[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19077]


[[Page Unknown]]

[Federal Register: August 4, 1994]


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Part VI





Department of Justice





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28 CFR Part 77




Communications With Represented Persons; Final Rule
DEPARTMENT OF JUSTICE

28 CFR Part 77

[AG Order No. 1903-94]

 
Communications With Represented Persons

AGENCY: Department of Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule governs the circumstances under which 
attorneys employed by the Department of Justice (``Department'') may 
communicate with persons known to be represented by counsel in the 
course of law enforcement investigations and proceedings.
    The purpose of this 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 as local court rules in a number 
of federal district courts.
    The rule establishes, prospectively, a general prohibition, subject 
to limited enumerated exceptions, against contacts with ``represented 
parties'' without the consent of counsel. This prohibition derives from 
the American Bar Association (``ABA'') Code of Professional 
Responsibility and its successor, the ABA Model Rules of Professional 
Conduct. The rule, on the other hand, generally permits investigative 
contacts with ``represented persons'': that is, individuals or 
organizations that are represented by counsel but that 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 does 
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 state bar rules. Those 
provisions will 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.

EFFECTIVE DATE: September 6, 1994.

FOR FURTHER INFORMATION CONTACT:
F. Mark Terison, Senior Attorney, Legal Counsel, Executive Office for 
United States Attorneys, United States Department of Justice, (202) 
514-4024. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Background

    This final rule on the subject of communications with represented 
persons culminates a lengthy rulemaking process in which a proposed 
rule on the same subject was issued three separate times for comment. 
See 59 FR 10086 (Mar. 3, 1994); 58 FR 39976 (July 26, 1993); and 57 FR 
54737 (Nov. 20, 1992). Comments received after the publication in 
November 1992 and in July 1993 of earlier versions of the rule resulted 
in major substantive changes being made to the rule. As a result, a new 
proposal reflecting these changes was published on March 3, 1994. 
During the most recent comment period, the Department received many 
thoughtful comments from private attorneys, local bar organizations, 
state courts, federal prosecutors, and others. The Department closely 
scrutinized all of these comments. After considering those comments, 
the Department made several relatively minor amendments to the proposed 
rule. Therefore, the final rule remains in substantially the same form 
as the proposed rule issued in March 1994.
    The final rule 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 government attorneys can 
rely in carrying out their responsibilities to enforce federal laws. 
(The term ``attorney for the government'' is defined in paragraph 
77.2(a), and where this phrase, or a variant of it, such as 
``government attorney,'' is used elsewhere in this commentary, it has 
the meaning set forth in paragraph 77.2(a), unless the context clearly 
indicates otherwise, and it is typically used interchangeably with 
``Department attorney.''). In essence, this regulation permits federal 
prosecutors and agents to continue to conduct legitimate criminal and 
civil investigations against all individuals, whether or not those 
persons are represented by counsel. It allows government 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 regulation generally does not permit 
federal prosecutors to attempt to negotiate plea agreements, 
settlements, or similar arrangements with individuals represented by 
counsel without the consent of their attorneys. This regulation also 
precludes, with certain narrow exceptions, any contacts with 
represented parties after an arrest, indictment, or the filing of a 
complaint on the subject matter of the representation.
    Additionally, the Department plans to add provisions to the United 
States Attorneys' Manual that will set forth further guidance. The 
Department intends to 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 planned provisions also will generally 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 generally 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 those defendants who waive their right 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 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, 739 (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); United States v. 
Weiss, 599 F.2d 730, 739 (5th Cir. 1979); and United States v. 
Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied, 415 
U.S. 989 (1974). Only the Second Circuit has suggested otherwise. See 
United States v. Hammad, 846 F.2d 854, amended, 858 F.2d 834 (2d Cir. 
1988), cert. denied, 498 U.S. 871 (1990). However, that suggestion was 
muted significantly in a revised opinion by the Second Circuit that 
``urge[d] restraint in applying the rule to criminal investigations,'' 
858 F.2d at 838, and ultimately concluded that ``a prosecutor is 
`authorized by law' to employ legitimate investigative techniques in 
conducting or supervising criminal investigations * * * '' Id. at 839. 
By contrast, state courts and state bar organizations have varied 
widely in their interpretation of the scope of the prohibition on 
contacts embodied in DR 7-104, Model Rule 4.2, and their analogs. Some 
examples of the varying interpretations are detailed below.
    Uncertainty about the scope and applicability of DR 7-104, Model 
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. The 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. Additionally, the heightened 
threat of disciplinary action that accompanies the expansive 
application of these rules has created a chilling effect on prosecutors 
responsible for directing these legitimate investigative activities.
    These problems are 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. Therefore, 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, 
licensed in a different state, might be subject to state discipline for 
the same conduct.
    In light of these circumstances, the Department has concluded that 
a compelling need exists that warrants a uniform federal rule to 
reconcile the traditional rule against contacts with a represented 
party with the obligation of the Department of Justice to enforce the 
law vigorously. Indeed, absent a uniform federal rule, prosecutors have 
been moved 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 promulgation 
of a regulation such as this one. Nearly all the states have adopted 
rules that include an ``authorized by law'' exception. This final rule, 
a duly promulgated regulation, is intended to constitute ``law'' within 
the meaning of those exceptions.
    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). 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, consistent with the Department's law enforcement 
responsibilities. 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, this regulation attempts to reconcile the purposes 
underlying DR 7-104 and Model Rule 4.2 with effective law enforcement. 
Recognizing the importance of the attorney-client relationship and the 
desirability that an individual who is represented by counsel be fully 
advised by counsel before negotiating legal agreements, this regulation 
provides that federal attorneys may not negotiate plea bargains, 
settlement agreements, immunity agreements, or similar arrangements 
without the consent of the individual's attorney. There is a heightened 
risk in this context of the prosecutor's superior legal training and 
specialized knowledge being used to the detriment of the untutored 
layperson. Thus, the regulations comport with the principal purpose of 
DR 7-104 and Model Rule 4.2 by insisting that the individual's attorney 
participate in these types of negotiations. Further, even when contacts 
are allowed, the regulation is designed to minimize any intrusion into 
the attorney-client relationship. At the same time, this regulation 
does permit direct contacts at the preindictment, prearrest 
investigative stage with any individual, whether or not he or she is 
represented by counsel. The regulation is drafted to conform to the 
approach of most federal appellate courts that have considered the 
matter. See, e.g., United States v. Ryans, 903 F.2d 731 (10th Cir.) 
(discussing cases), cert. denied, 498 U.S. 855 (1990), and other cases 
cited previously in connection with the discussion of preindictment 
contacts. The Department believes that public policy and effective law 
enforcement would not be served if the simple act of retaining an 
attorney could serve to exempt a person from lawful, court-approved 
investigative techniques. 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 an indigent would be afforded court-appointed counsel.
    This regulation and the planned changes to the United States 
Attorneys' Manual also will give effect to other important aspects of 
the bar rules against contacts with represented parties. For example, 
the regulation precludes federal attorneys from disparaging an 
individual's counsel or from attempting to gain access to attorney-
client confidences or lawful defense strategy. The guidelines that the 
Department intends to add to the Manual also will make clear that once 
an individual is in a likely adversarial situation with the government 
and has retained an attorney to represent himself or herself with 
respect to the particular subject matter under investigation, the 
government attorney must take greater care before making any ex parte 
contacts. While the regulation authorizes most communications before 
arrest, the planned 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 
planned 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 or 
additional crimes, 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 regulation and planned 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 regulation generally prohibits 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'' once the organization has been 
named as a defendant in a criminal or civil law enforcement proceeding. 
Further, the contemplated Manual provisions would generally prohibit 
contacts without the consent of counsel with controlling individuals of 
organizations that have not yet been named as defendants but are 
targets of federal criminal or civil law enforcement investigations.
    This final rule recognizes that state courts and disciplinary 
bodies generally play the primary role in regulating the conduct of all 
attorneys, including those who work for the federal government. The 
Department also recognizes that with respect to most matters, 
Department attorneys are subject to the bar rules and disciplinary 
proceedings of the states in which they are licensed. However, the 
Department believes it must be the final arbiter of the scope of 
policing with respect to ex parte contacts involving federal 
prosecutors, subject to the Constitution and the laws of the United 
States. As noted above, because of the expanded participation of 
federal prosecutors in preindictment investigations, and the trend of 
state courts increasingly to apply DR 7-104 and Model Rule 4.2 
expansively against federal prosecutors, these rules have affected and 
circumscribed the power of federal officials to carry out their legally 
mandated responsibilities. This regulation provides that the Attorney 
General shall have exclusive authority to determine these rules. 
Further, the Department's rules are intended fully to preempt and 
supersede the application of state and local court rules relating to 
contacts by Department of Justice attorneys when carrying out their 
federal law enforcement functions. Only if the Attorney General finds 
that a Department attorney has willfully violated these new rules would 
that attorney continue to be subject to the full measure of state 
disciplinary jurisdiction.
    The Department is confident that, taken together, this regulation, 
the planned Manual amendments, and this supplemental information will 
promote the public interest in effective law enforcement in a manner 
that also conforms to the highest standards of legal ethics.
    The procedures established by this rule apply to conduct occurring 
after the rule's publication.

II. Rulemaking History

    On November 22, 1992, the Department of Justice published in the 
Federal Register a proposed rule regarding communications with 
represented persons. 57 FR 54737. By December 21, 1992, the close of 
the comment period, the Department had received comments from 20 
sources.
    The Department was concerned that not all interested parties had 
received sufficient opportunity to respond during the initial comment 
period. Noting ``the complex and important nature of the rule to the 
criminal and civil justice systems and the licenses and livelihoods of 
its attorneys,'' on July 26, 1993, the Department reissued the proposed 
rule for an additional 30-day comment period. 58 FR 39976. The 
Department received 219 comments following this second publication of 
the proposed rule.
    On March 3, 1994, the Department issued a new proposed rule 
governing the same subject matter for an additional 30-day comment 
period. 59 FR 10086. In response to concerns raised by bar 
organizations, bar counsel, state and federal judges, and others, that 
proposal reflected substantial changes from the earlier proposals. This 
publication of the proposed rule was accompanied by the issuance of 
companion provisions that the Department intends to include in the 
United States Attorneys' Manual, which set forth certain more 
restrictive policies with regard to overt investigatory communications. 
The discussion that follows summarizes the issues that were raised in 
response to the Department's latest publication of the proposed rule.

