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39910 Federal Register / Vol. 59. No. 149 / Thursday, August 4, 1994 / Rules and RegulationsDEPARTMENT OF JUSTICE28 CFR Part 77lAG Order No. 1903-941Communications With RepresentedPersonsAGENCY: Department of Justice.ACTION: Final rule.SUMMARY: This final rule governs thecircumstances under which attorneysemployed by the Department of Justice("Department") may communicate withpersons known to be represented bycounsel i n the course of lawenforcement investigations andproceedings.The purpose ofthis rule is to imposea comprehensive. clear, and uniform setof regulations on the conduct ofgovernment attorneys during criminaland civil investigations andenforcement proceedings. The rule isintended to ensure that governmentattorneys adhere to the highest ethicalstandards. while eliminating theuncertainty and confusion arising fromthe variety of interpretations of staterules. some of which have beenincorporated as local court rules in anumber of federal district courts.The rule establishes, prospectively. ageneral prohibition, subject to limitedenumerated exceptions, against contactswith "represented parties" without theconsent of counsel. This prohibitionderives from the American BarAssociation ("ABA") Code ofProfessional Responsibility and itssuccessor, the ABA Model Rules ofProfessional Conduct. The rule, on theother hand. generally permitsinvestigative contacts with "representedpersons": that is, individuals ororganizations that are represented bycounsel but that have not yet beennamed as defendants in a civil orcriminal enforcement proceeding orarrested as part of a criminalproceeding. However, ,he rule does notpermit contacts with representedpersons without the consent of counselfor the purpose of negotiating pleaagreements, settlements, or other similarlegal arrangements.In addition, the Department intends toissue substantial additions to the UnitedStates Attorneys' Manual ("Manual") toprovide additional direction toDepartment attorneys when they dealwith represented individuals andorganizations, in order to accommodatemore fully the principles and purposesunderlying the state bar rules. Thoseprovisions will further restrictgovernment attorneys when they contacttargets of criminal or civil law

enforcement investigations who areknown to be represented by counsel,and when they communicate with otherrepresented persons.EFFECTIVE DATE: September 6.1994.FOR FURTHER INFORMATION CONTACT:F. Mark Terison. Senior Attorney, LegalCounsel, Executive Office for UnitedStates Attorneys. United StatesDepartment ofJustice, (202) 514-4024.This is not a toll-free number.SUPPLEMENTARY INFORMATION:I. Background

This final rule on the subject ofcommunications with representedpersons culminates a lengthyrulemaking process in which a proposedrule on the same subject was issuedthree separate times for comment. See59 FR 10086 (Mar. 3. 1994); 58 FR 39976(July 26, 1993); and 57 FR 54737 (Nov.20,1992). Comments received after thepublication in November 1992 and inJuly 1993 of earlier versions of the ruleresulted in major substantive changesbeing made to the rule. As a result, anew proposal reflecting these changeswas published on March 3, 1994. Duringthe most recent comment period, theDepartment received many thoughtfulcomments from private attorneys. localbar organizations. state courts, federalprosecutors. and others. TheDepartment closely scrutinized all ofthese comments. After considering thosecomments, the Department made severalrelatively minor amendments to theproposed rule. TherefoffJ, the final ruleremains in substantially the same formas the proposed rule issued in March1994.The final rule reflects theDepartment's commitment to fosteringethical behavior consistent with theprinciples informing DR 7-104(A)(1) ofthe ABA Code of ProfessionalResponsibility and Rule 4.2 of theModel Rules of Professional Condl!ct,while setting forth clear and uniformnational guidelines upon whichgovernment attorneys can rely incarrying out their responsibilities toenforce federal laws. (The term"attorney for the government" isdefined in paragraph 77.2(a). and wherethis phrase, or a variant of it, such as"government attorney," is usedelsewhere in this commentary, it has themeaning set forth in paragraph 77.2(a),unless the context clearly indicatesotherwise, and it is typically usedinterchangeably with "Departmentattorney. "). In essence. this regulationpermits federal prosecutors and agentsto continue to conduct legitimatecriminal and civil investigations againstall individuals. whether or not those

persons are represented by counsel. Itallows government attorneys tocontinue to make or direct undercoveror overt contacts with individuals andorganizations represented by counsel forthe purpose of developing factualinformation up until the point at whichthey are arrested or charged with acrime or named as defendants in a c iv illaw enforcement action. However, theregulation generally does not permitfederal prosecutors to attempt tonegotiate plea agreements, settlements,or similar arrangements withindividuals represented by counselwithout the consent of their attorneys.This regulation also precludes. withcertain narrow exceptions, any contactswith represented parties after an arrest,indictment. or the filing ofa complainton the subject matter of therepresentation.Additionally, the Department plans toadd provisions to the United StatesAttorneys' Manual that will set forthfurther guidance. The Departmrally unfair for an attorney to

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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39911circumvent opposing counsel andemploy superior skills and legal trainingto take advantage of the opposing party.At the same time. the courts have longrecognized that government lawenforcement agents must be allowedbroad powers, within constitutionallimits, to investigate crime and civilviolations of police and regulatory laws.These powers properly include theauthority to conduct undercoveroperations and to interview witnesses,potential suspects, targets, and eventhose defendants who waive their rightto remain silent. Although the Fifth andSixth Amendments significantly restrictcontacts with defendants after theirinitial appearance before a judge or afterindictment, these constraints generallydo not apply before a person has beentaken into custody or charged in anadversary proceeding. Sound policiessupport this substantial power of policeto investigate. The general public,victims of crime, and even pC'tentialsuspects have a strong interest invigorous inquiry by law enforcementofficers before arrest or the filing ofcharges.As long as investigations were treatedas within the province of the policealone. the traditional rule forbiddingcounsel from directly contactingrepresented persons did not come intoconflict with legitimate law enforcementactivities. In recent years, however. theDepartment of Justice has encouragedfederal prosecutors to playa larger rolein preindictment, prearrestinvestigations. Some of this increasedinvolvement stems from the wider useof law enforcement techniques. such aselectronic surveillance. which requirethe preparation of legal filings. Also,complex white collar and organizedcrime investigations necessitate moreintensive engagement of lawyers. whopresent such cases to grand juries. Mostimportant, greater participation oflawyers at the preindictment stage oflaw enforcement has been regarded ashelpful in assuring that policeinvestigations comply with legal andethical standards.This extension of the traditionalprosecutor's responsibility has been asalutary development. One by-product.however. has been uncertainty aboutwhether the traditional professionallimitation on attorney contacts withrepresented parties should be viewed asa restriction upon prosecutors engagedin investigations and, by extension, theagents with whom they work. Theoverwhelming preponderance of federalappellate courts have held that therestriction on contacts with representedpersons does not apply at thepreindictment investigation stage. See.

e.g., United States v. Ryans, 903 F.zd731.739 (10th Cir.), cert. denied. 498U.S. 855 (1990); United States v.Fitterer, 710 F.zd 13Z8, 1333 (8th Cir.),cert. denied, 464 U.S. 852 (1983); UnitedStates v. Kenny, 645 F.2d 1323, 1339(9th Cir.), cert. denied, 452 U.S. 920(1981); United States v. Weiss, 599 F2d730.739 (5th Cir. 1979); and UnitedStates v. Lemonakis, 485 F.2d 941. 955-56 (D.C. Cir. 1973), cert. denied, 415U.S. 989 (1974). Only the SecondCircuit has suggested otherwise. SeeUnited 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 mutedsignif:::antly in a revised opinion by theSecond Circuit that "urge[dl restraint inapplying the rule to criminalinvestigations," 858 F.2d at 838, andultimately concluded that "a prosecutoris 'authorized by law' to employlegitimate investigative techniques inconducting or supervising criminalinvestigations * * *" Id. at 839. Bycontrast, state courts and state barorganizations have varied widely intheir interpretation of the scope of theprohibition on contacts embodied in DR7-104, Model Rule 4.2, and theiranalogs. Some examples of the varyinginterpretations are detailed below.Uncertainty about the scope andapplicability of DR 7-104, Model Rule4.2. and their state counterparts hasdirectly affected the investigativeactivities of agents, including FederalBureau of Investigation and DrugEnforcement Administration personnel,who work with prosecutors. Theexpansive application of these rules insome jurisdictions may have the effectof blocking preindictment interviews orundercover operations that most courtshave held permissible under federalconstitutional and statutory law.Additionally, the heightened threat ofdisciplinary action that accompanies theexpansive application of these rules hascreated a chilling effect on prosecutorsresponsible for directing theselegitimate investigative activities.These problems are compoundedwhen federal attorneys assigned to thesame case are members of different statebars. Under federal law, a Departmentattorney must be a member in goodstanding ofa state bar, but he or sheneed not belong to the bar in each statein which he or she is pract icing for thegovernment. Therefore, prosecutionteams often comprise attorneys admittedto different bars. The application ofdifferent state disciplinary rules to theseindividuals creates uncertainty,confusion, and the possibility ofunfairness. Indeed, one member ofatwo-member federal prosecution team

