes several substantive 
changes based on comments received during earlier comment periods.
    The issue addressed by this section--when should a communication 
with an employee or member of a represented organization be considered 
a communication with the organization itself--is one of the most 
difficult issues addressed by these regulations. It was also perhaps 
the most commented upon provision during the comment period. Several 
federal prosecutors commented that they regularly encounter attorneys 
who assert that they represent every individual in a large corporation 
or organization. Others stated that these blanket claims of 
representation extend to all the former employees as well. These 
prosecutors argued for a bright line rule to prevent such abuse and 
generally commented favorably on the earlier proposal. Others argued 
that the earlier proposal was too narrow in scope and would deprive 
corporations and other organizations of the effective assistance of 
counsel.
    The Department believes that this section, and particularly the 
definition of ``controlling individual'' in Sec. 77.10(a), strikes an 
appropriate balance, one that ensures government attorneys the ability 
to enforce federal law, while preserving the opportunity for 
corporations and other organizations to secure effective assistance of 
counsel.

Paragraph (a): Communications With Current Employees; Organizational 
Representation

    This paragraph states that a communication with a current employee 
of an organizational party or person should be treated as a 
communication with the organization for purposes of this part only if 
the employee is a controlling individual. If a communication with a 
current employee is considered to be a communication with a represented 
organization under these rules (that is, if the communication is with a 
controlling individual), then that communication is subject to the same 
limitations that would apply if the communication were directly with 
the represented organization.
    In accord with the basic structure of this part, which 
distinguishes between represented parties and represented persons, this 
paragraph effectively provides that when an organization is a 
represented party, an attorney for the government shall not 
communicate, or cause another to communicate (subject to the exceptions 
enumerated in Sec. 77.6), with any controlling individual of the 
organization without the consent of the organization's attorney. In 
contrast, when an organization qualifies as a represented person, an 
attorney for the government may communicate, or cause another to 
communicate, with any controlling individual if the communication does 
not involve negotiations of a plea agreement, settlement, statutory or 
non-statutory immunity agreement, or other disposition of actual or 
potential criminal charges or civil enforcement claims, or sentences or 
penalties, as prohibited by Sec. 77.8, and if the communication does 
not violate the provisions of Sec. 77.9.
    The definition of ``controlling individual'' is intended to 
encompass those individuals who typically are part of the 
organization's control group. A controlling individual under this 
definition must: (1) Be a current employee or member of the 
organization; (2) hold a high level position with the organization; (3) 
participate ``as a decision maker in the determination of the 
organization's legal position in the proceeding or investigation of the 
subject matter''; and (4) be known by the government to be engaged in 
such activities. This definition attempts to identify those limited 
number of individuals affiliated with the organization who actually are 
involved in determining the organization's position with regard to the 
legal proceeding or investigation.
    DR 7-104 and Rule 4.2 are intended to protect the attorney-client 
relationship from unnecessary interference and to protect represented 
parties from overreaching by opposing counsel. Communications with 
those high-level individuals affiliated with or employed by an 
organization who are responsible for employing and directing the 
organization's counsel and for determining legal positions taken by the 
organization are the type of communications prohibited by DR 7-104. 
Accordingly, this paragraph defines ``controlling individual'' 
consistent with the principles underlying the disciplinary rules on ex 
parte contacts.
    Of all the issues pertaining to 7-104(A)(1), the issue of 
organizational representation has engendered the greatest confusion and 
disagreement among the lower federal courts. Courts considering the 
question have applied a variety of modes of analysis, either singly or 
in combination. The Department believes the best approach is that 
adopted by those courts that have attempted to identify an 
organization's ``control group.'' See, e.g., Shealy v. Laidlaw Bros., 
34 FEP Cases 1223, 1225 (D.S.C. 1984) (a corporate ``party'' under DR 
7-104(A)(1) includes ``a person whose employer's interests are, by 
virtue of his position of employment, so close to his own and to his 
heart that he could be depended upon in all events to carry out his 
employer's direction''); B.H. by Monahan v. Johnson, 128 F.R.D. 659, 
663 (N.D. Ill. 1989) (``only `those individuals who can bind it [the 
defendant] to a decision or settle controversies on its behalf' would 
be considered parties for purposes of DR 7-104''); Frey v. Department 
of Health & Human Servs., 106 F.R.D. 32, 35 (E.D.N.Y. 1985) (``the Rule 
applies to those employees of a government agency who are the `alter 
egos' of the entity, that is, those individuals who can bind it to a 
decision or settle controversies on its behalf''); Fair Auto. Repair v. 
Car-X Serv. Systems, 128 Ill.App.3d 763, 771, 471 N.E.2d 554, 560 
(1984) (DR 7-104(A)(1) prohibits ex parte contacts with corporate 
defendant's ``control group,'' defined as ``those top management 
persons who had the responsibility of making final decisions and those 
employees whose advisory roles to top management are such that a 
decision would not normally be made without those persons' advice or 
opinion or whose opinions in fact form the basis of any final 
decision'').
    The Department believes that the ``control group'' approach most 
accurately reflects the values underlying DR 7-104(A)(1) and Rule 4.2. 
This approach properly seeks to identify those employees who exercise 
such sufficient authority within the organization that communications 
with them should be regarded as communications with the organization 
itself. The Department also believes that the alternative approaches 
would impose unacceptable constraints on federal law enforcement.