III. Summary of Comments Received

    During the most recent comment period, which closed on April 4, 
1994, timely comments were received from 31 sources, including nine 
individuals, nine organizations, four state court judges, one federal 
court judge, five U.S. Attorney's Offices, two Department of Justice 
components, and one other federal agency. Of the 31 comments received, 
nine comments supported promulgation of the proposed rule, 20 comments 
opposed the rule, and two other comments failed to take any definitive 
position on the proposed rule as a whole. As with previous versions of 
this rule, many writing in opposition to the Department's proposal 
argued that it unfairly permits the Department to hold its attorneys to 
ethical rules different from those that apply to all other attorneys. 
Other opponents of the proposed rule--most notably the ABA and a 
special committee of the Conference of State Supreme Court Chief 
Justices--challenged the proposed rule on constitutional and statutory 
grounds, arguing that the Department lacks authority to preempt state 
ethics rules or to supersede local federal district court rules. Those 
writing in support of the proposal generally praised it for bringing 
certainty and clear guidance to an area that previously has been 
unclear and disruptive of law enforcement functions.
    The Department has considered carefully each comment and 
appreciates the thoughtfulness reflected in them. The Department's 
responses to those comments are discussed below, either in the 
``General Comments'' section or in the context of the particular 
section or paragraph to which they pertain as part of the ``Section-by-
Section'' analysis. All revisions adopted in the final rule are 
indicated.