could receive a -:::ommendation foreffective law enforcement while theother member, licensed in a differentstate, might be subject to state disciplinefor the same conduct.In light of these circumstances, theDepartment has concluded t ha t acompelling need exists that warrants auniform federal rule to reconcile thetraditional rule against contacts with arepresented party with the obligation ofthe Department of Justice to enforce thelaw vigorously. Indeed, absent auniform federal rule, prosecutors havebeen moved on occasion to reduce theirparticipation in the investigative phaseof law enforcement so as to leave federalagents unfettered by state disciplinaryrules that were never intended to governpolice behavior. Such a retreat from thefield by prosecutors serves neitherefficiency nor the interest in elevatinglegal compliance and ethical standardsin all phases of law enforcement.Furthermore, the disciplinary rulesthemselves invite promulgation of aregulation such as this one. Nearly allthe states have adopted rules thatinclude an "authorized by law"exception. This final rule, a dulypromulgated reguiation, is intended toconstitute "law" within the meaning ofthose exceptions.Finally. the Department has longmaintained, and continues to maintain.that it has the authori ty to exempt itsattorneys from the application ofDR 7-104 and Model Rule 4.2 and their statecounterparts. Furthermore, theDepartment maintains that whether, andto what extent. such prohibitions shouldapply to Department attorneys is apolicy question. See Ethical Restraintsofthe ABA Code of ProfessionalResponsibility on Federal CriminalInvestigati0ns. 4B Dp. D.L.C. 576,577(1980). In light of the fact that all 50states and the District of Columbia haveadopted some form of a prohibition oncontacts with represented parties, andin view of the long history of thoserules. the Department believes that itsattorneys should adhere to theprinciples underlying those rules to themaximum extent possible, consistentwith the Department's law enforcementresponsibilities. Therefore, even thoughthe Department has the authority toexempt its attorneys from the reach ofthese rules. the Department has decidednot to implement a wholesaleexemption.Rather, this regulation attempts toreconcile the purposes underlying DR7-104 and Model Rule 4.2 with effectivelaw enforcement. Recognizing theimportance of the attorney-clientrelationship and the desirabil ity that anindividual who is represented by

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39912 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulationscounsel be fully advised by counselbefore negotiating legal agreements, thisregulation provides that federalattorneys may not negotiate pleabargains, settlement agreements,immunity agreements, or similararrangements without the consent of theindividual's attorney. There is aheightened risk in this context oftheprosecutor's superior legal training andspecialized knowledge being used to thedetriment ofthe untutored layperson.Thus, the regulations comport with theprincipal purpose of DR 7-104 andModel Rule 4.2 by insisting that theindividual's attorney participate inthese types of negotiations. Further,even when contacts are allowed, theregulation is designed to minimize anyintrusion into the attorney-clientrelationship. At the same time. thisregulation does permit direct contacts atthe preindictment, prearrestinvestigative stage with any individual,whether or not he or she is representedby counsel. The regulation is drafted toconform to the approach of most federalappellate courts that have consideredthe matter. See, e.g. United States v.Ryans, 903 F.2d 731 (lOth Cir.)(discussing cases), cert. denied, 498 U.S.855 (1990), and other cases citedpreviously in connection with thediscussion of preindictment contacts.The Department believes that publicpolicy and effective law enforcementwould not be served if the simple act ofretaining an attorney could serve toexempt a person from lawful, courtapproved investigative techniques. TheDepartment believes that it isinappropriate to alter investigativetechniques based upon an individual'sfinancial ability to retain counsel beforethe point at which an indigent would beafforded court-appointed counsel.This regulation and the plannedchanges to the United States Attorneys'Manual also will give effect to otherimportant aspects of the bar rulesagainst contacts with representedparties. For example, the regulationprecludes fede:al attorneys fromdisparaging an individual's counselor

from attempting to gain access toattorney-client confidences or lawfuldefense strategy. The guidelines that theDepartment intends tJ add to theManual also will make clear that oncean individual is ;'"1 a likeiy adversarialsituation with the government and hasretained an attorney to represent himselfor herself with respect to the particularsubject matter under investigation. thegovernment attorney must take greatercare before making any ex partecontacts. While the regulationauthorizes most communications before

arrest, the plannedManual changesprovide that, as a matter of internalpolicy guidance, federal prosecutorsgenerally should not make overtcontacts with represented targets ofinvestigations. However, the plannedManual provisions permit overt contactswith a represented target when initiatedby the target; when necessary to preventdeath or physical injury; when therelevant investigation involves ongoingor additional crimes, or different crimesfrom that to which the representationrelates; or when a United StatesAttorney or an Assistant AttorneyGeneral expressly concludes, under allof the circumstances, that the contact isneeded for effective law enforcement.Finally, the regulation and plannedManual provisions also address when agovernment attorney may communicatewith an employee, officer, or director ofa represented corporation ororganization without the consent ofcounsel. The regulation generallyprohibits a government attorney fromcommunicating with a current, highlevel employee of a representedorganizationwho participates as a"decision maker in the determination ofthe organization's legal position in theproceeding or investigation of thesubject matter" once the organizationhas been named as a defendant in acriminal or civil law enforcementproceeding. Further. the contemplatedManual provisions would generallyprohibit contactswithout the consent ofcounsel with controlling individuols oforganizations that have not yet bf,ennamed as defendants but are targets offederal criminal or civil lawenforcement investigations.This final rule recognizes that statecourts and disciplinary bodies generallyplay the primary role in regulating theconduct of all attorneys. including thosewho work for the federal government.The Department also recognizes thatwith respect to most matters,Department attorneys are subject to thebar rules and disciplinary proceedingsof the states in which they are licensed.However, the Department believes itmust be the final arbiter of the scope ofpolicing with respect to ex partecontacts involving federal prosecutors,subject to the Constitution and the lawsofthe United States. As noted above.because of the expanded participation offederal prosecutors in preindictmentinvestigations, and the trend of statecourts increasingly to apply DR 7-104and Model Rule 4.2 expansively againstfederal prosecutors. these rules haveaffected and circumscribed LlIe power offederal officials to carry out their legallymandated responsibilities. Thisregulation provides that the Attorney

General shall have exclusive authorityto determine these rules. Further, theDepartment's rules are intended fully topreempt and supersede the applicationof state and local court rules relating tocontacts by Department of Justiceattorneys when carrying out theirfederal law enforcement functions. Onlyif the Attorney General finds that aDepartment attorney has willfullyviolated these new rules would thatattorney continue to be subject to thefull measure of state disciplinaryjurisdiction.The Department is confident that,taken together, this regulation. theplanned Manual amendments, and thissupplemental information will promotethe public interest in effective lawenforcement in a manner that alsoconforms to the highest standards oflegal ethics.The procedures established by thisrule apply to conduct occurring after therule's publication.II. Rulemaking History

On November 22, 1992, theDepartment of Justice published in theFederal Register a proposed ruleregarding communications withrepresented persons. 57 FR 54737. ByDecember 21,1992, the close ofthecomment period, the Department hadreceived comments from 20 sources.The Department was concerned thatnot all inkrested parties had receivedsufficient opportwlity to respond duringthe ini al C( ".'1rnent period. Noting "thecomplo;x ami Impflrtant nature of therule to tl.e criminal and dvil justicesystems and the licenses andlivelihoods ofits attorneys," on July 26,1993. the Department reissued theproposed rule for an additional 30daycomment period. 58 FR 39976.TheDepartment received 219 commentsfollowing this second publication of theproposed rule.On March 3, 1994, the Departmentissued a new proposed rule governingthe same subject matter for anadditional 30-day comment period. 59FR 10086. In response to concernsraised by bar organizations, bar counsel,state and federal judges, and others, thatproposal reflected substantial changesfrom the earlier prfJposals. Thispublication of the proposed rule wasaccompanied by the issuance ofcompanion provisions that theDepartment intends to include in theUnited States Attorneys' Manual, whichset forth certain more restrictive policieswith regard to overt investigatoryc o m m u n i c a ~ i o n s . The discussion thatfollows summarizes the issues that wereraised in response to the Department'slatest publication of the proposed rule.

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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39913III. Summary ofComments ReceivedDuring the most recent commentperiod, which closed on April 4. 1994,timely comments were received from 31sources, including nine individuals,

nine organizations, four state courtjudges, one federal court judge, five U.S.Attorney's Offices, two Department ofJustice components, and one otherfederal agency. Ofthe 31 commentsreceived, nine comments supportedpromulgation of the proposed rule, 20comments opposed the rule. and twoother comments failed to take anydefinitive position on the proposed ruleas a whole. As with previous versionsof this rule. many writing in oppositionto the Department's proposal arguedthat it unfairly permits the Departmentto hold its attorneys to ethical rulesdifferent from those that apply to a liother attorneys. Other opponents of theproposed rule-most notably the ABAand a special committee of theConference of State Supreme CourtChief Justices---{;hallenged the proposedrule on constitutional and statutorygrounds, arguing that t ~ Departmentlacks authority to preempt state ethicsrules or to supersede local federaldistrict court rules. Those writing insupport of the proposal generallypraised it ior bringing certainty andclear guidance to an area that previouslyhas been unclear and disruptive of lawenforcement functions.The Department has consideredcarefully each comment and appreciatesthe thoughtfulness reflected in them.The Department's responses to thosecomments are discussed below, either inthe "General Comments" section or inthe context of the particular section orparagraph to which they pertain as f.'artoithe "Section-by-Section" analyf'is. Allrevisions adopted in the final rule arf:Jindicated.IV. General CommentsComments were received on thefollOWing thn,e general issues: (1) iheneed for the rule; (2) the constitutional

and statutory authority for the rule; and(3) the sufficiency of the rule's internalenforcement merhanisms. These generalcomments essentially repeatedcomments received in response toprevious versions of the proposed rule.After careful reconsideration of theserecurring issues. the Department'sposition on many of these subjects-inparticular, the constitutional andstatutory basis for this rule and the needfor and advisability of such a rule-remains the same. Therefore, theDepartment's response in this sectionbuilds upon responses published inprevious commentaries.