Paragraph (b): Communications With Former Employees; Organizational 
Representation

    This paragraph authorizes communications with former employees of 
represented organizations. Because former employees do not direct the 
affairs of the organization and therefore cannot be considered members 
of the ``control group'' or any other controlling entity of an 
organization, communications with them are not considered 
communications with the organization for purposes of the proposed rule. 
This reasoning is consistent with the conclusion of the majority of 
federal courts that have held that DR 7-104(A)(1) does not bar 
communications with former employees of a represented corporate party. 
See, e.g., Hanntz v. Shiley, Inc., 766 F. Supp. 258, 267 & n.8 (D.N.J. 
1991); Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F. 
Supp. 899, 904 (E.D.Pa. 1991); Shearson Lehman Bros., Inc. v. Wasatch 
Bank, 139 F.R.D. 412, 417-18 (D.Utah 1991); Sherrod v. Furniture 
Center, 769 F. Supp. 1021, 1022 (W.D. Tenn. 1991); Dubois v. Gradco 
Systems, Inc., 136 F.R.D. 341, 345 n.4 (D.Conn. 1991); Polycast 
Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 628 (S.D.N.Y. 
1990). See also ABA Comm. on Ethics and Professional Responsibility, 
Formal Op. 359 (1991) (``Accordingly, it is the opinion of the 
Committee that a lawyer representing a client in a matter adverse to a 
corporate party that is represented by another lawyer may, without 
violating Model Rule 4.2, communicate about the subject of the 
representation with an unrepresented former employee of the corporate 
party without the consent of the corporation's lawyer.''). But see PPG 
Industries, Inc. v. BASF Corp., 134 F.R.D. 118, 121 (W.D.Pa. 1990); 
Public Serv. Elec. & Gas v. Associated Elec. & Gas, 745 F. Supp. 1037, 
1042 (D.N.J. 1990).

Paragraph (c): Communications With Former or Current Employees; 
Individual Representation

    This paragraph provides that if a former or current employee or a 
member of an organization retains his or her own counsel, the 
government shall provide the same protection to him or her that would 
be provided under this part to any other represented person or 
represented party. Communications with that individual are subject to 
the limitations set forth in this part. Although this section provides 
the general rule for such communications, paragraph (d) addresses the 
specific situation in which a controlling individual of a represented 
organization retains separate counsel.
    This paragraph also provides that the government will not accept, 
for purposes of this rule, blanket claims by counsel that he or she 
represents all or a large number of employees of the organization. It 
is important to note that this provision is only relevant when the 
attorney for the government would be prohibited by some other provision 
of this part from contacting an individual falling under the broad 
claims of representation under question. For example, an attorney for 
the government may contact a low-level employee of a corporation, 
without consent of that employee's counsel or the corporation's 
counsel, regarding a matter for which the corporation has already been 
indicted as part of an undercover or overt factual investigation, if 
that individual has not been arrested or named as a defendant in a 
criminal or civil law enforcement proceeding. Therefore, the fact that 
an attorney has stated that he or she represents that individual will 
have no bearing on whether the communication is proper.
    However, if a particular communication with an individual employee 
included in such a claim of representation would be improper under 
these regulations if he or she were in fact represented by counsel (for 
example, communications to negotiate a plea agreement), then this 
paragraph provides that a government attorney must first inquire 
whether the employee is in fact represented before undertaking 
substantive communications with the employee. As part of this inquiry, 
the government attorney is not required to disclose to the employee the 
fact that counsel has asserted that he or she represents the employee. 
If the employee indicates that he or she is not represented by counsel, 
it is proper for the government attorney to treat the employee as 
unrepresented. If the employee indicates that he or she is represented 
by counsel with regard to the relevant subject matter, the attorney for 
the government shall treat that employee as a represented person or 
represented party, and any further communications with that individual 
shall be governed by this part.

Paragraph (d): Communications With Separately Represented Controlling 
Individuals

    This paragraph ensures that communications with a controlling 
individual of an organization that qualifies as a represented party are 
subject to basically the same limitations, regardless of whether the 
controlling individual has retained separate counsel on the same 
subject matter. Thus, this paragraph only applies in the circumstances 
in which a controlling individual of a represented organizational party 
retains separate counsel. In such circumstances, a government attorney 
may not communicate with the controlling individual without the consent 
of that individual's separate counsel unless the communication 
satisfies one of the exceptions contained in Secs. 77.6 or 77.9 of this 
part. The paragraph also allows such communications if the individual 
does not qualify as a represented party, initiates the communication, 
and waives the presence of counsel. Thus, the same rules apply to 
contacts with controlling individuals of represented organizational 
parties who retain separate counsel as apply to controlling individuals 
of represented organizational parties who are not separately 
represented.

Paragraph (e): Communications With Unrepresented Controlling 
Individuals

    This paragraph addresses a relatively narrow circumstance: when a 
controlling individual who is not individually represented by counsel 
initiates a communication with the government outside the presence of 
counsel for the organization. An attorney for the government may 
participate in such communications if: (1) The controlling individual 
indicates that he or she is speaking exclusively in his or her personal 
capacity and not as a representative of the organizational party; and 
(2) he or she indicates that the waiver of counsel is voluntary, 
knowing and informed and, if willing, signs a statement to that effect. 
The fact that the controlling individual indicates that he or she is 
speaking in his or her personal capacity does not mean, however, that 
incriminating testimony received from the controlling individual cannot 
be used against the represented organization.
    If the controlling individual is also a named defendant in a civil 
enforcement proceeding or has been arrested or charged in a criminal 
action, the requirements set forth in Sec. 77.6(c) must be satisfied 
before any substantive communications are made.

Paragraph (f): Multiple Representation

    This paragraph makes clear that the proposed regulations should not 
be construed as altering existing legal and ethical rules regarding the 
propriety of multiple representation.

Section 77.11  Enforcement of Rules Paragraph (a): Enforcement by 
Attorney General

    In order to ensure consistency and uniformity in the interpretation 
of the proposed rule, this paragraph provides that the Attorney General 
shall have exclusive authority to enforce these regulations. Thus, 
neither state courts nor state disciplinary boards may impose sanctions 
on a Department attorney for violations of this rule or state or local 
rules governing communications with represented parties except as 
provided in Sec. 77.12. This paragraph further provides the framework 
for investigating allegations that a Department attorney has violated 
these regulations. It provides that the Department's Office of 
Professional Responsibility (``OPR'') shall have jurisdiction to 
investigate such allegations and that violations will be treated as 
matters of attorney discipline. See 28 CFR 0.39 (establishing and 
defining duties of OPR). It also makes clear that the Attorney 
General's determination as to whether a violation has occurred shall be 
final and conclusive except to the extent that the Department attorney 
enjoys a right of review provided by other laws.

