McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys

McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys

Order Code RL30060
CRS Report for Congress
Received through the CRS Web
McDade-Murtha Amendment:
Ethical Standards for
Justice Department Attorneys
Updated December 18, 2001
-name redacted-
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress

McDade-Murtha Amendment: Ethical Standards for
Justice Department Attorneys
Summary
The McDade-Murtha Amendment, 28 U.S.C. 530B, requires federal prosecutors
to follow state and federal rules of professional responsibility in effect in the states
where they conduct their activities. It also continues in place the sixty year old
directive that federal prosecutors follow the ethics rules promulgated by the states in
which they are licensed to practice. Proponents claim the change will confirm that
federal prosecutors must follow the same ethical rules as other lawyers and will
enhance the prospect of some protection against wayward federal prosecutors.
Opponents charge that it will implicitly undermine the Attorney General's authority
to preempt state laws that conflict with federal law enforcement interests and that in
doing so it will jeopardize the use of undercover techniques against terrorists, drug
kingpins and child predators because of possible interpretations of the so-called no
contact rule.
Under the no contact rule, accepted in virtually every American jurisdiction, a
lawyer in representing a client may "not communicate about the subject of the
representation with a person 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." The rule was designed to prevent lawyers from taking unfair
advantage of their untutored opponents.
The Justice Department is troubled by judicial interpretations of the rule that
indicate that it may apply: (1) in criminal cases prior to arrest or indictment; (2) to
federal prosecutors whose only contact is through informants, cooperative witnesses,
undercover agents, or federal investigators; (3) even though the represented client
initiated the contact; or (4) to contacts with the employees or agents of an
organizational target of a federal administrative and civil investigation. The courts
have thus far repudiated the efforts of the Department to craft an exception for federal
prosecutors administratively.
Similar concerns stimulated by rules covering the disclosure of exculpatory
evidence to the grand jury and the use of grand jury subpoenas against attorneys seem
to have been eased by internal guidelines and more favorable jurisprudence.
At its heart, the debate involves defining the ethical bounds within which
Department of Justice attorneys must operate and deciding to whom that task should
be assigned.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislative Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Apparent Points of Disagreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Prosecutorial Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Protective and Corrective Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Department of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Civil Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State Bar Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Objections to the Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
No Contact Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Hammad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Lopez & Ferrara: Client Initiated Contacts . . . . . . . . . . . . . . . . . . . . . . . . 16
O'Keefe: No Contact & Corporate Civil Enforcement . . . . . . . . . . . . . . . 18
Justice Department Regulations After the Amendment . . . . . . . . . . . . . . . 18
Ethics and the Grand Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Attorney Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Prosecutors and Undercover Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Who Should Regulate the Ethics of Federal Prosecutors . . . . . . . . . . . . . 25
Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
State Standards of Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . . 29
The No Contact Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Grand Jury Exculpatory Evidence Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Grand Jury Subpoena Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
United States District Court Rules:
Standards of Attorney Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States Attorneys' Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
§9-11.233 Presentation of Exculpatory Evidence . . . . . . . . . . . . . . . . . . . 52
§9-13.410 Guidelines for Issuing Grand Jury or Trial Subpoena to Attorneys for
Information Relating to the Representation of Clients . . . . . . . . . . 52
[Department of Justice] Criminal Resource Manual 263 . . . . . . . . . . . . . . 53
28 C.F.R. Pt. 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