A. The Need for the Rule. One statecourt judge, one federal judge, fiveindividuals, and six organizationscriticized the proposed rule as holdinggovernment attorneys to lower ethicalstandards than those that apply to allother attorneys. This comment wacformulated in a variety of ways, with thefollowing as illustrative examples:"[t]he rules apply to everyone, and itshould especially apply to attorneys inGovernment service;" " I do not knowwhy it is that the department somehowthinks [it] can exempt [its] attorneysfrorr. the rules of conduct that all of thelawyers must abide by;" "[Department]lawyers should be treated as subject tothe same rule of law that applies to theconduct of all other lawyers;" and"[flairness simply will not tolerateexalting the role ofone adversary'sadvocate above the other."In response to these comments, theDepartment finds it important, first, tomake clear that this rule is not designedto diminish the ethical responsibilitiesof government attorneys; it is intendedto clarify those responsibilities. Thecurrent situation, in which state contactrules purport to govern the substantiveconduct of federal law enforcementattorneys, has proven unsatisfactorybecause the standards of ethical conductare uncertain and subject tounpredictable and varyinginterpretations. This uncertainty as towhat constitutes appropriate conduct byDepartment attorneys has interferedwith the responsible exercise of the lawenforcement duties ofDepartmentattorneys. The basic purpose of thisregulation is to provide a uniform ruleof ethics regarding contactswithrepresented persons that can beconsistently and predictably applied. Bydaing so, the regulation will allow allDepartment attorneys involved in afederal law enforcement proceeding tounderstand and abide by applicablestandards. There is simply no basis forbelieving that there will be a reductionin compliance with ethical standards byfederal prosecutors.Many commenters opposing theproposed rule dismissed as unnecessarythe creation of a uniform set of rules forDepartment attorneys. Some commentedthat the ex parte contact rules currentlyin place do not vary significantly, giventhat virtually every jurisdiction hasadopted some version of the ABA's anticontact rule. Other commenters arguedthat, in any event, state and local ethicsrules do not interfere substantially withfederal law enforcement activitiesbecause only in rare instances havefederal prosecutors actually beeninvestigated by a state disciplinaryauthority.

Although an anti-contact rule is ineffect in nearly al l jurisdictions, i t is no tinterpreted uniformly. Among otherthings, jurisdictions differ as to whetherthe anti-contact rule applies in theinvestigatory stage, compare UnitedStates v. Ryans, 903 F.2d 731, 739 (10thCir.), cert. denied, 498 U.S. 855 (1990)with United Statesv. Hammad, 858F.2d 834, 839 (2d Cir. 1988), cert.denied, 498 U.S. 871 (1990); whetherthe rule applies to prosecutors, compareMatter ofDoe, 801 F. SU,Jp. 478 (D.N.M.1992) withDistrict of Columbia Rules ofProfessional Conduct Rule 4.2 cmt. 'II 8;whether the rule applies to formeremployees of a represented corporateparty, compare Public Servo Elec. & GasV. Associated Elec. & Gas, 745 F. Supp1037,1042 (D.N.J. 1990) with PolycastTechnology Corp. v. Uniroyal, Inc., 129F.R.D. 621, 628 (S.D.N.Y. 1990); andwhether the rule applies to all corporateemployees who could make admissionson behalfof the corporation or only toemployees who belong to a so-called"control group." CompareModel Rulesof Professional Conduct Rule 4.2 cmt.(1983) with Wright by. Wrightv. GroupHealth Hasp., 691 P.2d 564 (Wash.1984). The lack of uniformity ininterpreting existing anti-contact ruleshas created concern among governmentattorneys of inadvertently running afouluf state court or federal district courtrules. The thre&t of disciplinaryproceedings (and th e possible resultingloss of license and livelihood) against agovernment attorney engaged inlegitimate law enforcement activitieshas had a chilling effect on theresponsible exercise of law enforcementduties. Many federal prosecutors whosubmitted comments in connection withthe earlier versions of this rule statedthat they feel compelled to refrain fromauthorizing or participating inlegitimate and ethical law enforcementactivities because of th e currentuncertainty as to the acceptability ofvarious ex parte contacts.To add to the confusion inherent inthe current situation, the Department'sattorney staff consists of members of

many different state bars whocommonly appear in multiplejurisdictions. Under theModel Rule'sapproach, an attorney practicing in ajurisdiction in which he or she is no t amember of the bar remains subject to thejurisdiction ofthe bar of which he orshe is a member, but i f the rules in thetwo places differ, principles of conflictof laws may apply. Model Rules ofProfessional Conduct Rule 8.5 and cmt.(1983). As a result, when state anticontact rules purport to govern theconduct of federal attorneys. the

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39914 Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 I Rules and Regulationsquestion of which rule governs theconduct of Department lawyers mayoften be complicated. Indeed, as wasnoted in the "Background" section ofthis commentary, government attorneysmay be subject to substantially differentrules when they are working alongsideone another on the same case. Onecommenter proposed that instead ofisst:ing a uniform contacts rule forDepartment attorneys, the Departmentshould encourage its attorneys topractice only in a given jurisdiction andto obtain bar membership in thatjurisdiction. However, Congress hasmade clear that Department attorneysshould be able to practice in differentjurisdictions so long as they are amember of some state bar, and there isa significant federal interest inpreserving the Department's ability toassign its attorneys wherever there arelaw enforcement needs to be met. Thisuniform rule regarding contacts withrepresented persons achievesconsistency and high ethical standardswithout hampering federal lawenforcement activity.In formulating this uniform rule, theDepartment has not disregarded existingstate ethics rules, as a number ofcomments imply. As set forth in section77.12, this regulation is specificallyintended to fit within the structure ofDR 7-104 and Model Rule 4.2, as wellas analogous state and local districtcourt disciplinary rules. Both DR 7-104and Model Rule 4.2 provide thatcommunications that are "authorized by

law" are exempted from the generalprohibition ofthe rule and, according tothe Reporter for the commission thatdeveloped the Model Rules, Yale LawSchool ethics professor Geoffrey Hazard,this exception was drafted Wlth the"government lawyer" problem in mind.See Letter of Janu.:.ry 19, 1994 fromProfessor Geoffrey C. Hazard, Jr. to ChiefJustice E. Norman Veasey, at 2 ("I canstate from first-hand knowledge that this[authorized by law] qualification wasdrafted mindful of the governmentlawyer problem, among others. In myopinion it is within the authority of thefederal government, particularly theJustice Department, to promulgate suchregulations.") (This letter and allcomments are on file with the Office ofthe Associate Attorney General, UnitedStates Department of Justice). Asexplained later in this commentary, theDepartment's position is thatcommunications with representedpersons undertaken pursuant to thisduly promulgated regulation clearlyconstitute communications "authorizedby law." Therefore, in nedrly alljurisdictions, communications approved

under VIe Department's rules will beappropriate under existing ethical rulesas well.Furthermore, the content of this rulederives largely from DR 7-104 andModel Rule 4.2 and is wholly consistentwith the principles underlying theserules. This regulation grants greaterlatitude for lawyer communications

with a represented "person" during theinvestigative phase of law enforcementthan with a represented "party" afteradversarial proceedings havecommenced. This distinction appears inthe texts of DR 7-104 and Model Rule4.2, which prohibit onlycommunications with "a party" thelawyer knows to be represented byanother lawyer in the matter. Thisdistinction also accords with the greatweight of federal court interpretations ofthe state ethics rules. See Ryans, 903F.2d at 739 ("We are not convinced thatthe language of [the anti-contact rule]calls for its application to theinvestigative phase of law enforcement"because "the rule appears tocontemplate an adversarial relationshipbetween litigants, whether in a crimin&lor a civil setting"); United States v.Sutton, 801 F.2d 1346, 1365-66 (D.C.Cir. 1986) (anti-contact rule "was nevermeant to apply to [pre-indictment, noncustodial) situations such as this one");United States v. Dobbs, 711 F.2d 84, 86(8th Cir. 1983) (agent's "noncustodialinterview of [suspect) prior to theinitiation of judicial proceedings againstthe appellant did not constitute anethical breach"); United States v.Fitterer, 710 F.2d 1328, 1333 (8th Cir.)(anti-contact rule does not prohibitprosecutors from using undercoverinformants to communicate withrepresented persons prior toindictment), cert. denied, 464 U.S. 852(1983); United States v. 'amil, 707 F.2d638 (2d Cir. 1983) (proseculor's use ofundercover informant in preindictment, non-custodial setting tocommunicate with represented persondoes not violate DR 7-104); UnitedStates v. Vasquez, 675 F.2d 16, 17 (2dCir. 1982) (anti-contact rule was notintended to prohibit use of undercoverinformants prior to indictment); UnitedStates v. Kenny, 645 F.2d 1323, 1339(9th Cir.) ("the government's use of suchinvestigative techniques at this stage ofa criminal matter does not implicate thesorts of ethical problems addressed bythe Code"), cert. denied, 452 U.S. 920(1981); United States v. Weiss, 599 F.2d730,739-40 (5th Cir. 1979) (prosecutor'sinvestigatory communications upheldagainst challenge under anli-contactrule); United States v. Lemonakis, 485F.2d 941, 953-56 (D.C. Cir. 1973) (anti-