Paragraph (b): No Private Remedies

    This paragraph provides that the proposed regulations are not 
intended and will not create any substantive rights for any person 
other than an attorney for the government. In particular, a violation 
of the rule will not provide a basis for the dismissal of civil or 
criminal charges or for the suppression of evidence that is otherwise 
admissible. This provision accords with existing law. Traditionally, 
matters relating to communications with represented persons have been 
treated as matters of attorney discipline without granting substantive 
rights to defendants or any other persons. See, e.g., ABA Code of 
Professional Responsibility, Preliminary Statement; ABA Model Rules of 
Professional Conduct, Scope. Of course, when the communication with a 
represented person or represented party violates the Constitution, the 
federal courts retain the power to fashion appropriate remedies.

Section 77.12: Relationship to State and Local Regulation

    Both DR 7-104 and Model Rule 4.2 provide that communications that 
are ``authorized by law'' are not prohibited by the rule. Virtually all 
the states have adopted some version of DR 7-104 or Model Rule 4.2 that 
includes an ``authorized by law'' exception. These proposed rules, as 
substantive regulations duly promulgated by the Attorney General 
pursuant to statutory authority, have the force and effect of law. See 
e.g. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). Accordingly, 
communications with represented persons that are undertaken pursuant to 
these rules should be considered ``authorized by law'' within the 
meaning of rules adopted by the various states. Such communications 
will therefore be consistent with state rules wherever state bar 
authorities have adopted a rule containing the ``authorized by law'' 
exception. Furthermore, no conflict will arise between state and 
federal law in those jurisdictions with regard to communications with 
represented persons.
    In those states that do not currently include an ``authorized by 
law'' exception or repeal current provisions, the proposed rule may 
conflict with their provisions governing communications with 
represented parties. The second sentence of this section provides that 
in those cases the proposed regulations will preempt the application of 
conflicting state and local rules as they relate to contacts by 
Department of Justice attorneys. The longstanding position of the 
Department is that the Supremacy Clause bars ``any attempt by a state 
bar association to impose sanctions on a government attorney who is 
acting lawfully and in pursuance of his federal law enforcement 
responsibilities.'' See Ethical Restraints of the ABA Code of 
Professional Responsibility on Federal Criminal Investigations, 4B Op. 
O.L.C. 576, 601-02 (1980). It is clear that a Department regulation 
published after notice and comment constitutes ``federal law.'' See, 
e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) (``It has been 
established in a variety of contexts that properly promulgated, 
substantive agency regulations have the 'force and effect of law'''). 
It is also clear that a properly promulgated Department rule is binding 
upon state authorities and supersedes contrary provisions of state law. 
The Supreme Court has recognized that ``[f]ederal regulations have no 
less pre-emptive effect than federal statutes.'' Fidelity Fed. Sav. & 
Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153 (1982). Accord, e.g., 
City of New York v. FCC, 486 U.S. 57, 63 (1988) (``[t]he phrase `Laws 
of the United States' [in the Supremacy Clause] encompasses both 
federal statutes themselves and federal regulations that are properly 
adopted in accordance with statutory authorization''); Capital Cities 
Cable, Inc. v. Crisp, 467 U.S. 691, 698-700 (1984).
    Accordingly, to the extent the proposed regulations conflict with 
state law, the regulations preempt the conflicting state law.
    This section does, however, provide an important exception. If the 
Attorney General finds that a Department attorney has willfully 
violated these regulations, preemption will not apply. As a result, a 
government attorney who willfully engages in communications that 
violate these rules will be subject to disciplinary proceedings both by 
the Department and by the appropriate state disciplinary authorities.

IV. United States Attorneys' Manual

    In addition to the promulgation of the proposed regulations 
discussed above, the Department proposes to add several new provisions 
to the United States Attorneys' Manual to provide additional guidance 
to Department attorneys when dealing with individuals or entities 
represented by counsel during criminal or civil law enforcement 
investigations and proceedings. Those provisions are set forth in full 
below as part of this commentary.
    The decision to include some restrictions in the Manual while other 
restrictions are contained in the rule was an important one. In the 
process of determining what the appropriate Departmental policy should 
be, it became clear that any regulation would have to apply to a 
variety of circumstances, including: White collar and organized crime 
investigations, complex conspiracy investigations, individuals whose 
counsel are paid by a third party, and individuals fearful of their 
counsel for various reasons. Accordingly, the Department determined 
that the regulations should be broad in scope and should provide 
unambiguous guidance that would not adversely affect federal law 
enforcement efforts. Thus, the regulations distinguish between the 
investigative period before indictment, arrest, or the filing of a 
complaint and the period after arrest or the commencement of formal 
proceedings. They also distinguish between communications that are part 
of a factual investigation and negotiations of plea agreements, 
settlements and similar legal arrangements. At the same time, the 
Manual revisions require that government attorneys consider the 
principles underlying the basic prohibitions in a much wider variety of 
circumstances.
    The Department expects all Department attorneys involved in 
criminal or civil law enforcement proceedings to adhere to these 
provisions. Failure to do so will result in appropriate departmental 
discipline.
    There are two especially important provisions that should be 
addressed.
    First, Sec. 9-13.240 prohibits a government attorney from 
communicating with a person known to be represented by counsel who the 
government attorney knows is a target of a federal criminal or civil 
enforcement investigation. The Manual provides several exceptions to 
this general prohibition, including the following: When the 
communication is initiated by the target; when the communication occurs 
at the time of arrest and the represented person has waived his or her 
Constitutional rights; when the government attorney believes the 
contact is necessary to protect against a risk to human life or safety; 
or when a senior Department official determines that exigent 
circumstances exist, making the communication necessary for effective 
law enforcement. In addition, Sec. 9-13.220 provides an exception to 
the general prohibition if the communication is made in the course of 
an undercover investigation.
    ``Target'' is defined as a ``person as to whom the attorney for the 
government has substantial evidence linking that person to the 
commission of a crime or to other wrongful conduct and as to whom the 
attorney for the government anticipates seeking an indictment or naming 
as a defendant in a civil law enforcement proceeding.'' Because an 
individual who is a target of a federal investigation is typically in a 
clearly adversarial relationship with the federal government, the 
Department believes that the principles underlying DR 7-104 and Rule 
4.2 are implicated and an extension of the prohibition contained in the 
rule is appropriate.
    In its enforcement of this provision, the Department intends to 
give substantial deference to a federal attorney's good faith judgment 
regarding the likelihood that a particular person will ultimately 
become a defendant. Even if the attorney for the government believes 
that an individual will probably be named as a defendant, that 
individual is not considered a target until the government has actually 
obtained substantial evidence linking that individual to the commission 
of a crime or to unlawful conduct. The government attorney's 
uncorroborated belief that an individual will ultimately be named as a 
defendant is not enough. Thus, an individual is not considered a target 
under this rule until both the attorney for the government believes 
that he or she will probably be named as a defendant and substantial 
evidence has been obtained.
    The second provision that should be noted is the approval procedure 
provided in Sec. 9-13.250. Under that provision, before an attorney for 
the government communicates with any represented party or target, the 
government attorney should obtain the approval of the United States 
Attorney if the attorney is an Assistant United States Attorney, or the 
approval of another appropriate supervisor. The provision also permits 
contacts when prior approval is not feasible, and requires post-contact 
documentation.