IV. General Comments

    Comments were received on the following three general issues: (1) 
the need for the rule; (2) the constitutional and statutory authority 
for the rule; and (3) the sufficiency of the rule's internal 
enforcement mechanisms. These general comments essentially repeated 
comments received in response to previous versions of the proposed 
rule. After careful reconsideration of these recurring issues, the 
Department's position on many of these subjects--in particular, the 
constitutional and statutory basis for this rule and the need for and 
advisability of such a rule--remains the same. Therefore, the 
Department's response in this section builds upon responses published 
in previous commentaries.
    A. The Need for the Rule. One state court judge, one federal judge, 
five individuals, and six organizations criticized the proposed rule as 
holding government attorneys to lower ethical standards than those that 
apply to all other attorneys. This comment was formulated in a variety 
of ways, with the following as illustrative examples: ``[t]he rules 
apply to everyone, and it should especially apply to attorneys in 
Government service;'' ``I do not know why it is that the department 
somehow thinks [it] can exempt [its] attorneys from the rules of 
conduct that all of the lawyers must abide by;'' ``[Department] lawyers 
should be treated as subject to the same rule of law that applies to 
the conduct of all other lawyers;'' and ``[f]airness simply will not 
tolerate exalting the role of one adversary's advocate above the 
other.''
    In response to these comments, the Department finds it important, 
first, to make clear that this rule is not designed to diminish the 
ethical responsibilities of government attorneys; it is intended to 
clarify those responsibilities. The current situation, in which state 
contact rules purport to govern the substantive conduct of federal law 
enforcement attorneys, has proven unsatisfactory because the standards 
of ethical conduct are uncertain and subject to unpredictable and 
varying interpretations. This uncertainty as to what constitutes 
appropriate conduct by Department attorneys has interfered with the 
responsible exercise of the law enforcement duties of Department 
attorneys. The basic purpose of this regulation is to provide a uniform 
rule of ethics regarding contacts with represented persons that can be 
consistently and predictably applied. By doing so, the regulation will 
allow all Department attorneys involved in a federal law enforcement 
proceeding to understand and abide by applicable standards. There is 
simply no basis for believing that there will be a reduction in 
compliance with ethical standards by federal prosecutors.
    Many commenters opposing the proposed rule dismissed as unnecessary 
the creation of a uniform set of rules for Department attorneys. Some 
commented that the ex parte contact rules currently in place do not 
vary significantly, given that virtually every jurisdiction has adopted 
some version of the ABA's anti-contact rule. Other commenters argued 
that, in any event, state and local ethics rules do not interfere 
substantially with federal law enforcement activities because only in 
rare instances have federal prosecutors actually been investigated by a 
state disciplinary authority.
    Although an anti-contact rule is in effect in nearly all 
jurisdictions, it is not interpreted uniformly. Among other things, 
jurisdictions differ as to whether the anti-contact rule applies in the 
investigatory stage, compare United States v. Ryans, 903 F.2d 731, 739 
(10th Cir.), cert. denied, 498 U.S. 855 (1990) with United States v. 
Hammad, 858 F.2d 834, 839 (2d Cir. 1988), cert. denied, 498 U.S. 871 
(1990); whether the rule applies to prosecutors, compare Matter of Doe, 
801 F. Supp. 478 (D.N.M. 1992) with District of Columbia Rules of 
Professional Conduct Rule 4.2 cmt.  8; whether the rule applies to 
former employees of a represented corporate party, compare Public Serv. 
Elec. & Gas v. Associated Elec. & Gas, 745 F. Supp. 1037, 1042 (D.N.J. 
1990) with Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 
628 (S.D.N.Y. 1990); and whether the rule applies to all corporate 
employees who could make admissions on behalf of the corporation or 
only to employees who belong to a so-called ``control group.'' Compare 
Model Rules of Professional Conduct Rule 4.2 cmt. (1983) with Wright 
by. Wright v. Group Health Hosp., 691 P.2d 564 (Wash. 1984). The lack 
of uniformity in interpreting existing anti-contact rules has created 
concern among government attorneys of inadvertently running afoul of 
state court or federal district court rules. The threat of disciplinary 
proceedings (and the possible resulting loss of license and livelihood) 
against a government attorney engaged in legitimate law enforcement 
activities has had a chilling effect on the responsible exercise of law 
enforcement duties. Many federal prosecutors who submitted comments in 
connection with the earlier versions of this rule stated that they feel 
compelled to refrain from authorizing or participating in legitimate 
and ethical law enforcement activities because of the current 
uncertainty as to the acceptability of various ex parte contacts.
    To add to the confusion inherent in the current situation, the 
Department's attorney staff consists of members of many different state 
bars who commonly appear in multiple jurisdictions. Under the Model 
Rule's approach, an attorney practicing in a jurisdiction in which he 
or she is not a member of the bar remains subject to the jurisdiction 
of the bar of which he or she is a member, but if the rules in the two 
places differ, principles of conflict of laws may apply. Model Rules of 
Professional Conduct Rule 8.5 and cmt. (1983). As a result, when state 
anti-contact rules purport to govern the conduct of federal attorneys, 
the question of which rule governs the conduct of Department lawyers 
may often be complicated. Indeed, as was noted in the ``Background'' 
section of this commentary, government attorneys may be subject to 
substantially different rules when they are working alongside one 
another on the same case. One commenter proposed that instead of 
issuing a uniform contacts rule for Department attorneys, the 
Department should encourage its attorneys to practice only in a given 
jurisdiction and to obtain bar membership in that jurisdiction. 
However, Congress has made clear that Department attorneys should be 
able to practice in different jurisdictions so long as they are a 
member of some state bar, and there is a significant federal interest 
in preserving the Department's ability to assign its attorneys wherever 
there are law enforcement needs to be met. This uniform rule regarding 
contacts with represented persons achieves consistency and high ethical 
standards without hampering federal law enforcement activity.
    In formulating this uniform rule, the Department has not 
disregarded existing state ethics rules, as a number of comments imply. 
As set forth in section 77.12, this regulation is specifically intended 
to fit within the structure of DR 7-104 and Model Rule 4.2, as well as 
analogous state and local district court disciplinary rules. Both DR 7-
104 and Model Rule 4.2 provide that communications that are 
``authorized by law'' are exempted from the general prohibition of the 
rule and, according to the Reporter for the commission that developed 
the Model Rules, Yale Law School ethics professor Geoffrey Hazard, this 
exception was drafted with the ``government lawyer'' problem in mind. 
See Letter of January 19, 1994 from Professor Geoffrey C. Hazard, Jr. 
to Chief Justice E. Norman Veasey, at 2 (``I can state from first-hand 
knowledge that this [authorized by law] qualification was drafted 
mindful of the government lawyer problem, among others. In my opinion 
it is within the authority of the federal government, particularly the 
Justice Department, to promulgate such regulations.'') (This letter and 
all comments are on file with the Office of the Associate Attorney 
General, United States Department of Justice). As explained later in 
this commentary, the Department's position is that communications with 
represented persons undertaken pursuant to this duly promulgated 
regulation clearly constitute communications ``authorized by law.'' 
Therefore, in nearly all jurisdictions, communications approved under 
the Department's rules will be appropriate under existing ethical rules 
as well.
    Furthermore, the content of this rule derives largely from DR 7-104 
and Model Rule 4.2 and is wholly consistent with the principles 
underlying these rules. This regulation grants greater latitude for 
lawyer communications with a represented ``person'' during the 
investigative phase of law enforcement than with a represented 
``party'' after adversarial proceedings have commenced. This 
distinction appears in the texts of DR 7-104 and Model Rule 4.2, which 
prohibit only communications with ``a party'' the lawyer knows to be 
represented by another lawyer in the matter. This distinction also 
accords with the great weight of federal court interpretations of the 
state ethics rules. See Ryans, 903 F.2d at 739 (``We are not convinced 
that the language of [the anti-contact rule] 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''); United States v. Sutton, 
801 F.2d 1346, 1365-66 (D.C. Cir. 1986) (anti-contact rule ``was never 
meant to apply to [pre-indictment, non-custodial] situations such as 
this one''); 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. Fitterer, 710 F.2d 1328, 1333 (8th 
Cir.) (anti-contact rule does not prohibit prosecutors from using 
undercover informants to communicate with represented persons prior to 
indictment), cert. denied, 464 U.S. 852 (1983); United States v. Jamil, 
707 F.2d 638 (2d Cir. 1983) (prosecutor's use of undercover informant 
in pre-indictment, non-custodial setting to communicate with 
represented person does not violate DR 7-104); United States v. 
Vasquez, 675 F.2d 16, 17 (2d Cir. 1982) (anti-contact rule was not 
intended to prohibit use of undercover informants prior to indictment); 
United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.) (``the 
government's use of such investigative techniques at this stage of a 
criminal matter does not implicate the sorts of ethical problems 
addressed by the Code''), cert. denied, 452 U.S. 920 (1981); United 
States v. Weiss, 599 F.2d 730, 739-40 (5th Cir. 1979) (prosecutor's 
investigatory communications upheld against challenge under anti-
contact rule); United States v. Lemonakis, 485 F.2d 941, 953-56 (D.C. 
Cir. 1973) (anti-contact rule does not apply prior to indictment, and 
use of undercover informant did not violate rule in any event), 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) (Minnesota's 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. 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. Western Electric 
Co., 1990-2 Trade Cases (CCH) 69,148, at 64,314 & n.6 (D.D.C. 1990); 
United States v. Buda, 718 F. Supp. 1094, 1096 (W.D.N.Y. 1989); United 
States v. Chestman, 704 F. Supp. 451, 454 (S.D.N.Y. 1989), rev'd on 
other grounds, 903 F.2d 75 (2d Cir. 1990), aff'd in part, 947 F.2d 551 
(2d Cir. 1991) (en banc); United States v. Galanis, 685 F. Supp. 901, 
903-04 (S.D.N.Y. 1988); United States v. Guerrerio, 675 F. Supp. 1430, 
1438 (S.D.N.Y. 1987). But see United States v. Hammad, 858 F.2d 834, 
839 (2d Cir. 1988) (pre-indictment communications may be improper if 
accompanied by ``misconduct'' on the part of the government), cert. 
denied, 498 U.S. 871 (1990); 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); see also Comment to ABA Model 
Rule 4.2 (notwithstanding use of the term ``party,'' the rule does not 
require that a person be ``a party to a formal legal proceeding'').
    The courts have readily recognized that Department attorneys 
engaged in criminal and civil law enforcement matters perform 
distinctly different functions from attorneys engaged in the private 
practice of law. The courts have further recognized that the rules 
governing communications with represented persons should take account 
of these differences. To disregard these differences would therefore 
impose substantial and deleterious restrictions on the legitimate law 
enforcement duties of Department attorneys that do not presently exist.
    For much the same reasons, the Department believes that there is a 
basis for distinguishing for purposes of this regulation between 
Department attorneys engaged in law enforcement activities (who are 
covered by this regulation) and Department attorneys engaged in civil 
suits in which the United States is not acting under its police or 
regulatory powers (who are not covered). One commenter proposed 
extending these rules to cover also the latter activities of Department 
attorneys; however, because government attorneys engaged in other, 
ordinary civil litigation are not engaged in distinctly different 
functions from private attorneys involved in civil cases, they are not 
brought under this regulation.
    Two organizations further criticized the Department for holding 
government attorneys to ethical standards no higher than what the 
Constitution provides. The Department agrees that the constitutional 
baseline does not provide the proper measure of government attorneys' 
ethical obligations. But this regulation does not purport to equate the 
two standards. On the contrary, the Department's final rule imposes a 
range of restrictions that go beyond those that are constitutionally 
compelled. For example, the regulation prohibits government attorneys 
generally from engaging in negotiations of certain specified legal 
agreements with any represented individual without the consent of that 
individual's counsel, even if that individual is not in custody and not 
formally charged. Such communications are not constitutionally 
proscribed. See Brewer v. Williams, 430 U.S. 387, 398 (1979); Miranda 
v. Arizona, 384 U.S. 436 (1966). Additionally, the Department plans to 
issue United States Attorneys' Manual provisions that will place 
significant limits on the ability of government attorneys to engage in 
noncustodial communications with a represented ``target'' of a federal 
criminal or civil law enforcement investigation, even though narrowing 
an investigation to focus on a particular suspect does not trigger the 
suspect's right to counsel. See Hoffa v. United States, 385 U.S. 293 
(1966). Therefore, in constructing these standards to guide the ethical 
conduct of its attorneys, the Department has imposed ethical 
restrictions on Department attorneys that extend significantly beyond 
what the Constitution requires.
    B. The Constitutional and Statutory Authority for the Rule. 1. The 
Department's Authority To Promulgate the Rule. A number of commenters 
argued that the Attorney General lacks delegated authority to 
promulgate this regulation. Comments stressed that ``[n]o act of 
Congress purports to authorize the Department to adopt regulations to 
override state ethics rules governing lawyers,'' and that the proposed 
regulation in fact is ``contrary to . . . the explicit mandate of 
Congress'' that every Department attorney must get a license from a 
State and maintain that license.
    Rules governing the conduct of Department attorneys, or any other 
officials of the Executive Branch, may be promulgated only pursuant to 
constitutional or statutory authority. Congress's delegation of 
authority need not be specific or explicit. Chrysler Corp. v. Brown, 
441 U.S. 281, 307-08 (1979). The Department believes that it possesses 
appropriate statutory authority to promulgate this regulation pursuant 
to two distinct sources: 5 U.S.C. 301 (``commonly referred to as the 
`housekeeping statute,''' Chrysler Corp., 441 U.S. at 309 (citation 
omitted)), and title 28 of the United States Code, which in a variety 
of provisions authorizes the Attorney General and the Department to 
enforce federal law and to regulate the conduct of Department 
attorneys.
    Section 301 of title 5, United States Code, authorizes the Attorney 
General to ``prescribe regulations for the government of [her] 
department,'' ``the conduct of its employees,'' and ``the distribution 
and performance of its business.'' 5 U.S.C. 301. The Supreme Court has 
held that this provision authorizes the Attorney General to issue 
regulations with extra-departmental effect. See, e.g., Georgia v. 
United States, 411 U.S. 526, 536 (1973) (holding that section 301 
provided the Attorney General with ``ample legislative authority'' to 
issue regulations that established procedural and substantive standards 
binding on state and local governments); United States ex rel. Touhy v. 
Ragen, 340 U.S. 462 (1951) (federal government attorney could not be 
held in contempt for following an Attorney General regulation 
promulgated pursuant to a predecessor to section 301).
    Title 28 of the United States Code grants the Attorney General and 
the Department a variety of law enforcement powers including the power 
(through intermediary officials) to conduct grand jury proceedings or 
any other kind of civil or criminal legal proceeding; to conduct 
litigation, and to ``secur[e] evidence'' therefor; to detect and 
prosecute crimes; and to prosecute ``civil actions, suits, and 
proceedings in which the United States is concerned.'' 28 U.S.C. 
515(a), 516, 533, 547; see 28 U.S.C. 509, 510. The Attorney General is 
also authorized 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. These provisions grant the Attorney General extremely 
broad authority to supervise the enforcement of federal law.
    In order for a Department regulation to have the force and effect 
of law, it must rest on a reasonable construction of the statutes 
delegating the authority to promulgate it and must not in substance 
contradict any act of Congress. See, e.g., NLRB v. United Food and 
Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987); Capital 
Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-700 (1989). These rules 
represent the reasoned judgment of the Attorney General and of the 
Department about the lawful authority of federal lawyers effectively to 
investigate and prosecute crimes.
    One individual and a number of organizations, including the 
Conference of Chief Justices, posited that the Department is acting 
outside the scope of its congressionally delegated authority because 
this regulation assertedly contravenes the Department of Justice 
Appropriation Authorization Act of 1979, which requires all Department 
attorneys to be ``duly licensed and authorized to practice as an 
attorney under the laws of a State, territory, or the District of 
Columbia.'' Pub. Law No. 96-132, Sec. 3(a), 93 Stat. 1040, 1044 (Nov. 
30, 1979), as carried forward by Pub. Law No. 103-121, 107 Stat. 1153, 
1163 (Oct. 27, 1993) (reenacting provisions of Pub. Law No. 96-132). 
These commenters suggested that when Congress required Department 