contact rule does not apply prior toindictment, and use of undercoverinformant did not violate rule in anyevent), cert. denied, 415 U.S. 989 (1974);In re U.S. Dept. ofJustice AntitrustInvestigation, 1992-2 Trade Cases (CCH)lj\ 69,933, at 68,469 (D. Minn. 1992)(Minnesota's Rule 4.2 held inapplicablebecause "[tlhe word 'parties' in Rule 4.2indicates the presence of a lawsuit" and"[t]he present controversy relates to aninvestigation, not a lawsuit"); UnitedStates v. Infelise, 773 F. Supp. 93, 95 n.3(N.D. Ill. 1991) (DR 7-104(A)(1) "speaksin terms of communications with a'party', suggesting that the ru le is to beapplied only when adversarialproceedings have been initiated");United States v. Western Electric Co.,1990-2 Trade Cases (CCH) en 69,148, at64,314 & n.6 (D.D.C. 1990); UnitedStates 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-

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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39915engaged in civil suits in which theUnited States is not acting under itspolice or regulatory powers (who are notcovered). One commenter proposeG.extending these rules to cover also thelatter activities of Department attorneys;however, because government attorneysengaged in other, ordinary civillitigation are not engaged in distinctlydifferent functions from privateattorneys involved in civil cases, theyare not brought under this regulation.Two organizations further criticizedthe Department for holding governmentattorneys to ethical standards no higherthan what the Constitution provides.The Department agrees that theconstitutional baseline does not providethe proper measure of governmentattorneys' ethical obligations. But thisregulation does not purport to equatethe two standards. On the contrary, theDepartment's final rule imposes a rangeof restrictions that go beyond those thatare constitutionally compelled. Forexample, the regulation prohibitsgovernment attorneys generally fromengaging in negotiations of certainspecified legal agreementswith anyrepresented individual without theconsent of that individual's counsel.even if that individual is not in custodyand not formally charged. Suchcommunications are not constitutionallyproscribed. See Brewer v. Williams, 430U.S. 387, 398 (1979); Miranda v.Arizona, 384 U.S. 436 (1966).Additionally, the Department plans toissue United States Attorneys' Manualprovisions that will place significantlimits on the ability of governmentattorneys to engage in noncustodialcommunicationswith a represented"target" of a federal criminal or civillaw enforcement investigation, eventhough narrowing an investigation tofocus on a particular suspect does nottrigger the suspect's right to counsel.See Hoffa v. United States, 385 U.S. 293(1966). Therefore, in constructing thesestandards to guide the ethical conductof its attorneys, the Department hasimposed ethical restrictions onDepartment attorneys that extendsignificantly beyond what theConstitution requires.B. The Constitutional and StatutoryAuthority for the Rule. 1. TheDepartment's Authority To Promulgatethe Rule. A number of commentersargued that the Attorney General lacksdelegated authority to promulgate thisregulation. Comments stressed that"[nlo act of Congress purports toauthorize the Department to adoptregulations to override state ethics rulesgoverning lawyers," and that theproposed regulation in fact is "contraryto. . . the expl icit mandate of

Congress" that every Departmentattorney must get a license from a Stateand maintain that license.Rules governing the conduct ofDepartment attorneys, or any otherofficials of the Executive Branch, maybe promulgated only pursuant toconstitutional or statutory authority.Congress's delegation of authority neednot be specific or explicit. ChryslerCorp. v. Brown, 441 U.S. 281,307-08(1979). The Department believes that itpossesses appropriate statutoryauthority to promulgate this regulationpursuant to two distinct sources: 5U.S.c. 301 ("commonly referred to asthe 'housekeeping statute,' " ChryslerCorp., 441 U.S. at 309 (citationomitted)), and title 28 of the UnitedStates Code, which in a variety ofprovisions auth(,rizes the AttorneyGeneral and the Department to enforcefederal law and to regulate the conductof Department attorneys.Section 301 of title 5, United StatesCode, authorizes the Attorney Generalto "prescribe regulations for thegovernment of [her] department," "theconduct of its employees," and "thedistribution and perfonnance of itsbusiness." 5 U.S.c. 301. The SupremeCourt has held that this provisionauthorizes the Attorney General to issueregulations with extra-departmentaleffect. See, e.g., Georgia v. UnitedStates, 411 U.S. 526, 536 (1973)(holding that section 301 provided theAttorney General with "amplelegislative authority" to issueregulations that established proceduraland substantive standards binding onstate and local governments); UnitedStates ex rel. Touhyv. Ragen, 340 U.S.462 (1951) (federal government attorneycould not be held in contempt forfollowing an Attorney Generalregulation promulgated pursuant to apredecessor to section 301).Title 28 ofthe United States Codegrants the Attorney General and theDepartment a variety of lawenforcement powers including thepower (through intennediary officials)to conduct grand jury proceedings orany other kind of civil or criminal legalproceeding; to conduct litigation, and to"secur[e] evidence" therefor; to detectand prosecute crimes; and to prosecute"civil actions, suits, and proceedings inwhich the United States is concerned."28 U.S.C. 515(a), 516, 533, 547; see 28U.S.c. 509,510. The Attorney General isalso authorized to "supervise alllitigation" to which the United States isa party and to direct United StatesAttorneys and other subordinateattorneys in the "discharge of theirrespective duties." 28 U.S.C. 519. Theseprovisions grant the Attorney General

extremely broad authority to supervisethe enforcement of federal law.In order for a Department regulationto have the force and effect of law, itmust rest on a reasonable constructionof t h statutes delegating the authorityto promulgate it and must not insubstance contradict any act ofCongress. See, e.g., NLRB v. UnitedFood and Commercial Workers Union,Local 23,484 U.S. 112, 123 (1987);Capital Cities Cable, Inc. v. Crisp, 467U.S. 691, 699-700 (1989). These lUlesrepresent the reasoned judgment of theAttorney General and of the Departmentabout the lawful authority of federallawyers effectively to investigate andprosecute crime:;.One individual and a number oforganizations, including the Conferenceof ChiefJustices, posited that theDepartment is acting outside the scopeof its congressionally delegatedauthority because this regulationassertedly contravenes the Departmentof Justice Appropriation AuthorizationAct of 1979, which requires allDepartment attorneys to be "dulylicensed and authorized to practice asan attorney under the laws of a State ,territory, or the District of Columbia."Pub. Law No. 96-132, 3(a), 93 Stat.1040,1044 (Nov. 30,1979), as carriedforward by Pub. Law No. 103-121. 107Stat. 1153,1163 (Oct. 27,1993)(reenacting provisions of Pub. Law No.96-132). These commenters suggestedthat when Congress requiredDepartment attorneys to be licensed bya state bar, Congress implied thatDepartment attorneys should be subjectto all the rules and regulations of stateauthorities, regardless of their impact onofficials carrying out federal lawenforcement. Therefore, this regulation,by shielding Department attorneys fromstate disciplinary proceedings forviolations of state rules interferingwitheffective federal law enforcement, isalleged to violate Congress's clear intentin enacting the Department'sappropriation statute.The Department believes that thesecomments mistake the purpose andeffect ofthe congressional reqUirementthat federal attorneys have statelicenses. That requirement, which issatisfied by admission to the state's barand maintenance of bar membership,simply serves to ensure that theprofessional qualifications of allDepartment lawyers have in fact beenexamined. No comment received by theDepartment demonstrates that Congressintended the requirement to have thefurther effect of interfering with theAttorney General's ability to ensureeffective federal law enforcement or ofcompelling federal attorneys to comply

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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39917Furthermore, under tr eintergovernmental immunity doctrine,states may not directly regulate orpunish federal officials for actsundertaken in their official capacities,or otherwise substantially interfere withthe 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 ABACode of Professional Responsibility onFederal Criminal Investigations, 4B Op.O.L.C. 576.601-02 (1980). "An officerof the United States cannot. in thedischarge of his duty. be governed andcontrolled by state laws, any furtherthan such laws have been adopted andsanctioned by the legislative authorityof the United States." Bank o f theUnited States v. Halstead. 23 U.S. (10Wheat.) 51, 63 (1825). Contacts coveredby this regulation fall within the scopeof federal attorneys' duties to carry outthe law enforcement activities of theUnited States. The application to thoseattorneys of state ethics laws prohibitingsuch conduct therefore would constituteinterference with the activities of thefederal government forbidden by theintergovernmental immunity doctrine.For the foregoing and other reasons,the Department believes that thisregulation effectively preempts stateethical rules regarding contacts withrepresented persons.