Additions to the United States Attorneys' Manual

    The entire text of the planned additions to the Manual follows:
    The following new section is added to title 9, chapter 13.
9-13.200  Communications With Represented Persons
9-13.210  Generally
    28 CFR part 77 generally governs communications with represented 
persons in law enforcement investigations and proceedings. This section 
sets forth several additional departmental policies and procedures with 
regard to such communications.
    Department of Justice attorneys should recognize that 
communications with represented persons at any stage may present the 
potential for undue interference with attorney-client relationships and 
should undertake any such communications with great circumspection and 
care. This Department as a matter of policy will respect bona fide 
attorney-client relationships whenever possible, consistent with our 
law enforcement responsibilities and duties.
    The rules set forth in 28 CFR part 77 are intended, among other 
things, to clarify the circumstances under which government attorneys 
may communicate with represented persons. They are not intended to 
create any presumption that communications are necessary or advisable 
in the course of any particular investigation or proceeding. Whether 
such a communication is appropriate in a particular situation is to be 
determined by the government attorney (and, when appropriate, his or 
her supervisors) in the exercise of his or her discretion, based on the 
specific circumstances of the individual case.
    Furthermore, the application of this section, like the application 
of 28 CFR part 77, is limited to communications between Department of 
Justice attorneys and persons known to be represented by counsel during 
criminal investigations and proceedings or civil law enforcement 
investigations and proceedings. These provisions do not apply to 
Department attorneys engaged in civil suits in which the United States 
is not acting under its police or regulatory powers. Thus, state bar 
rules and not these provisions will generally apply in civil suits when 
the government is a defendant or a claimant.
    Attorneys for the government are strongly encouraged to consult 
with appropriate officials in the Department of Justice when the 
application or interpretation of 28 CFR part 77 may be doubtful or 
uncertain. The primary points of contact at the Department of Justice 
on questions regarding 28 CFR part 77 and this section are the 
Assistant Attorneys General of the Criminal and Civil Divisions, or 
their designees.
9-13.220  Communications During Investigative Stage
    Section 77.7 of title 28, Code of Federal Regulations, generally 
permits communications with represented persons outside the presence of 
counsel that are intended to obtain factual information in the course 
of criminal or civil law enforcement investigations before the person 
is a defendant or is arrested in a federal criminal case, or is a 
defendant in a federal civil enforcement proceeding. Such 
communications must, however, have a valid investigative purpose and 
comply with the procedures and considerations set forth below.
    During the investigative stage of a case, an attorney for the 
government may communicate, or cause another to communicate, with any 
represented person, including a ``target'' as defined in section 9-
13.240, concerning the subject matter of the representation if the 
communication is made in the course of an undercover investigation of 
possible criminal or wrongful activity. Undercover communications 
during the investigative stage must be conducted in accordance with 28 
CFR Sec. 77.2(f), and relevant policies and procedures of the 
Department of Justice, as well as the guidelines for undercover 
operations of the federal law enforcement agency conducting the 
investigation (e.g., the Attorney General's Guidelines on FBI 
Undercover Operations).
    Overt communications during the investigative stage are subject to 
the procedures and considerations set forth in sections 9-13.230 - 9-
13.233 and 9-13.240 - 9-13.242, below.
9-13.230  Overt Communications With Represented Persons
    During the investigative stage of a criminal or civil enforcement 
matter, an attorney for the government as a general rule should 
communicate overtly with represented persons outside the presence of 
counsel only after careful consideration of whether the communication 
would be handled more appropriately by others. Attorneys for the 
government may not, however, cause law enforcement agents to make 
communications that the attorney would be prohibited from making 
personally.
    28 CFR 77.8 prohibits an attorney for the government from 
initiating or engaging in negotiations of a plea agreement, immunity 
agreement, settlement, sentence, penalty or other disposition of actual 
or potential civil or criminal charges with a represented person 
without the consent of counsel. Discussion of the terms of a particular 
plea agreement, immunity agreement or other agreement covered by the 
rule is prohibited. However, the attorney for the government is not 
prohibited from responding to questions regarding the general nature of 
such agreements, potential charges, potential penalties or other 
subjects related to such agreements. In such situations, an attorney 
for the government should take care not to go beyond providing 
information on these and similar subjects, and generally should refer 
the represented person to his or her counsel for further discussion of 
these issues, as well as make clear that the attorney for the 
government will not negotiate any agreement with respect to the 
disposition of criminal charges, civil claims or potential charges or 
claims or immunity without the presence or consent of counsel.
9-13.231  Overt Communications With Represented Persons--Presence of 
Witness
    An attorney for the government should not meet with a represented 
person without at least one witness present. To the extent feasible, a 
contemporaneous written memorandum should be made of all communications 
with the represented person.