McDade-Murtha Amendment: Ethical
Standards for Justice Department Attorneys
Introduction
The McDade-Murtha Amendment, 28 U.S.C. 530B, requires federal prosecutors
to follow state and local federal court rules of professional responsibility in effect in
the states where they conduct their activities. Proponents claim the change confirms
that federal prosecutors must follow the same ethical rules as other lawyers and
enhances the prospect of some protection against wayward federal prosecutors.
Opponents charge that it implicitly undermines the Attorney General’s authority to
preempt state laws which conflict with federal law enforcement interests and that in
doing so it jeopardizes the use of undercover techniques against terrorists, drug
kingpins and child predators.
Summary of the Amendment
The Amendment1 declares that “[a]n attorney for the Government shall be
subject to State laws and rules, and local Federal court rules, governing attorneys in
each State where such attorney engages in that attorney's duties, to the same extent
and in the same manner as other attorneys in that State,” 28 U.S.C. 530B(a).
The phrase “attorneys for the government” is defined to include only Justice
Department attorneys and those exercising federal litigation authority, including
federal independent counsel.2 The Attorney General is empowered to promulgate the
1 The proposition was originally proposed by Congressmen McDade and Murtha as part of
the Citizens Protection Act, H.R. 3396 (106th Cong.).
2 28 U.S.C. 530B(c)(“(c) As used in this section, the term `attorney for the Government'
includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal
Regulations and also includes any independent counsel, or employee of such a counsel,
appointed under chapter 40").
28 C.F.R. §77.2 provides, “As used in this part, the following terms shall have the
following meanings, unless the context indicates otherwise: (a) the phrase attorney for the
government means the Attorney General, the Deputy Attorney General, the Solicitor General,
the Assistant Attorneys General for, and any attorney employed in, the Antitrust Division,
Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources
Division, and Tax Division; the Chief Counsel of the DEA and any attorney employed in that
office; the General Counsel of the FBI and any attorney employed in that office or in the
(Office of General Counsel) of the FBI; any attorney employed in, or head of, any other legal
office in a Department of Justice agency; any United States Attorney; any Assistant United
States Attorney; any Special Assistant to the Attorney General or Special Attorney duly

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regulations necessary to implement the statute's instructions, 28 U.S.C. 530B(b).

The appropriations law which enacted the Amendment elsewhere reminded the
Department of Justice of the command first issued in 1938 to the effect that its
attorneys must comply with the ethical standards of the state bars to which they are
admitted.3
Legislative Background
Congress included the Amendment as section 801 of the Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 112 Stat. 2681-118 (1998).
Section 801 was a remnant of the Citizens’ Protection Act whose roots extend back
at least to the 101st Congress when the House Government Operations Committee
appointed pursuant to 28 U.S.C. 515; any Special Assistant United States Attorney duly
appointed pursuant to 28 U.S.C. 543 who is authorized to conduct criminal or civil law
enforcement investigations or proceedings on behalf of the United States; and any other
attorney employed by the Department of Justice who is authorized to conduct criminal or civil
law enforcement proceedings on behalf of the United States. The phrase attorney for the
government also includes any independent counsel, or employee of such counsel, appointed
under chapter 40 of title 28, United States Code. The phrase attorney for the government
does not include attorneys employed as investigators or other law enforcement agents by the
Department of Justice who is not authorized to represent the United States in criminal or civil
law enforcement litigation or to supervise such proceedings. . . .
“(c) The phrase civil law enforcement investigation means any investigation of possible
civil violations of, or claims under, federal law that may form the basis for a civil law
enforcement proceeding.
“(d) The phrase civil law enforcement proceeding means a civil action or proceeding
before any court or other tribunal brought by the Department of Justice under the authority
of the United States to enforce federal laws or regulations, and includes proceedings related
to the enforcement of an administrative subpoena or summons or civil investigative demand.”
3 Sec. 102, P.L.No. 105-277, 112 Stat.2681-66 (1998): “Authorities contained in the
Department of Justice Appropriation Authorization Act, Fiscal Year 1980 (Public Law 96-
132; 93 Stat. 1040 (1979)), as amended, shall remain in effect until the termination date of
this Act or until the effective date of a Department of Justice Appropriation Authorization
Act, whichever is earlier.” The 1979 limitation has been carried forward in annual Justice
Department appropriations ever since, e.g., P.L.No. 106-113, 113 Stat. 1501A-19 (1999);
P.L.No. 106-553, 114 Stat. 2762A-67 (2000).
Section 3(a) of the 1979 legislation declares that, "None of the sums authorized to be
appropriated by this Act may be used to pay the compensation of any person employed after
the date of the enactment of this Act as an attorney (except foreign counsel employed in
special cases) unless such person shall be duly licensed and authorized to practice as an
attorney under the laws of a State, territory, or the District of Columbia," 93 Stat. 1044
(1979).
Virtually identical language had appeared in every Justice Department appropriation act
prior to 1979 all the way back to 1938, 52 Stat. 269 (1938). Since an attorney can only be
“duly licensed and authorized to practice” if he or she agrees to adhere to the ethical standards
required of members of the bar, the courts have understood this requirement to mean that
Justice Department attorneys must follow the ethical standards prescribed by the states in
which they were admitted to practice, United States v. Ferrara, 847 F.Supp. 964, 969
(D.D.C. 1993), aff'd on other grounds, 54 F.3d 825 (D.C.Cir. 1995).