3. Th e Department's Authority toSupersede Federal District Court Rules.Most federal district courts haveadopted as local federal district courtrules one of the two sets ofABA rulesor a similar anti-contact rule of the statein which the district court sits. SeeRand v. Monsanto Co., 926 F.2d 596.601-603 (7th Cir. 1991). Such adoptiongi ves the state rules the force of federallaw. See United States v. Hvass, 35 5U.S. 570, 575 (1958). One individualand two organizations commented thatthis regulation, if promulgated. wouldabrogate the primary authority of federalcourts to regulate the conduct ofattorneys arising out of federal lawenforcement proceedings.The Department views this concern assignificant but essentially theoretical,because the regulation has been craftedso tha t it will not operate in a way thatputs it into conflict with local districtcourt rules. However, in response tothese comments. it should be noted thatthrough this regulation the Departmentdoes intend not only to preempt theapplication by state courts of state rulesrelating to contacts by attorneys for thegovernment. hut also to supersede theapplication by federal courts of the localfederal district court rules relating tocontacts by government attorneys in

civil and criminal law enforcementinvestigations and proceedings. See 71.12 and accompanying commentary.There are two reasons why thepromulgation and operation of thisregulation is unlikely to present theissue of abrogation of federal courtauthority identified by thesecommenters. The first is that theregulation adopts the line of analydsadopted by the great weight of authorityinterpreting local district court rulesgoverning contacts with representedpersons. See United States v. Ryans, 903F.2d 731, 739 (10th Cir.) (discussingcases), cert. denied, 498 U.S. 855 (1990).The Department has not sought in thisregulation to validate conduct thatwould otherwise be invalid under mostlocal district court rules.In addition. nearly all district courtsthat have adopted local rules governingcontacts with represented persons haveincorporated the "authorized by law"exception in the Model Rules or in thecorresponding state rule. See generallyRand. 926 F.2d at 601-603. Asexplained above. this regulationconstitutes "law" within the meaning ofany such exception. Thus. the conductthis regulation authorizes is for thatreason equally authorized by these localdistrict court rules.Thus, this regulation in practiceshould not present any tension betweenthe federal executive and judicialpowers. In response to the commenters'suggestion that any tension would haveto be resolved in favor of the judicialpower. however. the Departmentdisagrees. Were the issue to arise. itwould be properly considered, as aninitial matter. as a question of theproper exercise of delegated legislativeauthority. Congress. not the courts, hasthe primary power to prescribe rules forthe federal courts. See Palermo v.United States. 360 U.S. 343. 353 n. 11(1959); Sibbach v. Wilson fr Co . 31 2U.S. 1. 9-10 (1941). See generallyHanna v. Plumer. 380 U.S. 460, 472-73(1965). In the case of this regulation.Congress has delegated that authority bystatute to the Attorney General. Thisregulaticn therefore has no less legalforce than. for example, the FederalRules. which derive their ultimateauthority from legislation. See 28 U.S.c. 2071 et seq. Local district court rules,even those dealing with attorneydiscipline. may not displacelegislatively-authorized national rules ofprocedure. Rand. 926 F.2d at 600 (Rulesof Civil Procedure). Accord, Baylson v.Disciplinary Bd. o f Supreme Court o fPa . 975 F.2d 102.107 (3d Cir. 1992)(Rules of Criminal Procedure). A localrule inconsistent with a regulationlawfully issued under statutory

authority is, as a matter of law,inconsistent with the underlying statute,and must yield to Congress's paramountauthority as delegated to the departmentor agency issuing the regulation. Thus,the conclusion that the AttorneyGeneral has the statutory authority topromulgate the proposed regulationentails the fu ,ther coneI _'. ion that theregulation di.splaces inc"..3istent localfederal cou;t rules.Further:nore. the regulation has beencargfully drawn in such a way so thatonce a person has been brought beforea court. in '6eneral no substantivecommUI'i

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39918 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules an d Regulationsrules, as proposed, lacked enforcementmechanisms sufficient to deterprohibited communications. Thesecomments took two forms: (1) a generalsuggestion that the Department couldnot be trusted to police itself(or as, onecommenter ;mt it, it would be a case of"the fox maintain[ingJ .. . guard overthe hen-house"); and (2) a specificconcern that the restrictions to beplaced in the United Stales Attorneys'Manual would not in

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Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1 ~ 9 4 ! Rules an d Regulations 39919joint-stock company, union, trust,pension fund, unincorporatedorganization, state or local governmentor political subdivision thereof, or nonprofit organization. It does not , ofcourse, include groups of individuals"associated in fact" within the meaningof the racketeering statutes. See 18U.S.c. 1961(4;.Communications with organizationsand their employees are governedgenerally by section 77.10.g. "Person. "The term "person"

includes individuals and organizationsas defined in paragraph 77.2(0.h. "Undercover investigation." Underthis definit ion, the hallmark of an"undercover operation" is aninvestigation in which an individual"whose identity as an official of thegovernment or a person acting at thebehest thereof is concealed or isintended to be concealed." Thisdefinition is intended to be read broadlyto include every type of lawenforcement investigation in which theidentity ofa government employee, orthe fact that an individual is cooperatingwith the government, is concealed.Section 77.3: Represented Party;Represented Person

This section differentiates between arepresented "party" and a represented"person." This distinction is fullyconsistent with the language ofandprinciples underlying DR 7-104(a)(1)and Model Rule 4.2, which establishgeneral prohibitions against ex parlecontacts with a represented "party."Section 77.5 of this part generallyprohibits government attorneys frominitiating ex parte contacts withrepresented parties, but does notprohibit ex parte contacts withrepresented persons. (However, sections77.8 and 77.9 also prohibit certaincontacts with represented persons).An individual is considered to be a"represented party" under paragraph77.3(a) if: (1) the person is representedby counsel; (2) the representation iscurrent and concerns the subject matterin question; and (3) the person haseither been arrested or charged in afederal criminal case or is a defendantin a civil law enforcement proceedingconcerning the subject matter of therepresentation. If the person is currentlyrepresented in fact regarding the subjectmatter in question, but has not beencharged or arrested, that person isconsidered a "represented person."Thus. witnesses. suspects, and targets ofinvestigations who have not beenindicted or arrested, but are representedregarding the subject matter in question,are considl?red represented personsunder this rule.

Several commentel's argued that thissection's basic distinction betweenrepresented "persons" and represented"parties" runs counter to the policyconsiderations underlying DR 7104(A)(1) and Model Rule 4.2. However,as discussed in the "GeneralComments" section, this distinction isconsistent with the vast majority offederal court opinions interpreting DR7-104(A)(1) and Model Rule 4.2., aswel l as the text of those rules.Furthermore, this distinction isgrounded in logic and common sense,given the legitimate necessity forattorneys for the government to be ableto direct agents and cooperatingwitnesses to contact representedpersons during undercoverinvestigations.One organization commented thatprosecutors will hold back on filingformal charges in order to maximizetheir ability to communicate withrepresented "persons." The Departmentdoes not agree that prosecutors arelikely to engage in this kind ofsystematic manipulation. The capacityto do so exists under the SixthAmendment (given that the SixthAmendment right to counsel attachesonly once formal charges are filed, seeBrewerv. WjJ]iams, 430 U.S. 387,398(1979)), but there is no evidence ofsystematic prosecutorial abuse of thecharging process under the SixthAmendment. Furthermore, theDepartment intends to add a newprovision to the United StatesAttorneys' Manual that will prohibit aDepartment attorney fromcommunicating overtly with a "target"of an investigation before he or she isformally charged or named as a civildefendant, except in specificallyenumerated circumstances.Section 77.4: Constitutional and OtherLimitations.This section makes clear that thisregulation does not purport to authorizeany communication prohibited by theConstitution or any federal statute orFederal Rule of Criminal or CivilProcedure. Although these rules do not

supersede the Federal Rules of CivilProcedure and the Federal Rules ofCriminal Procedure, this limitation doesnot extend to other rules regardingprocedure in federal courts. Thus, rulesofprocedure adopted by individualcourts as local rules. many of whichincorporate state bar rules, are notincluded in this limitation; and, in fact.this regulation is explicitly intended tosupersede local federal court rulesregarding ex parte contacts by attorneysfor the government. See 77.12 andaccompanying commentary.

No specific comments were receivedregarding this section, and it has notbeen changed.Section 77.5: General Rulefor Civil andCriminal Enforcement; RepresentedParties

This section closely tracks thelanguage ofDR 7-104(A)(1) and ModelRule 4.2 and applies similarprohibitions to attorneys for thegovernment. The section prohibits anattorney for the government fromcommunicating with a representedparty, as defined in section 77.3, aboutthe subject matter of the representationwithout the consent of that individual'sattorney. As with DR 7-104(A)(1) andModel Rule 4.2, the prohibition appliesonly if the attorney for the governmentknows that the represented party is, infact, represented by counsel. Therefore,communications by an attorney for thegovernment with a represented partywill not violate this rule if the attorneyfor the government is unaware of thefact of representation.