attorneys to be licensed by a state bar, Congress implied that 
Department attorneys should be subject to all the rules and regulations 
of state authorities, regardless of their impact on officials carrying 
out federal law enforcement. Therefore, this regulation, by shielding 
Department attorneys from state disciplinary proceedings for violations 
of state rules interfering with effective federal law enforcement, is 
alleged to violate Congress's clear intent in enacting the Department's 
appropriation statute.
    The Department believes that these comments mistake the purpose and 
effect of the congressional requirement that federal attorneys have 
state licenses. That requirement, which is satisfied by admission to 
the state's bar and maintenance of bar membership, simply serves to 
ensure that the professional qualifications of all Department lawyers 
have in fact been examined. No comment received by the Department 
demonstrates that Congress intended the requirement to have the further 
effect of interfering with the Attorney General's ability to ensure 
effective federal law enforcement or of compelling federal attorneys to 
comply with state bar ethical standards that contradict federal rules.
    2. The Department's Power to Preempt State Ethics Rules. One 
individual, one state court judge, and five organizations, including 
the Special Committee of the Conference of Chief Justices, commented 
that the Department does not have the constitutional power to preempt 
state regulation of its attorneys.
    It should first be noted that in most instances the force and 
effect of these rules should not depend on whether they preempt state 
ethics rules under the Supremacy Clause. As already noted, 
communications within the scope of the regulation are intended to 
constitute communications that are ``authorized by law'' within the 
meaning of DR 7-104, Model Rule 4.2, and analogous disciplinary rules. 
Therefore, if the relevant state rule contains an authorized-by-law 
exception, this regulation should be seen as constituting such 
authorization, thereby bringing any attorney communication permissible 
under these rules in conformity with that state law and eliminating the 
Supremacy Clause issue.
    The Committee of Chief Justices commented that it is the exclusive 
province of the state supreme courts to construe state disciplinary 
rules and to determine whether this regulation falls within the 
``authorized by law'' exception to these rules. The Department has 
simply expressed its intention to fit communications made pursuant to 
these rules within the ``authorized by law'' exception to state and 
local federal court rules, and its belief that this regulation indeed 
constitutes legal authorization for such communications. The Department 
notes that it would seem to require a very strained reading to conclude 
that a regulation duly promulgated after notice and comment and within 
the scope of its delegated authority does not also constitute ``law.'' 
Cf. Chrysler Corp., 441 U.S. at 295-96 (1979) (``It has been 
established in a variety of contexts that properly promulgated 
substantive agency regulations have the `force and effect of law.'. . . 
It would therefore take a clear showing of contrary legislative intent 
before the phrase `authorized by law' in [18 U.S.C.] Sec. 1905 could be 
held to have a narrower ambit than the traditional understanding.'' 
(citation omitted)).
    However, the Department recognizes that situations may arise in 
which the power of this regulation to displace state rules will depend 
on its preemptive force under the Supremacy Clause. Such situations may 
arise in several forms: where the applicable ethics rule has no 
``authorized by law'' exception; where this regulation is deemed not to 
constitute ``law'' for purposes of such exception; or where a 
communication is held to violate the applicable ethics rule and not be 
``authorized'' by this regulation. Therefore, an important feature of 
this regulation is its express intention to preempt and supersede the 
operation of state and local federal court rules as they relate to 
contacts by Department attorneys, regardless of whether such rules are 
inconsistent or consistent with this regulation, absent a finding of a 
willful violation of these rules by the Attorney General.
    The preemption of state regulation of contacts with represented 
persons, except when the Attorney General has found a willful violation 
of the federal regulation, was an integral feature of this rule as 
proposed earlier. The proposed rule reflected the Department's belief 
that preemption of state and local rules, which have been unevenly 
applied, is necessary to ensure that government attorneys' conduct 
respecting ex parte contacts is subject to uniform and predictable 
standards. The Department has made minor revisions to section 77.12 to 
clarify that the Department's intent is to displace even purportedly 
consistent state regulation in this area (or, as it is commonly 
phrased, to ``occupy the field'' of reviewing ex parte contacts by 
Department attorneys). The rules and this commentary now state in more 
express terms the Department's intention to preclude any state 
regulation of government attorneys respecting the subject matter of 
these rules, unless the Attorney General first finds a willful 
violation of these rules.
    Several comments suggested that the Attorney General lacks the 
authority to preempt state disciplinary rules, absent an explicit 
Congressional authorization to do so. These comments misconceive the 
power of a federal agency or department to preempt state regulation. 
Congress may, of course, expressly preempt all state regulation in a 
particular field, see Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 
247, 255 (1947); accord Jones v. Rath Packing Co., 430 U.S. 519, 536-37 
(1977), and, in proper circumstances, a federal agency similarly ``may 
determine that its authority is exclusive and preempts any state 
efforts to regulate in the forbidden area.'' City of New York v. FCC, 
486 U.S. 57, 64 (1988). See generally Fidelity Federal Sav. & Loan 
Ass'n v. De La Cuesta, 458 U.S. 141, 153-54 (1982) (``[f]ederal 
regulations have no less pre-emptive effect than federal statutes'' 
under the Supremacy Clause); Hillsborough County, Fla. v. Automated 
Med. Labs, 471 U.S. 707, 713 (1985) (``We have held repeatedly that 
state laws can be pre-empted by federal regulations as well as by 
federal statutes.''). A federal agency may preempt state regulation 
whenever the agency, in doing so, is acting within the proper scope of 
its congressionally delegated authority. Louisiana Public Serv. Comm'n 
v. FCC, 476 U.S. 355, 368-69 (1986). Accord City of New York, 486 U.S. 
at 64 (``if the agency's choice to pre-empt `represents a reasonable 
accommodation of conflicting policies that were committed to the 
agency's care by the statute, we should not disturb it unless it 
appears from the statute or its legislative history that the 
accommodation is not one that Congress would have sanctioned''' 
(citation omitted)). Thus, contrary to the commenters' suggestion, 
``[a] preemptive regulation's force does not depend on express 
congressional authorization to displace state
law . . . .'' Fidelity Federal Sav. & Loan Ass'n, 458 U.S. at 154.
    In promulgating this regulation, the Department is acting within 
the scope of its discretionary authority. The ample consideration given 
to this regulation and its earlier versions reflects the Department's 
effort reasonably to accommodate the relevant policies concerning law 
enforcement and professional conduct, and, as discussed in the previous 
section, there is no basis for concluding that the Department has 
exceeded its statutory authority. Moreover, the purpose of these rules, 
as defined in section 77.1, is to ``ensure the Department's ability to 
enforce federal law effectively and ethically'' and so fulfill the 
Department's statutory responsibilities. See Capital Cities Cable, Inc. 
v. Crisp, 467 U.S. 691, 700 (1984) (authority to regulate extends to 
all regulatory actions necessary to ensure the achievement of statutory 
responsibilities).
    The ``presumption against finding preemption of state law in areas 
traditionally regulated by the States,'' California v. ARC America 
Corp., 490 U.S. 93, 101 (1989), and the traditional state regulation of 
legal practice and lawyers' ethics, Leis v. Flynt, 439 U.S. 438, 442 
(1979), does not foreclose the Attorney General from concluding that it 
is appropriate here to displace those state rules that regulate the 
conduct of federal officials in the performance of their law 
enforcement duties. Here, the presumption against preemption is 
overcome by this regulation's express preemption provision, which is 
fully effective even in matters traditionally occupied by the states.
    Furthermore, under the intergovernmental immunity doctrine, states 
may not directly regulate or punish federal officials for acts 
undertaken in their official capacities, or otherwise substantially 
interfere with the lawful functions of federal officials. See, e.g., 
Hancock v. Train, 426 U.S. 167, 178-79 (1976); M'Culloch v. Maryland, 
17 U.S. (4 Wheat) 316, 437 (1819); Ethical Restraints of the ABA Code 
of Professional Responsibility on Federal Criminal Investigations, 4B 
Op. O.L.C. 576, 601-02 (1980). ``An officer of the United States 
cannot, in the discharge of his duty, be governed and controlled by 
state laws, any further than such laws have been adopted and sanctioned 
by the legislative authority of the United States.'' Bank of the United 
States v. Halstead, 23 U.S. (10 Wheat.) 51, 63 (1825). Contacts covered 
by this regulation fall within the scope of federal attorneys' duties 
to carry out the law enforcement activities of the United States. The 
application to those attorneys of state ethics laws prohibiting such 
conduct therefore would constitute interference with the activities of 
the federal government forbidden by the intergovernmental immunity 
doctrine.
    For the foregoing and other reasons, the Department believes that 
this regulation effectively preempts state ethical rules regarding 
contacts with represented persons.
    3. The Department's Authority to Supersede Federal District Court 
Rules. Most federal district courts have adopted as local federal 
district court rules one of the two sets of ABA rules or a similar 
anti-contact rule of the state in which the district court sits. See 
Rand v. Monsanto Co., 926 F.2d 596, 601-603 (7th Cir. 1991). Such 
adoption gives the state rules the force of federal law. See United 
States v. Hvass, 355 U.S. 570, 575 (1958). One individual and two 
organizations commented that this regulation, if promulgated, would 
abrogate the primary authority of federal courts to regulate the 
conduct of attorneys arising out of federal law enforcement 
proceedings.
    The Department views this concern as significant but essentially 
theoretical, because the regulation has been crafted so that it will 
not operate in a way that puts it into conflict with local district 
court rules. However, in response to these comments, it should be noted 
that through this regulation the Department does intend not only to 
preempt the application by state courts of state rules relating to 
contacts by attorneys for the government, but also to supersede the 
application by federal courts of the local federal district court rules 
relating to contacts by government attorneys in civil and criminal law 
enforcement investigations and proceedings. See Sec. 77.12 and 
accompanying commentary.
    There are two reasons why the promulgation and operation of this 
regulation is unlikely to present the issue of abrogation of federal 
court authority identified by these commenters. The first is that the 
regulation adopts the line of analysis adopted by the great weight of 
authority interpreting local district court rules governing contacts 
with represented persons. See United States v. Ryans, 903 F.2d 731, 739 
(10th Cir.) (discussing cases), cert. denied, 498 U.S. 855 (1990). The 
Department has not sought in this regulation to validate conduct that 
would otherwise be invalid under most local district court rules.
    In addition, nearly all district courts that have adopted local 
rules governing contacts with represented persons have incorporated the 
``authorized by law'' exception in the Model Rules or in the 
corresponding state rule. See generally Rand, 926 F.2d at 601-603. As 
explained above, this regulation constitutes ``law'' within the meaning 
of any such exception. Thus, the conduct this regulation authorizes is 
for that reason equally authorized by these local district court rules.
    Thus, this regulation in practice should not present any tension 
between the federal executive and judicial powers. In response to the 
commenters' suggestion that any tension would have to be resolved in 
favor of the judicial power, however, the Department disagrees. Were 
the issue to arise, it would be properly considered, as an initial 
matter, as a question of the proper exercise of delegated legislative 
authority. Congress, not the courts, has the primary power to prescribe 
rules for the federal courts. See Palermo v. United States, 360 U.S. 
343, 353 n. 11 (1959); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 
(1941). See generally Hanna v. Plumer, 380 U.S. 460, 472-73 (1965). In 
the case of this regulation, Congress has delegated that authority by 
statute to the Attorney General. This regulation therefore has no less 
legal force than, for example, the Federal Rules, which derive their 
ultimate authority from legislation. See 28 U.S.C. Secs. 2071 et seq. 
Local district court rules, even those dealing with attorney 
discipline, may not displace legislatively-authorized national rules of 
procedure. Rand, 926 F.2d at 600 (Rules of Civil Procedure). Accord, 
Baylson v. Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 107 
(3d Cir. 1992) (Rules of Criminal Procedure). A local rule inconsistent 
with a regulation lawfully issued under statutory authority is, as a 
matter of law, inconsistent with the underlying statute, and must yield 
to Congress's paramount authority as delegated to the department or 
agency issuing the regulation. Thus, the conclusion that the Attorney 
General has the statutory authority to promulgate the proposed 
regulation entails the further conclusion that the regulation displaces 
inconsistent local federal court rules.
    Furthermore, the regulation has been carefully drawn in such a way 
so that once a person has been brought before a court, in general no 
substantive communication can occur without the consent of counsel 
unless: the court finds a knowing, intelligent, and voluntary waiver; 
the communication is made pursuant to court-approved discovery 
procedures; or the communication concerns a criminal or civil offense 
different from the offense before the court. The regulation thus 
accords substantial and appropriate deference to the court's 
supervisory authority over the parties and proceedings before it. 
Moreover, this regulation does not purport to disturb the authority of 
federal courts to fashion appropriate remedies when an ex parte contact 
violates the Constitution. See Sec. 77.11(b) and accompanying 
commentary. Therefore, federal courts will retain significant powers 
under the Constitution to respond to or sanction improper ex parte 
contacts by government attorneys with represented parties.
    The balance of the regulation regulates contacts with persons who 
are not before the court, and as to whom the supervisory authority of a 
federal court is, at best, attenuated. See, e.g., United States v. 
Payner, 447 U.S. 727, 735 n. 7 (1980) (``The supervisory power merely 
permits federal courts to supervise the administration of criminal 
justice among the parties before the bar.''); United States v. 
Williams, 112 S. Ct. 1735, 1742 (1992) (federal court has no 
``supervisory'' judicial authority to prescribe standards of 
prosecutorial conduct before the grand jury in the first instance). It 
would raise significant separation of powers concerns for a district 
court to assert supervisory authority to regulate and sanction the 
conduct of executive branch attorneys when the Attorney General has 
adjudged such conduct legitimate and necessary for law enforcement 
purposes, when that judgment has been embodied in a duly promulgated 
regulation, and when the conduct concerns persons who have not yet come 
before the court.
    C. Sufficiency of Internal Enforcement Mechanisms. Four 
organizations and two individuals commented that these rules, as 
proposed, lacked enforcement mechanisms sufficient to deter prohibited 
communications. These comments took two forms: (1) a general suggestion 
that the Department could not be trusted to police itself (or as, one 
commenter put it, it would be a case of ``the fox maintain[ing] . . . 
guard over the hen-house''); and (2) a specific concern that the 
restrictions to be placed in the United States Attorneys' Manual would 
not in fact be enforced against Department attorneys who violated them.
    The Attorney General has exclusive authority over any violations of 
these rules. As a general matter, violations of these rules will be 
addressed as matters of attorney discipline by the Department, rather 
than by any external disciplinary authority. Only if the Attorney 
General finds a willful violation of these rules may sanctions for the 
violations be imposed by a state disciplinary authority. This 
disciplinary structure reflects the Department's belief that allowing 
sanctions to be issued independent of the Department's internal review 
process would frustrate the Department's efforts to eliminate the 
current uncertainty arising from the differing interpretations of the 
various anti-contact rules by federal courts, state courts, and state 
disciplinary authorities. The Department intends fully to enforce these 
rules and to issue appropriate and strong sanctions for any violation 
of these rules.
    The Department also disagrees with those comments that suggest that 
the provisions the Department currently intends to add to the United 
States Attorneys' Manual will not be enforced. The Manual contains a 
great number of significant Department of Justice policies, many of 
which impose substantial restrictions on Department attorneys. There is 
no evidence that such policies are routinely overlooked by Department 
attorneys or that violations of policies set forth in the Manual are 
not regarded by the Department as serious breaches of professional 
duties. On the contrary, the failure to follow such policies is taken 
very seriously. The Department expects its attorneys involved in 
criminal or civil law enforcement to follow all provisions in the 
Manual amendments that it intends to issue regarding ex parte contacts. 
Failure to follow such rules will result in appropriate discipline by 
the Department.