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conducted hearings4 and recommended among other things a thorough examination
of the ethics rules applicable to Department attorney while expressing concern over
“the problems inherent in any system of self-policing and regulation,” H.Rept. 101-
986, at 35 (1990).
The issue lay dormant until the 104th Congress, when Representative McDade
introduced a bill, using essentially the same language found in section 801.5 The
House Judiciary Courts and Intellectual Property Subcommittee held hearings,6 but
Congress took no other action.7

Congressman McDade reintroduced the measure early in the 105th Congress
(H.R. 232). He and Congressman Murtha subsequently offered a second bill, the
Citizens Protection Act (H.R. 3396), which added sections on punishable conduct and
on a Misconduct Review Board to ensure enforcement of basic ethical standards.
There were no committee hearings held, nor reports issued, on either bill, but the
House Appropriations Committee incorporated the Citizens Protection Act into its
omnibus appropriations measure (H.R. 4276). The Committee's report tersely
explained that the portion of the bill which was eventually enacted was designed to
4 Exercise of Federal Prosecutorial Authority in a Changing Legal Environment: Hearing
Before the Government Information, Justice, and Agriculture Subcomm. of the House
Comm. on Government Operations, 101st Cong., 2d Sess. (1990).
5 H.R. 3386 (104th Cong.): Sec. 1."This Act may be cited as the `Ethical Standards for
Federal Prosecutors Act of 1996.' Sec. 2. ETHICAL STANDARDS FOR FEDERAL
PROSECUTORS. (a) IN GENERAL- Chapter 31 of title 18, United States Code, is amended
by adding at the end the following: `Sec. 530B. Ethical standards for attorneys for the
Government. `(a) An attorney for the Government shall be subject to State laws and rules, and
local Federal court rules, governing attorneys in each State where such attorney engages in
that attorney's duties, to the same extent and in the same manner as other attorneys in that
State.
`(b) The Attorney General shall make and amend rules of the Department of Justice to assure
compliance with this section.
`(c) As used in this section, the term `attorney for the Government' includes any attorney
described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations.'"
6 Ethical Standards for Federal Prosecutors Act of 1996: Hearing Before the Subcomm. on
Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d
Sess. (1996).
7 Early in the 104th Congress, Senator Dole introduced a comprehensive crime control bill
that included a provision authorizing the Attorney General to shield Justice Department
attorneys from the otherwise applicable ethical standards under state bar rules and local
federal court rules, S.3, §502 ("Notwithstanding the ethical rules or the rules of the court of
any State, Federal rules of conduct adopted by the Attorney General shall govern the conduct
of prosecutions in the courts of the United States"). While the Senate Judiciary Committee
held hearings on various aspects of S.3, none appear to have focused on the ethical standards
issue, Prison Reform: Enhancing the Effectiveness of Incarceration: Hearing Before the
Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995); Federal Law Enforcement
Priorities: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess.
(1995); The Jury and the Search for Truth: The Case Against Excluding Relevant Evidence
at Trial: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995);
S.3 was never reported out of committee.