This section also prohibits an attorneyfor the government from causinganother individual to communicate witha represented party. Accordingly, thisrule proscribes an attorney fromdirecting a government investigator todo what the attorney himself or herselfis prohibited from doing. Conversely, agovernment attorney will not bepersonally responsible for the actions ofagents in communicating withrepresented 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 thisprovision is violated (and thus, a basisfor departmental discipline exists) whenan inappropriate communication takesplace, regardless ofwhether or not thecommunication results in eliciting aninculpatory statement or is otherwiseprejudicial to the represented party.No specific comments were receivedregarding this section, and it has notbeen changed.Section 77.6: Exceptions; RepresentedParties

This section describes thecircumstances under which Departmentattorneys may communicate, or causeothers to communicate, with arepresented party whom the Departmentattorney knows is representedconcerning the subject matter of therepresentation, without first obtainingthe consent of the represented party'scounsel.Paragraph (a): Determination ifrepresentation exists.

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Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 I Rules and Regulations 39921several steps be taken before

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39922 Federal Register / Vol. 59. No. 149 / Thursday. August 4. 1994 / Rules and Regulationsmade "at the t ime ofthe arrest of therepresented party before he or she ispresented to a judicial officer withrespect to that arrest . . . . " TheDepartment has decided againstadopting the proposed additionallanguage, because it would unadvisedlyextend this exception beyond its properand intended narrow limits. Thisexception to the general rule againstpost-arrest communications is designedto preserve the ability ofgovernmentattorneys to interview individualsimmediately (i.e., within hours)following arrest as an effective andimportant law enforcement tool. See,e.g., 18 U.S.c. 3501(c). It is not intendedto allow government attorneys toattempt to initiate communications withan arrested person any time before theperson is presented to a judicial officer,which can extend days beyond the"time of arrest." The Departmentbelieves that such an extension ofthislimited exception could put excessivepressure on clients and unduly intrudeupon the attorney-client relationship.A United States Attorney's Officecommented that proposed paragraph(d), under which the represented partymust be advised ofand V>'aive "his orher constitutional rights," could beconstrued to require the representedparty to be explicitly told that he or shehas a right to his or her attorney, and notjust that he or she has a right to anattorney (as required by Miranda v.Arizona, 384 U.S. 436 (1966)). Thisparagraph is intended to applywhenever an arrested person is read hisor her Miranda rights and waives thoserights; it is not intended to require therepresented party to be apprised ofhisright to counsel in any different or morespecific terms than Miranda and itsprogeny require. To make clear that theusual Miranda warnings and wai'Jersuffice for purposes of this section,paragraph 77.6(d) has been amended inthe final rule to read as follows: "Thecommunication is made at the time ofthe arrest of the represented party andhe or she is advised of his or her rightsunder Miranda v. Arizona, 384 U.S. 436(1966), and voluntarily and knowinglywaives them."Paragraph (e): Investigation ofadditional, different, or ongoing crimesor civil violations.The Sixth Amendment right tocounsel is "offense-specific." McNeil v.Wisconsin, 111 S. Ct. 2204, 2207 (1991).Thus, a defendant whose SixthAmendment rights have attached as toone offense remains subject toquestioning, whether direct or covert.regarding uncharged crimes. Id.; Mainev. Moulton, 474 U.S. 159,180 n.16(1985): United States v. Mitcheltree, 940

F.2d 1329, 1342 (10th Cir. 1991); UnitedStates v. Terzado-Madruga, 897 F.2d1099.1111-12 (11th Cir. 1990); UnitedStates v. Chu, 779 F.2d 356, 368 (7thCir. 1985); United States v. Grego. 724F.2d 701, 703 (8th Cir. 1984). Theproposed rule employs an analogousapproach. permitting ex parte contactswith a represented party if the contactsinvolve the investigation of offenses asto which the represented party has beenneither arrested nor charged in acriminal or civil law enforcementproceeding. The Department believesthis approach is wholly consistent withDR 7-104 and Model Rule 4.2 and thecases interpreting those rules.Accordingly, this section providesthat communications may be made inthe course of investigations ofadditional, different, or ongoingcriminal or unlawful activity, eventhough the individual is represented bycounsel with respect to conduct forwhich he or she has already beenarrested or charged. Such additionalcriminal or unlawful conduct istypically one of three varieties: (1)conduct that is separate from theoriginal wrongful ccnduct; (2) crimes orunlawful conduct that are intended toimpede the administration of justice orthe trial of the charged crime, such assubornation of perjury. obstruction ofjustice, jury tampering, or murder,assault. or intimidation of witnesses;and (3) conduct that is a continuation ofthe charged crime. such as a conspiracyor a scheme to defraud that continuespast the time of indictment. The new oradditional criminal or wrongful activitymay have occurred in the past or maybe ongoing at the time oftheinvestigation.One organization objected to thissection's coverage of criminal orwrongful activity that has already Deencompleted at the time of thecommunication, as distinct from activitythat is ongoing. However, theDepartment sees no basis in the policiesunderlying the Sixth Amendment andthe Model Rules for basing the proprietyof investigation into additional ordifferent uncharged crimes on whethersuch activity is complete or ongoing.One individual expressed concernthat Department attorneys would exploitthis exception by making gratuitousallusions to other offenses in the courseof an otherwise illicit contact with arepresented party. As noted above,prevailing case law interpreting theSixth Amendment and theModel Rulespermit an attorney to question adefendant as to uncharged offenses, andthere is no evidence of systemicprosecutorial abuse of this type ofinterrogation. Accordingly, there is no

reason to suspect that prosecutorialpractice under these rules will bedifferent.Paragraph (f): Threat to safetyor life.The Supreme Court has recognizedthat. in certain limittld situations, theneed to guard against threats to publicsafety can justify noncompliance with

otherwise applicable constitutionalsafeguards. See Warden v. Hayden, 387U.S. 294, 298-99 (1967) (warrantlesssearch permissible when delay wouldendanger lives of officers and citizens);New York v. Quarles, 467 U.S. 649,657(1984) ("the need for answers toquestions in a situation posing a threatto the public safety outweighs the needfor the {Miranda] prophylactic ruleprotecting the Fifth Amendment'sprivilege against self-incrimination").This paragraph recognizes an analogousexception to the general prohibitionagainst communications withrepresented parties in the absence oftheir counsel. It is the Department'sintention that this exception be invokedonly in rare circumstances and only forthe purpose of protecting human life orsafety.The exception has three requirements:(1) the attorney for the government musthave a good faith beliefthat the safetyor life of any person is threatened; (2)the purpose of the communication mustbe to obtain information to protectagainst the risk of injury or death; and(3) the attorney for the governmentmust. in good faith. believe that thecommunication is reasonably necessaryto protect against such risk. Theserequirements are imposed to ensure thatthe exception is invoked only to protecthuman life or safety, and not as aroutine matter in violent crimeprosecutions. For example, the fact thatpotentially dangerous firearms have notbeen recovered would not in and ofitself be sufficient under ordinarycircumstances to constitute a threat tosafety under this exception.Furthermore, the communication mustbe for the purpose of protecting humanlife or safety, and may not be designedto elicit testimonial evidence. However,information thus obtained may be usedfor any purpose consistent withconstitutional limitations.No specific comments were receivedregarding this paragraph, and it has notbeen changed.Section 77.7: Represented Persons:InvestigationsAs noted in the discussion of section77.3, individuals and organizations whoare neither defendants nor arrestees arenot "parties" within the meaning of thisrule, and the general prohibition on ex

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Federal Register / Vol. 59, No. 14 9 / Thursday, Augus t 4, 1994 / Rules an d Regulations 39923parte contacts therefore does not apply.This section makes clear that attorneysfor the government are authorized tocommunicate. directly or indirectly,with a represented person unless thecontact is prohibited by some otherprovision of federal law. Thesecommunications are subject, however,to the restrictions set forth in sections77.8 and 77.9 regarding certaincategories of negotiations and respectfor attorney-client relationships.Two individuals commented that thissection. even as limited by sections 77.8and 77.9. allows a broader range ofcontact with persons underinvestigation than is necessary to meetthe Department's legitimateinvestigative needs. These individualsagreed that the government must be freeto conrluct undercover operations andinvestigations. even when fieldinvestigators coming into contact withpotential criminal or civil respondentsare directed by government attorneys.They argued. however, that overtcommunications with persons duringthe investigative stage are not similarlyjustified.The Department agrees that overtcummunications between a governmentattorney and a represented personduring the investigative stage raisedifferent considerations from covertcommunications and should be subjectto gre,der restrictions. For this reason.the Department plans to make revisionsto the United States Attorneys' Manualproviding that government attorneysshould engage in overt communicationsonly after carefully considering whetherthe communication is moreappropriately handled by others. andshould generally not communicateovertlv, or cause another tocomm'unicate overtly, with a target of afederal criminal or civil investigation,who is known by the Departmentattorney to be represented by counsel.concerning the subject matter of therepresentation. Nevertheless. theDepartment believes that overt contactsby federal attorneys and agents withwitnesses and subjects of investigationsare often necessary for effective lawenforcement and hence should bepermitted.Section 77.8: Represented Persons andRepresented Parties; Plea Negotiationsand Other Legal Agreements

This section prohibits governmentattorneys from initiating or engaging innegotiations of certain specified legalagreements with any individual whomthe government attorney knows isrepresented by counsel. without thecounsel's consent. Even when theregulation otherwise permits

substantive discussions with arepresented party or represented person.it ordinarily would be improper for agovernment attorney to initiate ornegotiate a plea agreement. seltlement,immunity agreement or any otherdisposition of a claim or charge withoutthe consent ofthe individual's counsel.The one exception to this prohibitionoccurs when the communication isinitiated by the represented person orrepresented party and the proceduralsafeguards provided for in paragraph77.6(c) are satisfied.

