April/May 1999

 

By Edward J. Cleary

Suggested links:

Website of Minnesota's Lawyers Professional Responsibility Board

Richard Thornburgh did not make a huge impact in the legal world during his relatively short term as attorney general during the Bush administration. He did, however, leave a lasting impact on an ongoing ethical debate by way of a memorandum he authored in 1989. The "Thornburgh Memorandum" informed government lawyers that they were allowed, under certain circumstances, to contact individuals they knew to be represented by counsel without first notifying the attorneys for the contacted parties of their intentions.

Rule 4.2 of the Minnesota Rules of Professional Conduct, states as follows:

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. A party who is a lawyer may communicate directly with another party unless expressly instructed to avoid communication by the lawyer for the other party, or unless the other party manifests a desire to communicate only through counsel.1

Unauthorized contact with represented parties violates the ethics provisions of all 50 states. Thornburgh relied on the supremacy clause of the Constitution for his argument that federal prosecutors were exempt from any discipline that might be imposed by state authorities for such conduct.2 In justification for such an interpretation, he noted the increasing complexity of federal investigations and the federal prosecutors' need to make contact with witnesses at an early stage. Others noted that many federal investigations are conducted in a multi-state area, resulting in the application of different sets of professional responsibility rules to alleged misconduct on the part of government attorneys.

Criticism of the "Thornburgh Memorandum" was immediate and vocal. The defense bar argued that such a position both undermined the attorney/client relationship and resulted in prosecutors being subject to a more lenient standard than their counterparts who would be hemmed-in by restrictive state professional rules.

Edward J. Cleary is director of the Office of Lawyers Professional Respnsibility. He has practiced both privately and as a public defender for 20 years and is president of the Ramsey County Bar Assocation. His book, Beyond the Buring Cross, won a national award in 1996.

"government lawyers . . . and their private bar counterparts should monitor the outcome of this battle."

Nevertheless, a position that had originated within a Republican administration received bipartisan support when Attorney General Janet Reno adopted a revised but similar rule in 1994, thereby transforming the Thornburgh Memorandum into the "Reno Regulation." 28 C.F.R. §77.1.3

Since then the opposition to this Department of Justice policy has grown to include the chief justices of the state supreme courts and at least one U.S. Circuit Court of Appeals. The chief justices unanimously affirmed that regulation of the legal profession has always been a state function and cannot "be overridden by a simple memo from the director of a federal agency."4 The chief justices seemed to take issue primarily with the jurisdictional issue raised as opposed to the substantive content of the Reno Regulation. Consequently, the Conference of Chief Justices proposed amendments to ABA Model Rule 4.2 that "would permit government lawyers engaged in law enforcement to contact represented parties to the same extent as permitted in Attorney General Reno's 1994 regulations." In return, the Department of Justice would lose "its claim to autonomy" in states where this amended rule is adopted, acquiescing to state jurisdiction over enforcement of ethical rules.5

This willingness by the Department of Justice to engage in discussions with state supreme court justices was not immediately apparent; only after the 8th Circuit Court of Appeals struck down the Reno Regulation in January 1998, holding that the Justice Department lacked the statutory authority to promulgate the rule, were efforts made to reach a compromise.6

Now that the focus has returned to the language of Rule 4.2, the American Bar Association, in apparent disagreement with the Conference of Chief Justices, has proposed modifications to the rule that would be more acceptable to the criminal defense bar and corporate counsel, who oppose the Justice Department position.

Realizing a hot issue when it saw one, Congress jumped into the fray in October of 1998, passing legislation (that would not take effect for six months, leaving time for arguing, lobbying and repeal) entitled "The Citizens Protection Act of 1998" (The McDade Amendment). This legislation seeks to end the debate by making federal government lawyers subject to the laws and rules of individual states. (28 U.S.C. §530(b).)7

Not to be outdone, Sen. Orrin Hatch introduced a competing proposal in January 1999, entitled the "Federal Prosecutor Ethics Act" (S. 250), which would abort the McDade Amendment, substituting a "Commission on Federal Prosecutorial Conduct" that would enforce nine "Federal Rules of Professional Conduct."8

While resembling a chess match inspired by a turf war, the debate over 4.2 involves underlying issues that are very serious. The MSBA Rules of Professional Conduct Committee has a subcommittee on Rule 4.2 9 that has identified a number of the issues at stake. Such issues include:

(a) Identifying the client within the organizational context so that government contacts with employees of an organization do not undermine the attorney-client relationship (while perhaps also addressing the fear that the government is building civil cases on discovery obtained as a result of unmonitored criminal investigations);

(b) Clarifying when, if ever, a government lawyer may make contact with a represented target during an undercover investigation without notice to counsel;

(c) Considering the impact of revisions to 4.2 on government lawyers involved in civil enforcement cases;

(d) Taking into account that any changes to 4.2 will impact state government lawyers as well as their federal counterparts.

Whatever happens with the Reno Regulation, the McDade Amendment or the Hatch legislation, the debate will go on. While opposing sides debate issues of federalism, criminal justice and equity, government lawyers -- both federal and state -- and their private bar counterparts should monitor the outcome of this battle. In the final analysis, we should be preventing (and punishing when necessary) any attempt to discover information that is properly subject to the attorney/client privilege. In our country "the baseline system of attorney regulation is state-level control."10 The Rules of Professional Conduct that have developed in the state of Minnesota have evolved, as in almost every state, from the model rules put forth by the ABA. Those attorneys practicing in federal court have been subject to the same rules as attorneys practicing in state court. As one publication has observed:

Federal courts have fewer disciplinary enforcement resources than do the states. Federal attorney discipline determinations thus tend to follow, and often replicate, discipline that a state has imposed first after conducting its own investigation.11

The result is that independent investigations of federal government lawyers have seldom been undertaken by federal authorities, leaving a vacuum as it pertains to 4.2.

Whether it's the independent counsel in Washington, a local U.S. attorney or assistant attorney general, a member of the defense bar or corporate counsel, or some other member of our profession, guidance as to the limits of communication with those individuals represented by counsel is sorely needed. The danger is that confusion over the issue will lead to the absence of ethical restraints.

1. See also, the comment to 4.2 which states, in part:

In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

2. See Harvey Beckman, "Thornburgh Rule Is Nixed," The National Law Journal, 11/2/98, A8.

3. See Terry Carter, "Ethics on Hold," ABA Journal, January 1999, 26.

4. Beckman, ibid.

5. John Q. Barrett, "Federal Statute Applies State Conduct Rules to Prosecutors," The New York Professional Responsibility Report, January 1999, 2.

6. U.S. ex rel O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (1998).

7. Rep. Joseph McDade (R. Pa.) proposed the legislation. His "interest in the conduct of federal prosecutors was shaped by his own experience as the target of a long-term federal criminal investigation. [He] was tried and acquitted on bribery charges in 1996." Barrett, ibid.

8. The commission would be composed of seven members, appointed by the Chief Justice of the United States. The nine rules of prohibited conduct include such prosecutorial misconduct as seeking the indictment of any person "in the absence of a reasonable belief of probable cause"; failing to disclose exculpatory evidence to the defense and offering false evidence.

9. The subcommittee is chaired by Mankato attorney Douglas R. Peterson and includes representatives from this office, the law schools, the County Attorney's Association, and the defense bar.

10. Barrett, ibid.

11. Ibid.