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confirm that the Attorney General did not have the authority to exempt Department
attorneys from the ethical standards to which other attorneys were held.8 The Senate
version of the measure had no similar provision.
The conference committee for the appropriations package stripped out the
punishable conduct and review board sections leaving section 801 to be passed with
the rest of the compromise bill. Senators Hatch and Leahy, the Chairman and ranking
minority member the Senate Judiciary Committee, greeted section 801's passage with
dismay.9

During the 106th Congress, Senate Hatch introduced legislation repealing the
Amendment and codifying the requirement that federal prosecutors adhere the ethical
standards of the bar to which they were admitted, S.250.10 The Subcommittee on
Criminal Justice Oversight of the House Committee on the Judiciary held hearings,
but no further action was taken.11
Apparent Points of Disagreement
While no single source in the legislative background supplies a full explanation
or even a full identification of the issues reflected in the McDade-Murtha Amendment,
8 “The bill includes language to make government attorneys subject to laws and rules of the
State and the rules of the local Federal court in which they are practicing and to establish
conduct standards and procedures for Department of Justice employees. Subtitle A, section
811, addresses the concerns of the Committee about the Department of Justice's issuance of
a regulation that exempts its attorneys from the same State laws and rules of ethics which all
other attorneys must follow (59 Fed.Reg. 39910, August 4, 1994),” H.R.Rep.No. 105-636
at 154 (1998). As discussed below, the Department of Justice had reacted to judicial
construction of the so-called "no contact" rule of professional ethics first with a memorandum
from Attorney General Thornburgh and then with regulations from Attorney General Reno
that purported to authorize federal prosecutors to disregard the rule except to the extent noted
in the memorandum/regulations.
9 144 Cong.Rec. S12798-799 (daily ed. Oct. 21, 1998)(remarks of Sen. Hatch)("This ill-
advised provision passed the House as an amendment to the House Commerce, State, Justice
Appropriations bill but it never passed the Senate. . . . I would note, however, that in response
to our concerns, the Leadership has inserted a provision which will delay the implementation
of this provision for six months. At the very least, this will give the Department of Justice and
others the opportunity to educate the Congress as to the serious effect this blanket provision
will have on law enforcement. It is my hope and expectation that, during the next sixth
months, we will be able to develop a more workable and effective solution"); 114 Cong.Rec.
S12858-858 (daily ed. Oct. 21, 1998)(remarks of Sen. Leahy)("mischief"); see also, 144
Cong.Rec. S12996-997 (daily ed. Nov. 12, 1998)(remarks of Sen. Abraham).
10 Senator Hatch also introduced S. 755 which would have delayed the April, 1999 effective
date of the Amendment for another six months.
11 The Effect of State Ethics Rules on Federal Law Enforcement: Hearing Before the
Subcomm. Of the Sen. Comm. On the Judiciary, 106th Cong., 1st Sess. (1999). Legislative
activity in this Congress is the subject of separate report entitled McDade-Murtha
Amendment: Legislation in the 107th Congress Concerning Ethical Standards for
Department of Justice Litigators, CRS REP. NO. RL (Dec. 18, 2001).