V. Section-by-Section Analysis

Section 77.1: Purpose and Authority

    Comments relating to this section are addressed in the ``General 
Comments'' section above. No changes have been made to this section.

Section 77.2: Definitions

    The following terms are defined in section 77.2 of this part. In 
the final rule, unlike in the proposed rule, these terms are arranged 
alphabetically for the reader's ease.
    a. ``Attorney for the government.'' The term ``attorney for the 
government'' includes virtually all Department of Justice attorneys 
with investigative, litigative, or management responsibilities, 
regardless of title. It does not, however, include 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 rule specifically exempts 
attorney-agents from its scope if they are employed by the government 
as investigative agents and not as attorneys.
    The term also does not include attorneys for departments or 
agencies outside the Department of Justice, regardless of their 
litigative authority, except to the extent such persons have been 
specially appointed pursuant to 28 U.S.C. 515 or 543.
    Two Department of Justice components commented that the definition 
of ``attorney for the government,'' which explicitly covers attorneys 
employed in the six main divisions of the Department, should be amended 
to cover all attorneys working in the legal offices of the various 
Department agencies, such as the Drug Enforcement Administration and 
the Federal Bureau of Investigation. The Department agrees that the 
definition of ``attorney for the government'' should not distinguish 
between attorneys employed in the Department's divisions and attorneys 
employed in the Department's agencies, given that both sets of 
attorneys exercise similar functions and responsibilities with respect 
to criminal investigations and prosecutions. Accordingly, the 
definition of ``attorney for the government'' has been modified to 
include explicitly ``the Chief Counsel of the DEA and any attorney 
employed in that office, the General Counsel of the FBI and any 
attorney employed in that office or in the Legal Counsel Division of 
the FBI, and, in addition, any attorney employed in, or head of, any 
other legal office in a Department of Justice agency.''
    b. ``Civil Law Enforcement Investigation.'' This term includes any 
investigation of potential civil violations of, or claims under, 
federal law that may form the basis of a civil law enforcement 
proceeding, as defined in paragraph 77.2(c).
    c. ``Civil Law Enforcement Proceeding.'' The term ``civil law 
enforcement proceeding'' encompasses a variety of activities beyond the 
particular areas identified in the definition, which are intended only 
to be illustrative.
    The exclusion of proceedings related to the enforcement of an 
administrative subpoena or summons or a civil investigative demand 
(CID) is intended to ensure that the filing of such a proceeding does 
not trigger the limitations of section 77.5, which generally prohibits 
ex parte communications once adversary proceedings have commenced 
against a represented ``party.'' Thus, the filing by the United States 
of a proceeding to enforce a subpoena, summons, or CID will not 
prohibit further investigatory communications regarding the underlying 
substantive violations.
    The final sentence of paragraph 77.2(c)(2) ensures that the United 
States need not be the plaintiff in order for a civil action to be 
``brought by the United States,'' but may be a counterclaimant or 
cross-claimant if the counterclaim or cross-claim otherwise fits within 
the description of civil law enforcement.
    d. ``Cooperating witness or individual.'' A ``cooperating witness 
or individual'' is defined to include informants, witnesses, and other 
persons who are not law enforcement agents, but only to the extent that 
such a person is acting ``to assist the government in an undercover or 
confidential capacity.''
    e. ``Employee.'' The term ``employee'' is not limited to its 
literal meaning, but also includes officers, directors, partners, 
members, and trustees. See Sec. 77.10 (communications involving 
organizations). An independent contractor would not be considered an 
``employee'' for purposes of these rules.
    f. ``Organization.'' The term ``organization'' includes any 
corporation, partnership, association, joint-stock company, union, 
trust, pension fund, unincorporated organization, state or local 
government or political subdivision thereof, or non-profit 
organization. It does not, of course, include groups of individuals 
``associated in fact'' within the meaning of the racketeering statutes. 
See 18 U.S.C. 1961(4).
    Communications with organizations and their employees are governed 
generally by section 77.10.
    g. ``Person.'' The term ``person'' includes individuals and 
organizations as defined in paragraph 77.2(f).
    h. ``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 
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 differentiates between a represented ``party'' and a 
represented ``person.'' This distinction is fully consistent with the 
language of and principles underlying DR 7-104(a)(1) and Model Rule 
4.2, which establish general prohibitions against ex parte contacts 
with a represented ``party.'' Section 77.5 of this part generally 
prohibits government attorneys from initiating ex parte contacts with 
represented parties, but does not prohibit ex parte contacts with 
represented persons. (However, sections 77.8 and 77.9 also prohibit 
certain contacts with represented persons).
    An individual is considered to be a ``represented party'' under 
paragraph 77.3(a) 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, but are 
represented regarding the subject matter in question, are considered 
represented persons under this rule.
    Several commenters argued that this section's basic distinction 
between represented ``persons'' and represented ``parties'' runs 
counter to the policy considerations underlying DR 7-104(A)(1) and 
Model Rule 4.2. However, as discussed in the ``General Comments'' 
section, this distinction is consistent with the vast majority of 
federal court opinions interpreting DR 7-104(A)(1) and Model Rule 4.2., 
as well as the text of those rules. Furthermore, this distinction is 
grounded in logic and common sense, given the legitimate necessity for 
attorneys for the government to be able to direct agents and 
cooperating witnesses to contact represented persons during undercover 
investigations.
    One organization commented that prosecutors will hold back on 
filing formal charges in order to maximize their ability to communicate 
with represented ``persons.'' The Department does not agree that 
prosecutors are likely to engage in this kind of systematic 
manipulation. The capacity to do so exists under the Sixth Amendment 
(given that the Sixth Amendment right to counsel attaches only once 
formal charges are filed, see Brewer v. Williams, 430 U.S. 387, 398 
(1979)), but there is no evidence of systematic prosecutorial abuse of 
the charging process under the Sixth Amendment. Furthermore, the 
Department intends to add a new provision to the United States 
Attorneys' Manual that will prohibit a Department attorney from 
communicating overtly with a ``target'' of an investigation before he 
or she is formally charged or named as a civil defendant, except in 
specifically enumerated circumstances.

Section 77.4: Constitutional and Other Limitations.

    This section makes clear that this regulation does not purport to 
authorize any communication prohibited by the Constitution or any 
federal statute or Federal Rule of Criminal or Civil Procedure. 
Although these rules do 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; and, in fact, this regulation is explicitly intended to 
supersede local federal court rules regarding ex parte contacts by 
attorneys for the government. See Sec. 77.12 and accompanying 
commentary.
    No specific comments were received regarding this section, and it 
has not been changed.