9-13.232  Overt Communications With Represented Persons--Restrictions
    When an attorney for the government communicates, or causes a law 
enforcement agent or other agent to communicate, with a represented 
person without the consent of counsel, the restrictions set forth in 28 
CFR Secs. 77.8 and 77.9 must be observed.
9-13.233  Overt Communications-- Assurances Not To Contact Client
    During the investigative stage, and absent compelling law 
enforcement reasons, an attorney for the government should not 
deliberately initiate an overt communication with a represented person 
outside the presence of counsel if the attorney for the government has 
provided explicit assurances to counsel for the represented person that 
no such communication will be attempted and no intervening change in 
circumstances justifying such communications has arisen.
9-13.240  Overt Communications With Represented Targets
    Except as provided in section 9-13.241 or as otherwise authorized 
by law, an attorney for the government should not overtly communicate, 
or cause another to communicate overtly, with a represented person who 
the attorney for the government knows is a target of a federal criminal 
or civil enforcement investigation and who the attorney for the 
government knows is represented by an attorney concerning the subject 
matter of the representation without the consent of the lawyer 
representing such person. A ``target'' is a person as to whom the 
attorney for the government has substantial evidence linking that 
person to the commission of a crime or to other wrongful conduct and as 
to whom the attorney for the government anticipates seeking an 
indictment or naming as a defendant in a civil law enforcement 
proceeding. An officer or employee of an organization that is a target 
is not to be considered a target automatically even if such officer's 
or employee's conduct contributed to the commission of the crime or 
wrongful conduct by the target organization; likewise, organizations 
that employ, or employed, an officer or employee who is a target are 
not necessarily targets themselves.
9-13.241 Overt Communications With Represented Targets--Permissible 
Circumstances
    An attorney for the government may communicate overtly, or cause 
another to communicate overtly, with a represented person who is a 
target of a criminal or civil law enforcement investigation concerning 
the subject matter of the representation if one or more of the 
following circumstances exist:

    (a) Determination if Representation Exists. The communication is 
to determine if the target is in fact represented by counsel 
concerning the subject matter of the investigation or proceeding.
    (b) Discovery or Judicial Administrative Process. The 
communication is made pursuant to discovery procedures or judicial 
or administrative process, including but not limited to the service 
of a grand jury or trial subpoena, testimony before a grand jury, 
service of a summons and complaint, notice of deposition, taking of 
a deposition, administrative summons or subpoena or civil 
investigative demand.
    (c) Initiation of Communication by Represented Person. The 
represented person initiates the communication directly with the 
attorney for the government or through an intermediary and, prior to 
the commencement of substantive discussions on the subject matter of 
the representation and after being advised by the attorney for the 
government of the represented person's right to speak through his or 
her attorney and/or to have the attorney present for the 
communication, manifests that his or her waiver of counsel for the 
communication is voluntary, knowing and informed, and, if willing to 
do so, signs a written statement to this effect.
    (d) Waivers at the Time of Arrest. The communication is made at 
the time of the arrest of the represented person, and he or she is 
advised of his or her constitutional rights and voluntarily and 
knowingly waives them.
    (e) Investigation of Additional, Different or Ongoing Crimes or 
Wrongful Conduct. The communication is made in the course of an 
investigation of additional, different or ongoing criminal or 
wrongful conduct that is separate from or committed after the 
criminal or wrongful activity as to which the person is a target.
    (f) Threat to Safety or Life. The attorney for the government 
believes that there may be a threat to the safety or life of any 
person; the purpose of the communication is to obtain or provide 
information to protect against the risk of harm; and the attorney 
for the government believes that the communication is reasonably 
necessary to protect against such risk.
    (g) Effective Performance of Law Enforcement Functions. The 
Attorney General, the Deputy Attorney General, the Associate 
Attorney General, an Assistant Attorney General or a United States 
Attorney: (i) Determines that exceptional circumstances exist such 
that, after giving due regard to the importance as reflected in 28 
CFR part 77 and this section of avoiding any undue interference with 
the attorney-client relationship, the direct communication with a 
represented party is necessary for effective law enforcement; and 
(ii) authorizes the communication. Communications with represented 
parties pursuant to this exception shall be limited in scope 
consistent with the exceptional circumstances of the case and the 
need for effective law enforcement.
9-13.242  Overt Communications With Represented Targets Organizations 
and Employees
    Overt communication with current high-level employees of 
represented organizations should be made in accordance with the 
procedures and considerations set forth in section 9-13.241 above, in 
the following circumstances:

    (a) The current high-level employee is known by the government 
to be participating as a decision maker in the determination of the 
organization's legal position in the proceeding or investigation of 
the subject matter of the communication; and
    (b) the organization is a target.
9-13.250  Communications During Investigative Stage Office Approval 
Procedure
    Before communicating, or causing another to communicate, with a 
target the attorney for the government knows is represented by counsel 
regarding the subject matter of the communication, the attorney for the 
government should write a memorandum describing the facts of the case 
and the nature of the intended communication. The memorandum should be 
sent to and approved by the appropriate supervisor before the 
communication occurs. In United States Attorney's Offices, the 
memorandum should be reviewed and approved by the United States 
Attorney. If the circumstances of the communication are such that prior 
approval is not feasible, the attorney for the government should write 
a memorandum as soon after the communication as practicable and provide 
a copy of the memorandum to the appropriate supervisor. This memo 
should also set forth why it was not feasible to obtain prior approval. 
The provisions of this section do not apply if the communication with 
the represented target is made at the time of arrest pursuant to 
section 9-13.241(d).
9-13.260  Enforcement of the Policies
    Appropriate administrative action may be initiated by Department 
officials against prosecutors who violate the policies regarding 
communication with represented persons.
* * * * *
    The following new section is added to title 4, chapter 8.
4-8.1300  Communications With Represented Persons
    Communications with represented persons in civil law enforcement 
investigations and proceedings are governed generally by the rules set 
forth in 28 CFR part 77 and by USAM 9-13.200 et seq.
* * * * *

V. Certifications

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. This rule was not reviewed by the 
Office of Management and Budget pursuant to Executive Order No. 12866.

List of Subjects in 28 CFR Part 77

    Government employees, Investigations, Law enforcement, Lawyers.