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the legislative record taken as a whole reveals the positions of proponents and
opponents. Proponents maintain:
!
there are instances of federal prosecutorial abuse
!
traditional checks on federal prosecutorial abuse have eroded; the
courts have been increasingly reluctant to use their supervisory
powers to prevent or correct prosecutorial abuse; the check once
afforded by scarce resources no longer applies; the incentives for
abuse have become more attractive
!
the judicial remedies available for prosecutorial abuse (retrial) are
costly and do little to discourage or punish overzealous prosecutors
!
the Department of Justice's system of self discipline has not been
effective
!
the disciplinary mechanisms available for enforcement of standards of
conduct for the legal profession offer an impartial means of deterring
and punishing prosecutorial abuse
!
the disciplinary mechanisms are more effective if they can be invoked
where the abuse occurs rather than where the prosecutor is admitted
to practice
!
the Attorney General lacks authority claimed by the Justice
Department to waive the ethical standards to which federal
prosecutors must otherwise adhere
!
the enforcement of standards of professional conduct poses no threat
to effective federal law enforcement; should such a threat develop the
appropriate response is federal legislation
Critics contend:
!
there are few instances of federal prosecutorial abuse
!
charges of prosecutorial abuse are the work defense lawyers
attempting to encumber effective law enforcement
!
the Justice Department has an effective internal means of dealing with
any wayward federal prosecutors
!
federal prosecutors have and will continue to observe the highest
standards of professional conduct, but under the guise of ethical
standards states have introduced policy determinations (in conflict
with existing federal policies) into the rules, i.e.:
- "no contact" rules that hamstring undercover and other
legitimate investigative techniques

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- requiring the disclosure of exculpatory evidence to the grand
jury
- requiring prior judicial approval before serving a subpoena on
an attorney to appear before the grand jury and testify about client-
related matters
!
the Attorney General has preemptive authority to determine the
manner in which federal laws are enforced
!
state authorities have no power to preempt conflicting law
enforcement policies and standards of conduct founded on federal law
!
federal law enforcement policies should be determined by federal
authorities not state bar authorities (who are often captives of the
defense bar)
!
state authorities have no power to pre-empt conflicting federal law
enforcement policies and standards of conduct founded on federal law
!
requiring federal law enforcement authorities to comply with the
multitude of state bar requirements would impair federal multistate
investigations
Federal Prosecutorial Abuse
During floor debate on the Amendment to strike the Citizens Protection Act
from the appropriations package, several Members of the House spoke from personal
experience of both specific instances12 and of general patterns of prosecutorial
12 E.g., 144 Cong. Rec. H7229 (daily ed. Aug. 5, 1998) (remarks of Rep. Murtha)
("insidious" and "unethical tactics" used against Rep. McDade); id. at H7230 (remarks of
Rep. Ford) ("5 years of investigating, several years, one trial, a second trial, abuse by the
Justice Department, simply trampling the rights of an individual, another Member of
Congress, I cannot tell you the pain that it exacted on my family and my father personally");
id. at H7233 (remarks of Rep. King) ("I would like to refer to a predecessor that I had here
in the Congress. . . . He was a man who was brought in by the United States Attorney and
told he had to deliver a political leader. When he refused to do that, he was called before the
grand jury. His family was harassed. He was indicted. His friends were indicted. Everything
was leaked to the newspapers. This man's career was destroyed. He was defeated here in the
United States Congress. Finally his case went to trial. The jury was out 30 minutes and he
was acquitted. It came out . . . that all throughout the trial, from day one, the prosecutors had
evidence that would have completely exonerated this defendant . . . the judge said it was
disgrace"); id. at H7245 (remarks of Rep. Duncan) ("We have had far too many cases where
overzealous prosecutors have presented high profile defendants just so that prosecutor could
make a name for himself. I remember the totally unjustified case against President Reagan's
Secretary of Labor, Ray Donovan, in which after he was acquitted, made the famous
statement, "Where do I go to get my reputation back?").