The Department believes that thissection is important for the preservationof the attorney-client relationship. Oneof the primary purposes of DR 7-104and Model Rule 4.2 is to protect anindividual represented by counsel fromoverreaching by an attorney for anadversary. The Department believes therisk and the consequences of suchoverreaching are at their greatest duringnegotiations over plea agreements.seltlements. and other key legalagreements. The training, experience.and knowledge of the law possessed byan attorney is particularly valuable insuch situations.

The prohibition contained in thissection includes all negotiations of theterms of a particular plea agreement,settlement agreement, or otheragreement covered by the section.However, this section does not prohibitan attorney for the government fromresponding to questions regarding thenature of such agreements, potentialcharges. potential penalties, or athersubjects related to such agreementsduring an otherwise permissiblediscussion. Nevertheless. an attorney forthe government should take care in suchsituations not to go beyond providinginformation on these and similarsubjects and should generally refer therepresented person to his or her counselfor further discussion of these issues.The government attorney should alsomake it clear that he or she will notnegotiate any agreement with respect tothe disposition of criminal charges, civilclaims or potential charges. or immunityagreements without the consent ofcounsel.

;'110 specific comments were receivedregarding this section, and it has notbeen changed.Section 77.9: Represented Persons andRepresented Parties; Respect forAttorney-Client Relationships

When an attorney for the governmentcommunicates with a represented partypursuant to one or more of theexceptions listed in section 77.6. or witha represented person pursuant to section

77.7, the communication is neverthelesssubject to the restrictions ofthis section.Paragraph (a): Deference to AttorneyClient RelationshipFederal courts have recognized that itis improper for an attorney for thegovernment to disparage counsel for the

represented party or otherwise to seek todisrupt the rela.onship between thatparty and his attorney. See. e.g .. UnitedStates v. Morrison, 449 U.S. 361, 362,367 (1981); United States v. Weiss, 599F.2d 730. 740 (5th Cir. 1979); id. at 74041 (Godbold, J., sprycially concurring).This paragraph codifies those basicprinciples by prohibitingcommunications that: (1) attempt toelicit information regarding lawfuldefense strategies; (2) disparage therepresented party's counsel; or (3)otherwise improperly seek to disruptthe attorney-client relationship. Theseprohibitions apply in every phase ofcriminal and civil enforcementinvestigations and proceedings.However, the paragraph alsoaccommodates an important exceptionto this prohibition. Courts have heldthat a government attorney may no tpermit legal proceedings to go forwardif he or she is aware of a conflict ofinterest between a represented party andhis or her lawyer. See United States v.lorizzo. 786 F.2d 52, 59 (2d Cir. 1986).Under this circumstance, the attorneyfor the government ordinarily shouldmove to disqualify the lawyer involved,if legal proceedings have alreadycommenced. I f i t is not feasible to movefor disqualification or otherwisechallenge the representation, thisparagraph allows an attorney for thegovernment to communicate with therepresented individual for the limitedpurpose of apprising the representedindividual of the perceived conflict.However, any substantive discllssion ofthe subject matter of the representationis permissible only insofar as it isauthorized by some other provision ofthis rule.In order to ensure that this provisionis used only in rare circumstances. therule requires prior authorization forsuch communications from the AttorneyGeneral, the Deputy Attorney General,the Associate Attorney General, anAssistant Attorney General or a UnitedStates Attornev. The authorizationshould be in ~ r i t i n g i f at all possible.Furthermore. before providing approval,the authorizing officer must find: (1) asubsiantiallikelihoodof a conflict; and(2) that it is not feasible to obtain a courtorder on the matter.One organization commented thatjudicial approval, or at least approval bya designated Assistant Attorney Genera-l

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39924 Federal Register / Vol. 59. No. 149 / Thursday. August 4, 1994 / Rules an d Regulations(rather than by a United StatesAttorney). should be required before anattorney for the goverrunent may apprisea represented party or person ofanyperceived conflict of interest. Anotherorganization and an individualcommented that attorneys for thegovernment should never be allowed toinform a represented individual of aperceived conflict of interest, and,instead. should be required to move todisqualify counsel and leave it to thecourt to adjudicate any conflicts ofinterest. The Department believes thatthere will be circumstances in which itwill not be feasible to obtain a judicialorder challenging the representation(especially prior to the filing of charges).or when the exigencies of the situationmay make it impracticable to obtainprior authorization of a judicial officeror an Assistant Attorney General. Insuch circumstances, and when a highlevel Departrr.ent official, such as aUnited States Attorney. determines thatthere is a significant likelihood of aconflict of interest between arepresented individual and his or herattorney, it is better that the representedperson or party be apprised of thepotential conflict of interest than be leftuninformed. Accordingly. theDepartment has decided to leave thisparagraph unchanged in the final rule.Paragraph (b): Attorney-Client MeetingsThe attendance ofan undercoveragent or e cooperating witness at lawfulmeetings of an individual and his or herattorneys is ordinarily an improper

intrusion into the attorney-clientrelationship. The courts haverecognized, however, that suchattendance occasionally will be requiredwhen the operative is invited toparticipate and his or her refusal to doso would effectively reveal his or herconnection 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); UnitedStates v. Mastroianni, 749 F.2d 900, 906(1st Cir. 1984). As the First Circuit hasnoted, a contrary rule "would providethe defense with a quick and easy alarmsystem to detect the presence ofanyinformants, simply by inviting allknown associates of defendants to asupposed defense strategy meeting."Mastroianni. 749 F.2d at 906.Attendance at such meetings,however, intrudes into the attorneyclient relationship and impairs the rightof the defendant to a fair trial.Accordingly, this section provides thatundercover agents or cooperatingwitnesses may participate in suchmeetings, but only when requested to doso by the defense and when reasonably

necessary to protect their safety or lifeor the confidentiality of an undercoveroperation. See Weatherford. 429 U.S. at557.Howevf r, even when an undercoveroperativr;'s attendance at such a lawfulmeeting is authorized to protect his orher cover and safety, any informationacquired regarding lawful defensestrategy or trial preparation may not becommunicated to government attorneysor otherwise used to the substantialdetriment of the represented party. SeeWeatherford. 429 U.S. at 558; Ginsberg.758 F.2d at 833; Mastroianni. 749 F.2dat 906. As a safeguard, this rule providesthat such information should not becommunica''!d to the attorneys for thegoverrunent or law enforcement agentswho are participating in the trial of thepending criminal charges.When there is reasonable cause tobelieve that the purpose ofthe meetingis not the lawful defense of theunderlying charges, but the commissionof a new or additional crime (such asbribery of a witness or subordination ofperjury). attendance by informants orundercover agents at attorney-clientmeetings is permissible pursuant toparagraph 77.6(e). The belief. however,must be based on reasonable cause, notmere suspicion or conjecture. SeeMastroianni. 749 F.2d at 906.Furthermore. the prohibition againstcommunication of lawful defensestrategy to the prosecution should beobserved if, in fact, such strategy isimparted to the informant or agent.Government attorneys should giveserious consideration to the extremesensitivity of permitting agent andinformant attendance at defensemeetings. Agents and informants shouldbe instructed to avoid participating insuch meetings, and to minimize theirparticipation when attendance isrequired, if it is possible to do sowithout arousing suspicion. Agents orwitnesses who attend defense meetingsshould also be instructed to make everyattempt to avoid taking any role in theshaping of defense strategy or trialpreparations. Additionally, agents andinformants should be instructed toavoid imparting lawful defense strategyor trial preparation information toattorneys for the government or to lawenforcement agents who are directlyparticipating in the ongoinginvestigation or in the prosecution ofpending criminal charges.Finally, this restriction applies only tolaw enforcement officials andcooperating witnesseswho are acting as"agents for the goverrunent" at the timeof the communication. Ifone of severalco-defendants who attended anattorney-client defense strategy meeting

later testifies for the government at trial,no violation will have occurred as longas the co-defendant was not agoverrunent agent at the t ime of themeeting. United States v. Brugman, 655F.2d 540, 545-46 (4th Cir. 1981).A Department component commentedthat an undercover agent's attendance ata meeting at which legal strategy is notdiscussed does not intrude on theattorney-client relationship; therefore,the component p r ( > ~ ( ] s e d limiting thisparagraph's prohibition againstgoverrunent agents participating in anattorney-client meeting orcommunication to situations wherethere is a "reasonable basis" to believethat the meeting or communication willconcern legal advice or strategy. TheDepartment believes that it is unwiseand unworkable to encouragegovernment attorneys and undercoveragents to guess whether legal issues willcome up in an attorney-client meetingor communication. It would also bedisruptive of the attorney-clientrelationship for government attorneysand undercover agents to gather theinformation that might make such adetermination even remotely reliable.Therefore. this paragraph has not beenchanged.Section 77.10: Organizations andEmployeesThis section addresses the difficultissue ofwhen a communicationwith anemployee or member ofa representedorganization should be considered acommunication with the organization

itself. Important interests depend onthis determination. On the one hand,organizations should not be shieldedfrom effective criminal or civil lawenforcement prosecution simply byretaining counsel. It is not uncommonfor federal prosecutors to encounterattorneys who assert that they representevery individual in a large corporationor organization. If such attorneys wereable to prevent government investigatorsfrom gaining informal access to anyemployee of the organization bywithholding consent, informationrelevant to claims against theorganization might never come to lightbecause such information is often in theexclusive possession of the organizationand its employees. See, e.g., Suggs v.Capital Cities/ABC Inc., 54 Empl. Prac.Dec. (CCH) 'lI40,195 at 63,910 (S.D.N.Y.Apr. 24, 1990). On the other hand.organizations are entitled to theeffective assistance of counsel. and therelationship between an organizationand its counsel deserves respect.The Department believes that thissection. and particularly the definitionof "controlling individual" in paragraph