    Accordingly, chapter I of title 28 of the Code of Federal 
Regulations is proposed to be amended by adding a new part 77 to read 
as follows:

PART 77--COMMUNICATIONS WITH REPRESENTED PERSONS

Sec.
77.1  Purpose and authority.
77.2  Definitions.
77.3  Represented party; represented person.
77.4  Constitutional and other limitations.
77.5  General rule for civil and criminal enforcement; represented 
parties.
77.6  Exceptions; represented parties.
77.7  Represented persons; investigations.
77.8  Represented persons and represented parties; plea 
negotiations.
77.9  Represented persons and represented parties; respect for 
attorney-client relationships.
77.10  Organizations and employees.
77.11  Enforcement of rules.
77.12  Relationship to state and local regulation.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515(a), 516, 519, 
533, 547.


Sec. 77.1.  Purpose and authority.

    (a) The Department of Justice is committed to ensuring that its 
attorneys perform their duties in accordance with the highest ethical 
standards. The purpose of this part is to provide a comprehensive, 
clear, and uniform set of rules governing the circumstances under which 
Department of Justice attorneys may communicate or cause others to 
communicate with persons known to be represented by counsel in the 
course of law enforcement investigations and proceedings. This part 
ensures the Department's ability to enforce federal law effectively and 
ethically, consistent with the principles underlying Rule 4.2 of the 
American Bar Association Model Rules of Professional Conduct, while 
eliminating the uncertainty and confusion arising from the variety of 
interpretations given to that rule and analogous rules by state and 
federal courts and by bar association organizations and committees. 
(Copies of the ABA Model Rule are available through Order Fullfillment 
Office, American Bar Association, 750 North Lake Shore Drive, Chicago, 
IL 60611.
    (b) This part is issued under the authority of the Attorney General 
to prescribe regulations for the government of the Department of 
Justice, the conduct of its employees, and the performance of its 
business, pursuant to 5 U.S.C. 301; to direct officers of the 
Department of Justice to secure evidence and conduct litigation, 
pursuant to 28 U.S.C. 516; to direct officers of the Department to 
conduct grand jury proceedings and other civil and criminal legal 
proceedings, pursuant to 28 U.S.C. 515(a); to supervise litigation and 
to direct Department officers in the discharge of their duties, 
pursuant to 28 U.S.C. 519; and otherwise to direct Department officers 
to detect and prosecute crimes, to prosecute offenses against the 
United States, to prosecute civil actions, suits, and proceedings in 
which the United States is concerned, and to perform such other 
functions in an appropriate and ethical manner as may be provided by 
law, pursuant to 28 U.S.C. 509, 510, 533, and 547.


Sec. 77.2  Definitions.

    As used in this part, the following terms shall have the following 
meanings, unless the context indicates otherwise:
    (a) Attorney for the government means the Attorney General; the 
Deputy Attorney General; the Associate Attorney General; the Solicitor 
General; the Assistant Attorneys General for, and any attorney employed 
in, the Antitrust Division, Civil Division, Civil Rights Division, 
Criminal Division, Environment and Natural Resources Division, or Tax 
Division; any United States Attorney; any Assistant United States 
Attorney; any Special Assistant to the Attorney General or Special 
Attorney duly appointed pursuant to 28 U.S.C. 515; any Special 
Assistant United States Attorney duly appointed pursuant to 28 U.S.C. 
543 who is authorized to conduct criminal or civil law enforcement 
investigations or proceedings on behalf of the United States; or any 
other attorney employed by the Department of Justice who is authorized 
to conduct criminal or civil law enforcement proceedings on behalf of 
the United States. The term attorney for the government does not 
include any attorney employed by the Department of Justice as an 
investigator or other law enforcement agent who is not authorized to 
represent the United States in criminal or civil law enforcement 
litigation or to supervise such proceedings.
    (b) Person means any individual or organization.
    (c) Organization means any corporation, partnership, association, 
joint-stock company, union, trust, pension fund, unincorporated 
association, state or local government or political subdivision 
thereof, or non-profit organization.
    (d) Employee means any employee, officer, director, partner, 
member, or trustee.
    (e) Cooperating witness or individual means any person, other than 
a law enforcement agent, who is acting to assist the government in an 
undercover or confidential capacity.
    (f) Undercover investigation means any investigation undertaken in 
good faith to fulfill law enforcement objectives, in which a person 
communicates with a federal, state or local law enforcement agent or a 
cooperating witness or individual whose identity as an official of the 
government or a person acting at the behest thereof is concealed or is 
intended to be concealed.
    (g)(1) Civil law enforcement proceeding means a civil action or 
proceeding before any court or other tribunal brought by the Department 
of Justice under the police or regulatory powers of the United States 
to enforce federal laws, including, but not limited to, civil actions 
or proceedings brought to enforce the laws relating to:
    (i) Antitrust;
    (ii) Banking and financial institution regulation;
    (iii) Bribery, kickbacks, and corruption;
    (iv) Civil rights;
    (v) Consumer protection;
    (vi) Environment and natural resource protection;
    (vii) False claims against the United States;
    (viii) Food, drugs, and cosmetics regulation;
    (ix) Forfeiture of property;
    (x) Fraud;
    (xi) Internal revenue;
    (xii) Occupational safety and health;
    (xiii) Racketeering; or
    (xiv) Money-laundering.
    (2) The term civil law enforcement proceeding shall not include 
proceedings related to the enforcement of an administrative subpoena or 
summons or a civil investigative demand. An action or proceeding shall 
be considered ``brought by the United States'' only if it involves a 
claim asserted by the Department of Justice on behalf of the United 
States, whether the claim is asserted by complaint, counterclaim, 
cross-claim, or otherwise.
    (h) Civil law enforcement investigation means an investigation of 
possible civil violations of, or claims under, federal law that may 
form the basis for a civil law enforcement proceeding.


Sec. 77.3  Represented party; represented person.