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misconduct.13 Their disclosures often ended with exasperated observations about the
ineffectiveness of existing preventive and remedial measures.14 They were met by
proponents of the amendment who cautioned against overreaction and the dangers of
subjecting federal law enforcement interests to state regulatory authority.15
13 E.g., 144 Cong. Rec. H7232 (daily ed. Aug. 5, 1998)(remarks of Rep. Kanjorski)("the
prosecutors in the United States today, whether they be special counsels or regular
prosecutors, have shown us that they are going to push it to the end of the envelop and
beyond. They are going to write their own definition of what standards are"); id. at H7233
(remarks of Rep. King)("Prosecutors are out of control. They are ruining the civil liberties
of people in this country"); id. at H7234 (remarks of Rep. Fowler)("Time and time again it
has come to my attention that Department of Justice lawyers have conducted themselves in
a questionable manner while representing the Federal Government without any penalty or
oversight"); id. at H7236 (remarks of Rep. Waters)("I know thousands of Mr. McDades who
do not have any attorneys, whose grandmothers and mothers come crying to my office for me
to help them and I cannot do anything because in my powerful government, prosecutors have
run amuck").
14 E.g., 144 Cong. Rec. H7229 (daily ed. Aug. 5, 1998)(remarks of Rep. Murtha)("in
addition to trying to intimidate the House of Representatives and ignore the rules of the House,
which the public saw immediately, he was reelected three times during this period, when they
leaked everything that could possibly be leaked, using those unethical tactics we are talking
about during this period of time. Then, after this is all over, they tried to promote the
prosecutor to judge"); id. at H7233 (remarks of Rep. King)(". . . the judge said it was
disgrace. He referred it to the Justice Department to have it investigated. What was done?
Nothing. That is what always happens nothing"); id. at H7239 (remarks of Rep. Hyde)("I go
back to the Iran-Contra days when Elliot Abrams was destroyed by an independent counsel,
I thought very unjustly, when Casper Weinberger was indicted three days before an election,
and there is just no accountability . . ."); id. at H7242 (remarks of Rep. McDade)("Under the
current system that we heard described by my colleagues . . . there is a remedy for a citizen,
once convicted. They can appeal to another court, a higher court. They can make a
recommendation or an argument at OPM, the Office of Professional Responsibility in the
Department of Justice, after they have been convicted; lives ruined, bankrupt. If they can
prove something, they might get a reversal of their case. Let me be specific. In the case of
United States v. Taylor about a year ago, the Department of Justice twisted the testimony of
an individual and convicted him on perjurious testimony. If we read the case, we will read
that the judge that tried it found the employees of the Department guilty of obstruction of
justice. What a charge, corrupting the system that they are supposed to be defending. What
did the Office of Professional Responsibility do after the judge made that finding? Mr.
Chairman, they gave the people who corrupted that system a 5-day suspension form their
jobs").
15 E.g., 144 Cong. Rec. H7238 (daily ed. Aug. 5, 1998)(remarks of Rep. Bryant)("by and
large these are good prosecutors trying to do the right thing in many cases and in very
dangerous, very tough situations. What I want to guard against here today is an overreaction
to these anecdotal cases"); id. at H7244 (remarks of Rep. Barr)("Let us not throw the baby
out with the bath water. If there have been abuses, then let us address those particular abuses,
but not change and take away the ability of Federal prosecutors to conduct multi-State
investigations"); id. at H7245 (remarks of Rep. Hutchinson)("We have to be careful not to
adopt bad policy because we are sorry for what has happened in the past"); id. at H7246
(remarks of Rep. Harman)("If there is a problem with prosecutorial misconduct, it should
certainly be addressed. But is it better to address it by requiring federal prosecutors adhere
to a single, high standard of conduct, or to 50 different sets of ethics rules? Indeed, some of