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

    This section closely tracks the language of DR 7-104(A)(1) and 
Model 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 section 77.3, 
about the subject matter of the representation without the consent of 
that individual's attorney. As with DR 7-104(A)(1) and Model Rule 4.2, 
the prohibition applies 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, this rule proscribes an attorney from directing a 
government investigator to 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.'' See United States v. Heinz, 983 F.2d 609, 
612-14 (5th Cir. 1993).
    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.
    No specific comments were received regarding this section, and it 
has not been changed.

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 whom the Department attorney knows is represented 
concerning the subject matter of the representation, without first 
obtaining the consent of the represented party's counsel.
    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. It is also consistent with DR 7-104(A)(1) 
and Model Rule 4.2.
    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 typically arises before a judicial 
or other appearance, when the government attorney has some information 
suggesting that the person may be represented. It also may 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, 
because in such circumstances the court in most jurisdictions must 
approve termination of representation.
    In response to one comment, it is worth clarifying that that 
representation is presumed to cease to be current for purposes of these 
rules when the matter in question has reached a final judgment (i.e., 
once the direct appeals process, including any petition for certiorari, 
has run its full course), unless there is reason to believe that 
representation is continuing.
    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).
    One organization commented that the right to inquire whether a 
party is represented by counsel is an invitation to a more substantive 
conversation with a represented party with respect to the matter 
underlying the representation, which would violate these rules. The 
Department does not agree that this paragraph creates a significant 
potential for abuse. This exception, which is clear in its terms, 
allows Department attorneys to do no more than determine whether a 
person is in fact represented by counsel. The Department expects that 
all Department attorneys will understand the limited parameters and 
purpose of this exception, and any attempt to use this paragraph to 
gather additional information about the subject matter of the 
representation would be a clear violation of these rules and would 
constitute sanctionable conduct.
    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 for this 
exception, 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). More generally, 
communications authorized by discovery procedures already have in place 
appropriate mechanisms for protection of the attorney-client 
relationship. This provision ensures that this regulation does not 
prevent such communications from continuing to be allowed.
    This exception does not purport to authorize any communications not 
otherwise available pursuant to approved discovery procedures or legal 
process. However, one individual commented that the text of paragraph 
(b), as proposed in March 1994, might be construed to authorize certain 
discovery procedures--such as the taking of a party's deposition 
testimony in the absence of the party's attorney and without the 
attorney's prior agreement--even where such practice was not in 
accordance with the rules of the applicable tribunal. To clarify that 
this paragraph's intent is to authorize only approved discovery 
procedures or legal process, this paragraph has been amended in the 
final rule to exempt only those communications made pursuant to 
discovery procedures or legal process ``in accordance with the orders 
or rules of the court or other tribunal where the matter is pending.''
    Paragraph (c): Initiation of communication by represented party.
    This paragraph sets out the circumstances under which it is proper 
for a government attorney to communicate with a represented party who 
has initiated contact, without the consent of that party's counsel.
    A defendant may wish to communicate with the government outside the 
presence of counsel for many valid reasons. For instance, a defendant 
may wish to cooperate with the government but not want his or her 
attorney to know for fear that the attorney will disclose the 
defendant's intentions to others. This situation may arise, for 
example, when the defendant's attorney is being paid by another 
individual involved in a criminal enterprise, and the defendant 
questions whether he or she has the attorney's undivided loyalty. 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 vigorously to enforce 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 requires such a result.
    This paragraph includes 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, this paragraph requires that several steps be taken before 
a government attorney may engage in a substantive discussion with the 
represented party. 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 manifest his or 
her desire to waive the right to counsel in a voluntary, knowing, and 
informed way. 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 judge, or other tribunal of competent jurisdiction. 
Then, it is up to the court to determine that the waiver satisfies the 
provisions of this rule or that substitute counsel is in place 
(including counsel appointed at that time by the court) who has 
consented to the communication.
    This paragraph does not require, however, that the waiver must 
always take place before the judge or magistrate judge. In exceptional 
circumstances, it may be impractical or unsafe to bring the defendant 
before a judge or magistrate judge to secure the waiver. In such 
circumstances, the government attorney may secure a waiver from the 
defendant outside the court, and, before any substantive discussion 
between the defendant and the government takes place, bring evidence of 
the waiver to the court so that the court can determine whether the 
waiver was made knowingly, intelligently, and voluntarily.
    One United States Attorney's Office commented that paragraph (c), 
as proposed, appeared to require an attorney first to obtain an 
informed waiver and only after receiving such a waiver to bring the 
matter before the appropriate tribunal. The Department does not intend 
to require (and does not understand the text of paragraph (c) to 
require) an attorney for the government, when contacted by a 
represented party, necessarily to attempt to secure a waiver himself or 
herself before bringing the matter to the attention of the court. A 
government attorney who is contacted by a represented party may, 
consistent with this paragraph, choose to bring the matter directly to 
the attention of the court, assuming the represented party has 
manifested his or her desire to waive the right to counsel. The court 
then would determine whether the party wishes to waive the presence of 
counsel for the communication. In general, however, the usual practice 
is for the government attorney to obtain from the represented party a 
waiver before bringing the matter before the court.
    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.
    One organization objected to the extension of this exception to 
anyone other than a ``fearful defendant,'' suggesting that any other 
client will have no better reason to initiate communication than ``a 
misguided belief that he can help himself by talking to the 
prosecutor.'' The Department believes that it would be overly 
paternalistic to refuse to permit any but fearful represented parties 
to initiate direct contact with the government. Given that a criminal 
defendant has a constitutional right to decline legal representation 
entirely, see Faretta v. California, 422 U.S. 806 (1975), government 
attorneys should not be ethically bound to refuse to listen to a 
criminal defendant who chooses to decline the presence of counsel for 
purposes of a particular communication with appropriate court approval.
    Additionally, it would be neither workable nor proper to require a 
Department attorney or judicial officer to probe the client about his 
or her relationship with counsel in order to ascertain whether the 
client is genuinely fearful, or fearful enough, of his or her 
attorney's involvement to justify a conversation outside the presence 
of counsel. Such an inquiry would tend to enhance, not minimize, 
intrusion into the attorney-client relationship. A more reliable 
protection of the client's interest and of the attorney-client 
relationship is this paragraph's careful process of testing the 
client's desire (as opposed to the client's reasons) for waiving the 
presence of counsel. This is the same analysis the courts undertake in 
assessing waivers of the constitutional rights to counsel or against 
self-incrimination. The proper issue in such a setting, as here, is 
whether the waiver is knowing, intelligent, and voluntary.
    Another commenter opined that paragraph (c), by allowing 
represented parties to waive the presence of counsel and speak directly 
to a government attorney, would authorize a violation of the 
represented party's constitutional rights under Miranda v. Arizona, 384 
U.S. 436 (1966), and its progeny. Cases following Miranda provide that 
custodial interrogation must cease whenever the person in custody 
invokes his or her right to have counsel present. See, e.g., Edwards v. 
Arizona, 451 U.S. 477 (1981). However, the prohibition against further 
interrogation does not apply when the accused himself or herself 
initiates further communication, see id. at 484-86, which would need to 
be the case for this paragraph to apply.
    Paragraph (d): Waivers at the time of arrest.
    The previous paragraph (paragraph (c)) provides the general 
guidelines regarding how a represented party may waive protections 
otherwise provided under this regulation. This paragraph provides for a 
different rule dealing specifically with a waiver at the time of 
arrest.
    This paragraph provides that a government attorney may communicate 
directly with a represented party ``at the time of arrest of the 
represented party'' without the consent of that party's counsel, 
provided that 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.
    A substantial body of law has developed regarding waiver of 
constitutional rights in the immediate post-arrest setting. The 
Department believes that the constitutional protections established 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.
    The Department received two comments regarding this paragraph: one 
relating to the timing of the waiver, and the other relating to the 
terms of the waiver.
    A Department component commented that it would clarify the meaning 
of a communication ``at the time of the arrest of the represented 
person'' to add to the text that such communication must be made ``at 
the time of the arrest of the represented party before he or she is 
presented to a judicial officer with respect to that arrest . . . .'' 
The Department has decided against adopting the proposed additional 
language, because it would unadvisedly extend this exception beyond its 
proper and intended narrow limits. This exception to the general rule 
against post-arrest communications is designed to preserve the ability 
of government attorneys to interview individuals immediately (i.e., 
within hours) following arrest as an effective and important law 
enforcement tool. See, e.g., 18 U.S.C. 3501(c). It is not intended to 
allow government attorneys to attempt to initiate communications with 
an arrested person any time before the person is presented to a 
judicial officer, which can extend days beyond the ``time of arrest.'' 
The Department believes that such an extension of this limited 
exception could put excessive pressure on clients and unduly intrude 
upon the attorney-client relationship.
    A United States Attorney's Office commented that proposed paragraph 
(d), under which the represented party must be advised of and waive 
``his or her constitutional rights,'' could be construed to require the 
represented party to be explicitly told that he or she has a right to 
his or her attorney, and not just that he or she has a right to an 
attorney (as required by Miranda v. Arizona, 384 U.S. 436 (1966)). This 
paragraph is intended to apply whenever an arrested person is read his 
or her Miranda rights and waives those rights; it is not intended to 
require the represented party to be apprised of his right to counsel in 
any different or more specific terms than Miranda and its progeny 
require. To make clear that the usual Miranda warnings and waiver 
suffice for purposes of this section, paragraph 77.6(d) has been 
amended in the final rule to read as follows: ``The communication is 
made at the time of the arrest of the represented party and he or she 
is advised of his or her rights under Miranda v. Arizona, 384 U.S. 436 
(1966), and voluntarily and knowingly waives them.''
    Paragraph (e): Investigation of additional, different, or ongoing 
crimes or civil violations.
    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 been neither 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 those rules.
    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 or unlawful 
conduct that are intended to impede the administration of justice or 
the trial of the charged crime, 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 a 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.
    One organization objected to this section's coverage of criminal or 
wrongful activity that has already been completed at the time of the 
communication, as distinct from activity that is ongoing. However, the 
Department sees no basis in the policies underlying the Sixth Amendment 
and the Model Rules for basing the propriety of investigation into 
additional or different uncharged crimes on whether such activity is 
complete or ongoing.
    One individual expressed concern that Department attorneys would 
exploit this exception by making gratuitous allusions to other offenses 
in the course of an otherwise illicit contact with a represented party. 
As noted above, prevailing case law interpreting the Sixth Amendment 
and the Model Rules permit an attorney to question a defendant as to 
uncharged offenses, and there is no evidence of systemic prosecutorial 
abuse of this type of interrogation. Accordingly, there is no reason to 
suspect that prosecutorial practice under these rules will be 
different.