    (a) A person shall be considered a ``represented party'' within the 
meaning of this part only if all three of the following circumstances 
exist:
    (1) The person has retained counsel or accepted counsel by 
appointment or otherwise;
    (2) The representation is ongoing and concerns the subject matter 
in question;
    (3) The person has been arrested or charged in a federal criminal 
case or is a defendant in a civil law enforcement proceeding concerning 
the subject matter of the representation.
    (b) A person shall be considered a ``represented person'' within 
the meaning of this part if circumstances set forth in paragraphs a (1) 
and (2) of this section exist, but the circumstance set forth in 
paragraph (a)(3) of this section does not exist.


Sec. 77.4  Constitutional and other limitations.

    Notwithstanding any other provision of this part, any communication 
that is prohibited by the Sixth Amendment right to counsel, by any 
other provision of the United States Constitution, by any federal 
statute, by the Federal Rules of Criminal Procedure (18 U.S.C. App.) or 
by the Federal Rules of Civil Procedure (28 U.S.C. App.) shall be 
likewise prohibited under this part.


Sec. 77.5  General rule for civil and criminal enforcement; represented 
parties.

    Except as provided in this part or as otherwise authorized by law, 
an attorney for the government may not communicate, or cause another to 
communicate, with a represented party who the attorney for the 
government knows is represented by an attorney concerning the subject 
matter of the representation without the consent of the lawyer 
representing such party.


Sec. 77.6  Exceptions; represented parties.

    An attorney for the government may communicate, or cause another to 
communicate, with a represented party without the consent of the lawyer 
representing such party concerning the subject matter of the 
representation if one or more of the following circumstances exist:
    (a) Determination if representation exists. The communication is to 
determine if the person is in fact represented by counsel concerning 
the subject matter of the investigation or proceeding.
    (b) Discovery or judicial or administrative process. The 
communication is made pursuant to discovery procedures or judicial or 
administrative process, including, but not limited to, the service of a 
grand jury or trial subpoena, testimony before a grand jury, service of 
a summons and complaint, notice of deposition, taking of a deposition, 
administrative summons or subpoena or civil investigative demand.
    (c) Initiation of communication by represented party. The 
represented party initiates the communication directly with the 
attorney for the government or through an intermediary and:
    (1) Prior to the commencement of substantive discussions on the 
subject matter of the representation and after being advised by the 
attorney for the government of the client's right to speak through his 
or her attorney and/or to have the client's attorney present for the 
communication, manifests that his or her waiver of counsel for the 
communication is voluntary, knowing and informed and, if willing to do, 
signs a written statement to this effect; and
    (2) A federal district judge, magistrate judge or other court of 
competent jurisdiction has concluded that the represented party has:
    (i) Waived the presence of counsel and that such waiver is 
voluntary, knowing, and informed; or
    (ii) Obtained substitute counsel or has received substitute counsel 
by court appointment, and substitute counsel has consented to the 
communication.
    (d) Waivers at the time of arrest. The communication is made at the 
time of the arrest of the represented party and he or she is advised of 
his or her constitutional rights and voluntarily and knowingly waives 
them.
    (e) Investigation of additional, different or ongoing crimes or 
civil violations. The communication is made in the course of an 
investigation, whether undercover or overt, of additional, different or 
ongoing criminal activity or other unlawful conduct. Such additional, 
different or ongoing criminal activity or other unlawful conduct may 
include, but is not limited to, the following:
    (1) Additional, different or ongoing criminal activity or other 
unlawful conduct that is separate from or committed after the criminal 
activity for which the represented party has been arrested or charged 
or for which the represented party is a defendant in a civil law 
enforcement proceeding; or
    (2) Criminal activity that is intended to impede or evade the 
administration of justice including, but not limited to, the 
administration of justice in the proceeding in which the represented 
party is a defendant, such as obstruction of justice, subornation of 
perjury, jury tampering, murder, assault, or intimidation of witnesses, 
bail jumping, or unlawful flight to avoid prosecution.
    (f) Threat to safety or life. The attorney for the government in 
good faith believes that there may be a threat to the safety or life of 
any person; the purpose of the communication is to obtain or provide 
information to protect against the risk of injury or death; and the 
attorney for the government in good faith believes that the 
communication is necessary to protect against such risk.


Sec. 77.7  Represented persons; investigations.

    Except as otherwise provided in this part, an attorney for the 
government may communicate, or cause another to communicate, with a 
represented person in the process of conducting an investigation, 
including, but not limited to, an undercover investigation.


Sec. 77.8  Represented persons and represented parties; plea 
negotiations.

    An attorney for the government may not initiate or engage in 
negotiations of a plea agreement, settlement, statutory or non-
statutory immunity agreement, or other disposition of actual or 
potential criminal charges or civil enforcement claims, or sentences or 
penalties with a represented person or represented party who the 
attorney for the government knows is represented by an attorney without 
the consent of the attorney representing such person or party; 
provided, however, that this restriction will not apply if the 
communication satisfies Sec. 77.6(c).


Sec. 77.9  Represented persons and represented parties; respect for 
attorney-client relationships.

    When an attorney for the government communicates, or causes a law 
enforcement agent or cooperating witness to communicate, with a 
represented person or represented party pursuant to any provision of 
these regulations without the consent of counsel, the following 
restrictions must be observed:
    (a) Deference to attorney-client relationship. (1) An attorney for 
the government, or anyone acting at his or her direction may not, when 
communicating with a represented person or represented party:
    (i) Inquire about information regarding lawful defense strategy or 
legal arguments of counsel;
    (ii) Disparage counsel for a represented person or represented 
party or otherwise seek to induce the person to forgo representation or 
to disregard the advice of the person's attorney; or
    (iii) Otherwise improperly seek to disrupt the relationship between 
the represented person or represented party and counsel.
    (2) Notwithstanding paragraph (a)(1) of this section, if the 
Attorney General, the Deputy Attorney General, the Associate Attorney 
General, an Assistant Attorney General or a United States Attorney 
finds:
    A substantial likelihood that there exists a significant conflict 
of interest between a represented person or party and his or her 
attorney; and that it is not feasible to obtain a judicial order 
challenging the representation, then an attorney for the government 
with prior written authorization from an official identified above may 
apprise the person of the nature of the perceived conflict of interest, 
unless the exigencies of the situation permit only prior oral 
authorization, in which case such oral authorization shall be 
memorialized in writing as soon thereafter as possible.
    (b) Attorney-client meetings. An attorney for the government may 
not direct or cause an undercover law enforcement agent or cooperating 
witness to attend or participate in lawful attorney-client meetings or 
communications, except when the agent or witness is requested to do so 
by the represented person or party, defense counsel, or another person 
affiliated or associated with the defense, and when reasonably 
necessary to protect the safety of the agent or witness or the 
confidentiality of an undercover operation. If the agent or witness 
attends or participates in such meetings, any information regarding 
lawful defense strategy or trial preparation imparted to the agent or 
witness shall not be communicated to attorneys for the government or to 
law enforcement agents who are directly participating in the ongoing 
investigation or in the prosecution of pending criminal charges, or 
used in any other way to the substantial detriment of the client.