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Protective and Corrective Alternatives
The Courts
Although opponents and proponents of the Amendment disagree on its
effectiveness, there are, at least in theory, more than a few devices to prevent and
correct prosecutorial abuse. The courts are perhaps the most obvious source. They
have authority to control criminal trials, to exclude improperly secured evidence, to
overturn convictions, to order new trials, and to punish contempts committed before
them by fine, suspension from practice before them, removal from a particular case,
and/or admonishments and reprimands.
The primary purpose of a federal criminal trial, however, is to determine whether
the accused is guilty beyond a reasonable doubt. Buttressed by tradition and the
Constitution, the courts have long exercised control over the proceedings to ensure
that the determination is made fairly. If a prosecutor's misconduct so infects a trial
as to render any verdict uncertain and unfair or otherwise breaches constitutional
barriers, the courts will respond.16
In the absence of a clear constitutional violation, however, the federal courts,
following the lead of the Supreme Court, have shown a growing reluctance to use
their supervisory powers to exclude evidence, dismiss indictments, or reverse
convictions in order to prevent prosecutorial overreaching.17 Yet courts and
commentators alike have noted a general judicial failure to embrace the alternatives
to exclusion, dismissal, and reversal.18
the state rules may be contrary to the obligations and responsibilities we may require of
federal prosecutors").
16 United States v. Hastings, 461 U.S. 499, 505 (1983)("guided by considerations of justice
and in the exercise or supervisory powers, federal courts may, within limits, formulate
procedural rules not specifically required by the Constitution or Congress. The purpose
underlying use of the supervisory powers are threefold: to implement a remedy for violation
of recognized rights; to preserve judicial integrity by ensuring that a conviction rests on
appropriate considerations validly before the jury; and finally, as a remedy designed to deter
illegal conduct,") (internal quotations and citations omitted); see also, Twenty-Seventh Annual
Review of Criminal Procedure, "Prosecutorial Misconduct," 86 GEORGETOWN LAW JOURNAL
1677 (1998); Gershman, TRIAL ERROR AND MISCONDUCT (1997).
17 Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM LAW
REVIEW 355, 363 (1996)("In 1983, in United States v. Hastings, [461 U.S. 499], the
Supreme Court addressed a case in which a Federal Court of Appeals had reversed `gruesome'
sexual abuse convictions `to discipline the prosecutor—and warn other prosecutors' about
their perceived prosecutorial misconduct. The Supreme Court ordered that the convictions be
reinstated, and stated a more restricted view of federal courts' `supervisory power' than was
prevalent in many lower courts. The court noted that remedy `more narrowly tailored' than
reversal on the merits was available: ethical chastisement and discipline of the offending
federal prosecutors").
18 "We thus find ourselves in a situation with which we are all too familiar: a prosecutor has
engaged in misconduct at trial, but no reversible error has been shown," United States v.
Wilson, 149 F.3d 1726, 1303 (11th Cir.)(Aug. 13, 1998). The Wilson court listed a series