Paragraph (f): Threat to safety or life.

    The Supreme Court has recognized that, in certain limited 
situations, the need to guard against threats to public safety can 
justify noncompliance with otherwise applicable constitutional 
safeguards. 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''). This paragraph 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.
    No specific comments were received regarding this paragraph, and it 
has not been changed.

Section 77.7: Represented Persons; Investigations

    As noted in the discussion of section 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 
sections 77.8 and 77.9 regarding certain categories of negotiations and 
respect for attorney-client relationships.
    Two individuals commented that this section, even as limited by 
sections 77.8 and 77.9, allows a broader range of contact with persons 
under investigation than is necessary to meet the Department's 
legitimate investigative needs. These individuals agreed that the 
government must be free to conduct undercover operations and 
investigations, even when field investigators coming into contact with 
potential criminal or civil respondents are directed by government 
attorneys. They argued, however, that overt communications with persons 
during the investigative stage are not similarly justified.
    The Department agrees that overt communications between a 
government attorney and a represented person during the investigative 
stage raise different considerations from covert communications and 
should be subject to greater restrictions. For this reason, the 
Department plans to make revisions to the United States Attorneys' 
Manual providing that government attorneys should engage in overt 
communications only after carefully considering whether the 
communication is more appropriately handled by others, and should 
generally not communicate overtly, or cause another to communicate 
overtly, with a target of a federal criminal or civil investigation, 
who is known by the Department attorney to be represented by counsel, 
concerning the subject matter of the representation. Nevertheless, the 
Department believes that overt contacts by federal attorneys and agents 
with witnesses and subjects of investigations are often necessary for 
effective law enforcement and hence should be permitted.

Section 77.8: Represented Persons and Represented Parties; Plea 
Negotiations and Other Legal Agreements

    This section prohibits government attorneys from initiating or 
engaging in negotiations of certain specified legal agreements with any 
individual whom the government attorney knows is represented by 
counsel, without the counsel's consent. Even when the regulation 
otherwise permits substantive discussions with a represented party or 
represented person, 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 
without the consent 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 paragraph 77.6(c) are satisfied.
    The Department believes that this section is important for the 
preservation of the attorney-client relationship. One of the primary 
purposes of DR 7-104 and Model Rule 4.2 is to protect an individual 
represented by counsel from overreaching by an attorney for an 
adversary. The Department believes the risk and the consequences of 
such overreaching are at their 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 negotiations 
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 immunity agreements without the consent of 
counsel.
    No specific comments were received regarding this section, and it 
has not been changed.

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 section 77.6, 
or with a represented person pursuant to section 77.7, the 
communication is nevertheless subject to the restrictions of this 
section.

Paragraph (a): Deference to Attorney-Client Relationship

    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 improperly 
seek to 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 
this circumstance, 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 requires 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.
    One organization commented that judicial approval, or at least 
approval by a designated Assistant Attorney General (rather than by a 
United States Attorney), should be required before an attorney for the 
government may apprise a represented party or person of any perceived 
conflict of interest. Another organization and an individual commented 
that attorneys for the government should never be allowed to inform a 
represented individual of a perceived conflict of interest, and, 
instead, should be required to move to disqualify counsel and leave it 
to the court to adjudicate any conflicts of interest. The Department 
believes that there will be circumstances in which it will not be 
feasible to obtain a judicial order challenging the representation 
(especially prior to the filing of charges), or when the exigencies of 
the situation may make it impracticable to obtain prior authorization 
of a judicial officer or an Assistant Attorney General. In such 
circumstances, and when a high-level Department official, such as a 
United States Attorney, determines that there is a significant 
likelihood of a conflict of interest between a represented individual 
and his or her attorney, it is better that the represented person or 
party be apprised of the potential conflict of interest than be left 
uninformed. Accordingly, the Department has decided to leave this 
paragraph unchanged in the final rule.

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.
    However, even when an undercover operative's attendance at such a 
lawful 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 paragraph 
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 make every attempt to avoid taking any 
role in the shaping of defense strategy or trial preparations. 
Additionally, agents and informants should be instructed to avoid 
imparting lawful defense strategy or trial preparation information 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.
    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).
    A Department component commented that an undercover agent's 
attendance at a meeting at which legal strategy is not discussed does 
not intrude on the attorney-client relationship; therefore, the 
component proposed limiting this paragraph's prohibition against 
government agents participating in an attorney-client meeting or 
communication to situations where there is a ``reasonable basis'' to 
believe that the meeting or communication will concern legal advice or 
strategy. The Department believes that it is unwise and unworkable to 
encourage government attorneys and undercover agents to guess whether 
legal issues will come up in an attorney-client meeting or 
communication. It would also be disruptive of the attorney-client 
relationship for government attorneys and undercover agents to gather 
the information that might make such a determination even remotely 
reliable. Therefore, this paragraph has not been changed.

Section 77.10: Organizations and Employees

    This section addresses the difficult issue of when a communication 
with an employee or member of a represented organization should be 
considered a communication with the organization itself. Important 
interests depend on this determination. On the one hand, organizations 
should not be shielded from effective criminal or civil law enforcement 
prosecution simply by retaining counsel. It is not uncommon for federal 
prosecutors to encounter attorneys who assert that they represent every 
individual in a large corporation or organization. If such attorneys 
were able to prevent government investigators from gaining informal 
access to any employee of the organization by withholding consent, 
information relevant to claims against the organization might never 
come to light because such information is often in the exclusive 
possession of the organization and its employees. See, e.g., Suggs v. 
Capital Cities/ABC Inc., 54 Empl. Prac. Dec. (CCH)  40,195 at 63,910 
(S.D.N.Y. Apr. 24, 1990). On the other hand, organizations are entitled 
to the effective assistance of counsel, and the relationship between an 
organization and its counsel deserves respect.
    The Department believes that this section, and particularly the 
definition of ``controlling individual'' in paragraph (a) of this 
section, 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 properly characterized under this regulation as a 
communication with a represented organization (that is, if the 
communication is with a controlling individual), then that 
communication is subject generally to the same limitations that would 
apply if the communication were with a represented person or 
represented party.
    In accord with the basic structure of this regulation, 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, with any controlling 
individual of the organization without the consent of the 
organization's attorney, subject to the exceptions enumerated in 
Sec. 77.6. 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, provided the 
communication does not violate the provisions of Secs. 77.8 or 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.
    One individual and one organization questioned limiting the class 
of employees who should be considered ``controlling individuals'' for 
purposes of this subsection to those who participate in framing the 
organization's legal position in the matter. They argued that the 
proposed ``controlling individual'' test authorizes contacts with 
employees who, while not directing the organization's counsel, 
nonetheless have extensive authority to act on behalf of the 
organization. The underlying concern of these comments appears to be 
that this paragraph, as proposed, authorizes contacts with many 
employees who are likely to possess information relevant to claims 
asserted against the corporation and who have the capacity to make 
statements that a court will deem admissible at trial as evidentiary 
admissions against the corporation. This is certainly true. However, 
the Department believes that its anti-contact rule should not be 
designed with the goal of protecting corporations from disclosure of 
prejudicial facts. See, e.g., Action Air Freight v. Pilot Air Freight, 
769 F. Supp. 899, 903 (E.D. Pa. 1991) (anti-contact rule ``should not 
necessarily chill the flow of harmful information''); Hanntz v. Shiley, 
Inc., 766 F. Supp. 258, 267 (D.N.J. 1991) (``the policies of Rule 4.2 
do not justify a wholesale restriction on discovery of factual 
information, damaging or not'').
    Anti-contact rules such as DR 7-104 and Model Rule 4.2 are intended 
to protect the attorney-client relationship from unnecessary 
interference and to protect represented parties from overreaching by 
opposing counsel. Damage to the attorney-client relationship inheres 
particularly in communications with high-level corporate employees who 
have contact with the corporation's attorneys in the course of making 
ultimate decisions regarding choice of counsel, implementing counsel's 
advice, and determining settlement and other litigation strategies. 
Therefore, 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'' 
consistently with the principles underlying the disciplinary rules on 
ex parte contacts. The Department also believes that the alternative 
approaches urged by commenters would impose unacceptable constraints on 
federal law enforcement. Therefore, this paragraph has not been 
changed.
    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 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).
    No specific comments were received regarding this paragraph, and it 
has not been changed.
    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 paragraph 
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 regulation 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 
related 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 rules 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 regulation.
    No specific comments were received regarding this paragraph, and it 
has not been changed.
    Paragraph (d): Communications with separately represented 
controlling individuals.
    This paragraph applies only when a controlling individual of a 
represented organizational party has retained 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 Sec. Sec. 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.
    No specific comments were received regarding this paragraph, and it 
has not been changed.
    Paragraph (e): Initiation of communication by 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 paragraph 77.6(c) must be 
satisfied before any substantive communications are made.
    No specific comments were received regarding this paragraph, and it 
has not been changed.
    Paragraph (f): Multiple representation.
    This paragraph makes clear that these rules should not be construed 
as altering existing legal and ethical rules regarding the propriety of 
multiple representation.
    No specific comments were received regarding this paragraph, and it 
has not been changed.