Sec. 77.10  Organizations and employees.

    This section applies when the communication involves a former or 
current employee of an organization that qualifies as a represented 
party or represented person, and the subject matter of the 
communication relates to the business or affairs of the organization.
    (a) Communications with current employees; organizational 
representation. A communication with a current employee of an 
organization that qualifies as a represented party or represented 
person shall be considered to be a communication with the organization 
for purposes of this part only if the employee is a controlling 
individual. A ``controlling individual'' is a current high level 
employee who is known by the government to be participating as a 
decision maker in the determination of the organization's legal 
position in the proceeding or investigation of the subject matter.
    (b) Communications with former employees; organizational 
representation. A communication with a former employee of an 
organization that is represented by counsel shall not be considered to 
be a communication with the organization for purposes of this part.
    (c) Communications with former or current employees; individual 
representation. A communication with a former or current employee of an 
organization who is individually represented by counsel may occur only 
to the extent otherwise permitted by this part. However, a claim by an 
attorney that he or she represents all or a large number of individual 
current and/or former employees of an organization does not suffice to 
establish that those employees are represented persons or represented 
parties under this part. In such circumstances, prior to engaging in 
communications that would be prohibited under this part as a result of 
the individual representation, the attorney for the government shall 
communicate with the individual current or former employee to determine 
if in fact that employee is represented by counsel concerning the 
subject matter of the investigation or proceeding.
    (d) Communications with separately represented controlling 
individuals. When this part would preclude discussions with a 
controlling individual as defined in Sec. 77.10(a) and the controlling 
individual has retained separate counsel on the relevant subject 
matter, an attorney for the government may communicate with such 
individual in the following circumstances:
    (1) If the controlling individual's separate counsel consents;
    (2) If the communication falls within one of the exceptions set 
forth in Secs. 77.6 or 77.9; or
    (3) In the case in which the individual does not qualify as a 
represented party, if the individual initiates the communication and 
states that he or she is communicating exclusively in his or her 
personal capacity and not on behalf of the represented organizational 
party, and manifests that his or her waiver of counsel for the 
communication is voluntary, knowing and informed, and, if willing to do 
so, signs a written statement to this effect.
    (e) Communications with unrepresented controlling individuals. 
Notwithstanding any other provision of this part, an attorney for the 
government may communicate with a controlling individual who is not 
individually represented as to the subject matter of the communication 
when the controlling individual initiates the communication and states 
that he or she is communicating exclusively in his or her personal 
capacity and not on behalf of the represented organizational party, and 
manifests that his or her waiver of counsel for the communication is 
voluntary, knowing, and informed, and, if willing to do so, signs a 
written statement to this effect.
    (f) Multiple representation. Nothing in this section is intended or 
shall be construed to affect the requirements of Rule 44(c) of the 
Federal Rules of Criminal Procedure, or to permit the multiple 
representation of an organization and any of its employees, or the 
multiple representation of more than one such employee, if such 
representation is prohibited by any applicable law or rule of attorney 
ethics.


Sec. 77.11  Enforcement of this part.

    (a) Exclusive enforcement by Attorney General. The Attorney General 
shall have exclusive authority over this part and any violations of it, 
except as provided in Sec. 77.12. Allegations of violations of this 
part shall be investigated exclusively by the Office of Professional 
Responsibility of the Department of Justice, and shall be addressed 
when appropriate as matters of attorney discipline by the Department. 
The findings of the Attorney General or her designee as to an 
attorney's compliance or non-compliance with this part shall be final 
and conclusive except insofar as the attorney for the government is 
afforded a right of review by other provisions of law.
    (b) No private remedies. This part is not intended to and does not 
create substantive rights on behalf of criminal or civil defendants, 
targets or subjects of investigations, witnesses, counsel for 
represented parties or represented persons, or any other person other 
than an attorney for the government, and shall not be a basis for 
dismissing criminal or civil charges or proceedings against represented 
parties or for excluding relevant evidence in any proceeding in any 
court of the United States.


Sec. 77.12  Relationship to state and local regulation.

    Communications with represented parties and represented persons 
pursuant to this part are intended to constitute communications that 
are ``authorized by law'' within the meaning of Rule 4.2 of the 
American Bar Association Model Rules of Professional Conduct, DR 7-
104(A)(1) of the ABA Code of Professional Responsibility, and analogous 
state and local federal court rules. (Copies of the ABA Model Rules and 
Code are available through Order Fulfillment Office, American Bar 
Association, 750 North Lake Shore Drive, Chicago, IL 60611.) In 
addition, this part is intended to preempt the application of state and 
local laws or rules to the extent that they relate to contacts by 
attorneys for the government, and those acting at their direction or 
under their supervision, with represented parties or represented 
persons in criminal and civil investigations and litigation. This part 
is designed to govern the conduct of attorneys for the government in 
the discharge of their duties to the extent that state and local laws 
or rules are inconsistent with this part. When the Attorney General 
finds a willful violation of any of the rules in this part, however, 
sanctions for the violation of this part may be applied, if warranted 
by the appropriate state disciplinary authority.

    Dated: February 22, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-4510 Filed 3-2-94; 8:45 am]
BILLING CODE 4410-01-M