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Federal Register / Vol. 59, No. 149 / Thursday. August 4. 1994 / Rules and Regulations 39925(a) of this section. strikes an appropriatebalance, one that ensures governmentattorneys the ability to enforce federallew, whilt: preserving the opportunityfor corporations and other organizationsto secure effective assistance of counsel.Paragraph (a): Communications withcurrent employees; organizationalrepresentation.

This paragraph states that acommunication with a currentemployee of an organizational party orperson should be t reated as acommunication with the organizationfor purposes of this part only i f theemployee is a "controlling individual."If a communication with a currentemployee is properly characterizedunder this regulation as acommunication with a representedorganization (that is, if thecommunication is with a controllingindividual), then that communication issubject generally to the same limitationsthat would apply if the communicationwere with a represented person orrepresented party.In accord with the basic structure ofthis regulation, which distinguishesbetween represented parties andrepresented persons, this paragrapheffectively provides that when anorganization is a represented party, anattorney for the government shall notcommunicate. or cause another tocommunicate, with any controllingindividual of the organization withoutthe consent of the organization'sattorney, subject to the exceptionsenumerated in 77.6. In contrast, whenan organization qualifies as arepresented person, an attorney for thegovernment may communicate, or causeanother to communicate. with anycontrolling individual, provided thecommunication does not violate theprovisions of 17.8 or 77.9,

The definition of "controllingindividual" is intended to encompassthose individuals who typically are partof the organization's contrrl group. Acontrolling individual under thisdefinition must: (1) be a currentemployee or member of theorganization; (2) hold a high-levelposition with the organization; (3)participate "as a decision maker in thedetermination of the organization's legalposition in the proceeding orinvestigation of the subject matter;" and(4) be known by the government to beengaged in such activities. Thisdefinition attempts to identify thoselimited number of individuals affiliatedwith the organization who actually areinvolved in determining theorganization's position with regard tothe legal proceeding or investigation.

One individual and one organizationquestioned limiting the class ofemployees who should be considered"controlling individuals" for purposesof this subsection to those whoparticipate in framing the organization'slegal position i n the matter. They arguedthat the proposed "controllingindividual" test authorizes contactswith employees who, whi le notdirecting the organization's counsel.nonetheless have extensive authority toact on behalf of the organization. ThelJnderlying concern of these commentsappears to be that this paragraph. asproposed, authorizes contacts withmany employees who are likely topossess information relevant to claimsasserted against the corporation andwho have the capacity to makestatements that a court wil l deemadmissible at trial as evidentiaryadmissions against the corporation. Thisis certainly true. However. theDepartment believes that its anti-contactrule should not be designed with thegoal of protecting corporations fromdisclosure of prejudicial facts. See. e.g.,Action Air Freight v. Pilot Air Freight.769 F. Supp. 899, 903 (KD. Pa. 1991)(anti-contact rule "should notnecessarily chill the flow of harmfulinformation"); Hanntz v. Shiley, Inc .766 F. Supp. 258, 267 (D. N.J. 1991)("the poliCies of Rule 4.2 do not justifya wholesale restriction on discovery offactual information. damaging or not").Anti-contact rules such as DR 7-104and Model Rule 4.2 are intended toprotect the attorney-client relationshipfrom unnecessary interference and toprotect represented parties fromoverreaching by opposing counsel.Damage to the attorney-clientrelationship inheres particularly incommunications with high-levelcorporate employees who have contactwith the corporation's attorneys in thecourse of making ultimate decisionsregarding choice of counsel.implementing counsel's advice, anddetermining settlement and otherlitigation strategies. Therefore,communications with those high-levelindividuals affiliated with or employedby an organization who are responsiblefor emplOYing and directing theorganization's counsel and fordetermining legal positions taken by theorganization are the type ofcommunications prohibited by DR 7104.Accordingly, this paragraph defines"controlling individual" consistentlywith the principles underlying thedisciplinary rules on ex parte contacts.The Department also believes that thealternative approaches urged bycommenters would impose

unacceptable constraints on federal lawenforcement. Therefore. this paragraphhas not been changed.Paragraph (b): Communications withformer employees; organizationalrepresentation.This paragraph authorizescommunications with former employeesof represented organizations. Becauseformer employees do no t direct theaffairs of the organization and thereforecannot be considered members of the"control group" or any other controllingentity of an organization.communications with them are notconsidered communications with theorganization for purposes of the rule.This reasoning is consistent with theconclusion of the majority of federalcourts that have held that DR 7104(A)(1) does not bar communicationswith former employees of a representedcorporate 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); ShearsonLehman 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.O. Tenn. 1991);Dubois v. Gradco Systems, Inc., 136F.R.D, 341, 345 n.1 (D. Conn. 1991);Polycast Technology COip, v. Uniroyal,Inc., 129 F.R.D. 621, 628 (S.D.N.Y.1990). See also ABA Comm. on Ethicsand Professional Responsibility, FormalOp. 359 (1991) ("Accordingly. it is theopinion of the Committee that a lawyerrepresenting a client in a matter adverseto a corporate party that is representedby another lawyer may, withoutviolating Model Rule 4.2. communicateabout the subject of the representationwith an unrepresented former employeeofthe corporate party without theconsent of the corporation's lawyer.").But see PPG Industries. Inc. v. BASFCorp . 134 F.R.D. 118.121 (W.O. Pa.1990); Public Servo Elec. &- Gas V.Associated Elec. &- Gas, 745 F. Supp.1037,1042 (D.N.J. 1990).No specific comments were receivedregarding this paragraph, and it has notbeen changed.

Paragraph (c): Communications WithFormer or Current Employees:Individual RepresentationThis paragraph provides that i f aformer or current employee or a memberofan organization retains h is o r he r owncounsel, the government shall providethe same protection to him or he r thatwould be provided under this part toany other represented person orrepresented party. Communicationswith that individual are subject to thelimitations set forth in this part.Although this paragraph provides the

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39926 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulationsgeneral rule for such communications,paragraph (d) addresses the specificsituation in which a controllingindividual of a represented organizationretains separate counsel.This paragraph also provides that thegovernment will not accept, forpurposes of this rule, blanket claims bycounsel that he or she represents all ora large number of employees of theorganization. It is important to note thatthis provision is only relevant when theattorney for the government would beprohibited by some other provision ofthis regulation from contacting anindividual falling under the broadclaims of representation under question.For example, an attorney for thegovernment may contact a low-levelemployee of a corporation, withoutconsent of that employee's counselorIhe corporation's counsel, regarding amatter for which the corporation hasalready been indicted as part ofanu n d e r ~ o v e r or overt factualinvestigation. if Ihal individual has notbeen arrested or named as a defendantin a related criminal or civil lawenforcement proceeding. Therefore, thefact that an attorney has stated that heor she represents that individual willhave no bearing on whether thecommunication is proper.However, i f a particularcommunication with an individualemployee included in such a claim ofrepresentation would be improperunder these rules if he or she were infact represented by counsel (forexample, communications to negotiate aplea agreement), then this paragraphprovides that a government attorneymust first inquire whether the employeeis in fact represented before undertakingsubstantive communications with theemployee. As part of this inquiry, thegovernment attorney is not required todisclose to the employee the fact thatcounsel has asserted that he or sherepresents the employee. I f theemployee indicates that he or she is notrepresented by counsel, it is proper forthe government attorney to treat theemployee as unrepresented. If theemployee indicates that he or she isrepresented hy counsel with regard tothe relevant subject matter. the attorneyfor the government shall treat thatemployee as a represented person orrepresented t rty, "nd any furthercommunicationswith that individualshall be governed by this regulation.No specific comments were receivedregarding this paragraph. and it has notbeen changed.Paragraph {d}: Communications withseparately represented controllingindividuals.

This paragraph applies only when acontrolling individual of a representedorganizational party has retainedseparate counsei. In such circumstances.a government attorney may notcommunicate with the controllingilldividual without the consent ofthatindividual's separate counsel unless thecommunication satisfies one of theexceptions contained in 77.6 or 77.9of this part. The paragraph also allowssuch communications if