Section 77.11: Enforcement of This Part

     Paragraph (a): Exclusive enforcement by Attorney General.
     In order to ensure consistency and uniformity in the 
interpretation of the final rule, this paragraph provides that the 
Attorney General shall have exclusive authority to enforce these 
regulations. Thus, state courts, state disciplinary boards, and federal 
courts may not impose sanctions on or otherwise regulate a Department 
attorney engaged in federal law enforcement activities for violations 
of an anti-contact rule or subject a Department attorney to regulation 
under state or local federal court 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 this regulation. It provides that the 
Department's Office of Professional Responsibility (``OPR'') shall have 
sole original jurisdiction to investigate such allegations and that 
violations will be treated as matters of attorney discipline. See 28 
CFR Sec. 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.
    One individual and one organization objected to placing 
investigative responsibility in OPR, suggesting that OPR had, in the 
past, been reluctant to share the results of its investigations. The 
Department recently adopted a policy under which the results of OPR 
investigations are disclosed to the public if, inter alia, there is a 
finding of intentional and knowing professional misconduct by a 
Department attorney in the course of an investigation or litigation and 
the public interest in disclosure outweighs the privacy interest of the 
attorney and any law enforcement interest. Therefore, there will be 
meaningful disclosure of findings of violations of these rules.
    Moreover, allegations of professional misconduct by Department 
attorneys concerning violations of these rules may be reported directly 
to OPR by any person. Complaints filed by members of the public will be 
fully and thoroughly reviewed by OPR.
    Therefore, this paragraph has not been changed.
     Paragraph (b): No private remedies.
    This paragraph provides that the rule is not intended to and does 
not create any substantive rights for any person other than an attorney 
for the government. In particular, a violation of the regulation 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.
    No specific comments were received regarding this paragraph, and it 
has not been changed.

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. As discussed in the 
``General Comments'' section, these rules, as substantive regulations 
duly promulgated by the Attorney General pursuant to statutory 
authority, have the force and effect of law. 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 
should therefore be consistent with state rules wherever state bar 
authorities have adopted a rule containing the ``authorized by law'' 
exception. Thus, no conflict will arise between state and federal law 
in those jurisdictions with regard to communications with represented 
persons. Similarly, no conflict should arise between this regulation 
and the federal district court rules that have adopted an anti-contact 
rule containing the ``authorized by law'' exception. This regulation 
therefore need not give rise to any tension with any provision of state 
or federal law.
    The Department nonetheless recognizes the likelihood that 
government attorneys' conduct with respect to contact with represented 
persons may continue to be viewed by some as inconsistent with state or 
local district court rules. To effectuate fully the provisions of this 
regulation, it therefore is important that the regulation include a 
plain statement by the Department of its intention to preempt and 
supersede regulation by state courts, state disciplinary authorities, 
or federal district courts of ex parte communications by government 
attorneys in civil or criminal law enforcement investigations or 
proceedings. See Hillsborough County, Fla. v. Automated Med. Labs, 471 
U.S. 707, 718 (1985) (``because agencies normally express problems in a 
detailed manner and can speak through a variety of means, including 
regulations, preambles, interpretative statements and responses to 
comments, we can expect that they will make their intention clear if 
they intend for their regulations to be exclusive'').
    There is no indication from any of the comments received of any 
confusion regarding the breadth of the Department's intention to 
displace state and federal law; on the contrary, the comments in this 
area generally both fully grasped and took issue with the Department's 
stated intention to occupy the field. Given the integral importance of 
the exclusive enforcement authority to the overall regulatory scheme, 
however, some revisions have been made to this section to leave no 
doubt that it is the express intention of these rules to completely 
preempt and supersede the operation of state and local laws or rules as 
they relate to contacts by government attorneys in civil or criminal 
law enforcement investigations or proceedings. Such occupation of the 
field is necessary to ensure that government attorneys' conduct 
respecting contacts with represented persons be subject to uniform 
regulation and predictable standards, as against potential variations 
in individual state and local rules and in interpretations of those 
rules.
    Accordingly, this regulation completely preempts state or federal 
court regulation of ex parte contacts in law enforcement matters by 
government attorneys and those acting at their direction, with one 
important exception. If the Attorney General finds that a Department 
attorney has committed a ``willful violation'' of any of these rules, 
preemption will not apply, and that attorney will be subject to 
disciplinary proceedings both by the Department and by the appropriate 
state disciplinary authorities.
    Several commenters argued that it is inappropriate to preclude an 
otherwise appropriate state or federal court disciplinary proceeding 
when the Department's own rules have been violated. The Department 
respectfully disagrees. A primary purpose for this regulation is to 
remove the substantial burden on federal law enforcement caused by 
uncertainty as to what constitutes appropriate conduct by Department 
attorneys. This uncertainty would not be removed were it left to the 
various state and federal district courts to interpret these rules and 
determine on their own whether they had been violated in any particular 
case. For this reason, the Department believes that it is necessary 
that it retain exclusive authority to determine whether one of its 
lawyers has breached these rules, with the important proviso that, when 
there is a finding of a willful violation, a state disciplinary 
authority may also impose sanctions.
    One United States Attorney's Office commented that the meaning of a 
``willful violation'' had not been clearly explained in the previous 
commentary. In response to this comment, the Department here clarifies 
that a ``willful violation'' means an intentional and deliberate 
violation of these rules, as determined by the Attorney General.

United States Attorneys' Manual

    In addition to the promulgation of the rules discussed above, the 
Department intends to add several new provisions to the United States 
Attorneys' Manual to provide additional guidance to Department 
attorneys when they deal with represented individuals during criminal 
or civil law enforcement investigations and proceedings.
    The Department has deliberately chosen to include certain baseline 
restrictions in the regulation and impose broader restrictions through 
provisions in the Manual. 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 regulation 
should be broad in scope and should provide unambiguous guidance that 
would not adversely affect federal law enforcement efforts. Thus, part 
77 distinguishes between the investigative period (before indictment, 
arrest, or the filing of a complaint) and the prosecutive period (after 
arrest or the commencement of formal proceedings). It also 
distinguishes between communications that are part of a factual 
investigation and communications that occur during negotiations of plea 
agreements, settlements, and similar legal arrangements.
    The planned Manual provisions will 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 all applicable provisions in the Manual. 
Failure to do so will result in appropriate departmental action.
    The planned changes to the Manual were included in the earlier 
publications simply for reference and were not subject to the 
requirements of notice and comment that applied to the provisions in 
the proposed regulation itself. The Department nonetheless received 
several comments regarding the draft Manual provisions. The Department 
has carefully considered those comments and has decided that it is 
appropriate (though not required) to respond to them briefly in this 
commentary. However, none of the comments received has prompted the 
Department to conclude that it should alter the planned Manual 
provisions. The Department anticipates that the Manual provisions will 
be substantially similar to the draft published in March 1994. The 
Department envisions publishing the Manual provisions soon and 
integrating them in the Manual with the final rules adopted here.
    Comments were directed mainly to a draft Manual provision that 
would prohibit a government attorney from communicating overtly about 
the subject matter of a representation with a person who the government 
attorney knows is a ``target'' of a federal criminal or civil 
enforcement investigation and who the government attorney knows is 
represented by counsel, without the consent of the target's attorney. 
(The provisions, as published in March 1994, would also provide several 
exceptions to this general prohibition against overt contacts with 
targets, 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 Miranda 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).
    Two United States Attorney's Offices urged reconsideration of the 
guideline generally prohibiting Department attorneys from directly 
communicating with known ``targets.'' These commenters expressed a 
number of concerns about the ``target'' provision--most significantly, 
that the determination of ``target'' status would be subjective and 
variable and that the proposed limitation on overt contacts with 
represented targets would interfere with the investigative process.
    The Department does not agree that the term ``target'' would make 
application of this planned restriction particularly troublesome. While 
determinations of ``target'' status surely are not scientifically 
precise, neither are a range of other similar determinations (e.g., 
``probable cause'' determinations) that prosecutors are expected 
routinely to make. In its enforcement of the planned 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 probably will 
be named as a defendant, that individual would not be 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 would not be enough. 
Thus, an individual will not be considered a target under the Manual 
guidelines 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 Department also does not believe that the contemplated 
restriction on overt communications with represented targets would 
significantly impede legitimate law enforcement activities. It is true 
that in certain types of cases and under certain exceptional 
circumstances, target interviews may be necessary for effective 
investigation; for that reason, the planned Manual provisions would 
allow that in such situations target interviews may be approved by a 
high-ranking Department official. However, as a general matter and in 
more routine circumstances, overt communications with targets have a 
more limited value to the investigative process, which is outweighed by 
the risk that they will interfere with the attorney-client relationship 
and place undue pressure on the target. 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 that 
the planned restrictions on overt communications with represented 
targets are appropriate.

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 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 
and other specified legal agreements.
77.9  Represented persons and represented parties; respect for 
attorney-client relationships.
77.10  Organizations and employees.
77.11  Enforcement of this part.
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 Bar rules are on file in most law libraries, and through 
on-line legal research services).
    (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; the Chief Counsel of the DEA and any attorney employed in 
that office, the General Counsel of the FBI and any attorney employed 
in that office or in the Legal Counsel Division of the FBI, and, in 
addition, any attorney employed in, or head of, any other legal office 
in a Department of Justice agency; 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) 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.
    (c) (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.
    (d) 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.
    (e) Employee means any employee, officer, director, partner, 
member, or trustee.
    (f) 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.
    (g) Person means any individual or organization.
    (h) 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.


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) 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 in accordance with the orders or rules of the 
court or other tribunal where the matter is pending, including, but not 
limited to testimony before a grand jury, the taking of a deposition, 
or the service of a grand jury or trial subpoena, summons and 
complaint, notice of 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 
so, 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 rights under Miranda v. Arizona, 384 U.S. 436 (1966), 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 and other legal agreements.

    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 forego 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 that there is 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 other 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) Initiation of communication 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 reviewed 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 
Office of Professional Responsibility shall review any complaint 
alleging a violation of this part made by a state or federal judge, bar 
disciplinary board, official, or ethics committee, or by any other 
person or entity. 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. In addition, this part is intended 
to preempt and supersede the application of state laws and rules and 
local federal court 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 or civil law enforcement investigations or 
proceedings; it is designed to preempt the entire field of rules 
concerning such contacts. When the Attorney General finds a willful 
violation of any of the rules in this part, however, sanctions for the 
conduct that constituted a willful violation of this part may be 
applied, if warranted, by the appropriate state disciplinary authority.

    Dated: July 30, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-19077 Filed 8-3-94; 8:45 am]
BILLING CODE 4410-01-P