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Department of Justice
The Department of Justice enjoys even more sweeping authority to discipline its
prosecutors, ranging from administrative sanctions to the presentation to a grand jury
for prosecution. In addition to supervisory authority over federal prosecutors by the
various United States Attorneys' Offices, the Department of Justice maintains an
Office of Professional Responsibility (OPR) authorized to receive and review
complaints of prosecutorial misconduct, 28 C.F.R. §0.39a. Neither appear to have
won universal acclaim as an effective hedge against prosecutorial overreaching.19
of alternative sanctions ranging from curative jury instructions to contempt citations, fines,
reprimands, suspension from the bar of the court, removal of the attorney from the case, and
referral to bar disciplinary authorities. It then reiterated an earlier, and apparently unheeded
plea, "`We encourage the district courts in this circuit to remain vigilant . . . and consider
more [fully these sanctions] in cases of persistent or flagrant misconduct,'" 149 F.3d at 1304,
quoting, United States v. Butera, 677 F.2d 1376, 1383 (11th Cir. 1982); Green, Policing
Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement? 8 ST.
THOMAS LAW REVIEW 69, 82 (1995)("In most cases when the propriety of the prosecutor's
conduct is called into question, but no remedy is available to the defendant, district judges
decline to act as disciplinarians, but instead leave it to others to address the question").
19 A Call for a Uniform Standard of Professional Responsibility in the Federal Court
System: Is Regulation of Recalcitrant Attorneys at the District Court Level Effective? 66
UNIVERSITY OF CINCINNATI LAW REVIEW 901, 919 (1998)("The power to the DOJ to regulate
misconduct over all of its prosecutors in the ninety-four districts has resulted in marked
criticism surrounding the DOJ's ability to effectively regulate its own employees. First, the
OPR has been criticized for rarely asserting its jurisdiction over a DOJ attorney; therefore,
few investigations of DOJ attorneys actually occur. Second, even when the OPR does assert
its jurisdiction, the OPR has been criticized for potential bias because it is regulating one of
its own employees. Third, in the unusual instance where the OPR finds a violation by a DOJ
attorney, the attorney may avoid scrutiny and discipline by simply leaving the employment of
the department. Last, the DOJ rarely issues a public explanation of its internal finding, which
precludes public exposure to OPR findings"); Green, Policing Federal Prosecutors: Do Too
Many Regulators Produce Too Little Enforcement?, 8 ST. THOMAS LAW REVIEW 69, 84-7
(1995); Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal,
or Discipline? 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083, 1109-111 (1994).
A number of courts have lamented the failure of various United States Attorneys' Offices
to supervise wayward Assistant United States Attorneys or to deal with their misconduct, e.g.,
United States v. Kojayan, 8 F.3d 1315, 1324-325 (9th Cir. 1993)("The overwhelming
majority of prosecutors are decent, ethical, honorable lawyers who understand the awesome
power they wield, and the responsibility that goes with it. . . . One of the most important
responsibilities of the United States Attorney and his senior deputies is ensuring that line
attorneys are aware of the special ethical responsibilities of prosecutors, and that they resist
the temptation to overreach. . . . What we find most troubling about this case is not the
AUSA's initial transgression, but that he seemed to be totally unaware he'd done anything at
all wrong, and that there was no one in the United States Attorney's office to set him straight.
Nor does the government's considered response, filed after we pointed out the problem, inspire
our confidence that this kind of thing won't happen again"); United States v. Ming He, 94
F.3d 782, 791 (2d Cir. 1996)("Both cases [Ming He and an earlier case Pinto in which the
Second Circuit warned against a particular form of prosecutorial misconduct] originated in
the same district, and though we characterized the prosecutor's conduct in Pinto as `unseemly,'
the hint to make some sort of change apparently was not acted upon. Instead, the

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Civil Remedies
The victims of federal prosecutorial abuse have few civil remedies at their
disposal. As a general rule, the federal government enjoys sovereign immunity that
prevents it from being sued even for the misconduct of its officers and employees.20
Personally, federal prosecutors enjoy judicial immunity from civil liability for their
court-related activities as prosecutors and qualified immunity for their activities as
investigators.21
Congress may abrogate any of these immunities, but it has done so only to a very
limited extent. It has, for example, authorized the payment of attorneys' fees and
other litigation expenses to "prevailing parties" in a criminal case who are the victims
of prosecutorial misconduct that is "vexatious, frivolous, or in bad faith,"22 and to
government's conduct in this case, we are told, is not a rare occurrence but `standard
practice'"); United States v. Van Engel, 15 F.3d 623, 629 (7th Cir. 1993) ("Someone in the
Milwaukee U.S. Attorney's office should have known . . . [not to] launch a sting operation
[based on meager evidence] against the lawyer of an individual under criminal investigation
by the some office").
20 F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); see also, United States v. Horn, 29 F.3d
754, 767 (1st Cir. 1994)(vacating on sovereign immunity grounds a district court order that
the government pay attorneys' fees resulting from a particularly egregious instance of
prosecutorial misconduct).
21 Kalina v. Fletcher, 522 U.S. 118 (1997); Imbler v. Pachtman, 424 U.S. 409 (1976);
Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
22 18 U.S.C. 3006A note, P.L. 105-119, § 617, 111 Stat. 2519 (1997)(“During fiscal year
1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in
which the defendant is represented by assigned counsel paid for by the public) pending on or
after the date of the enactment of this Act [Nov. 26, 1997], may award to a prevailing party,
other than the United States, a reasonable attorney's fee and other litigation expenses, where
the court finds that the position of the United States was vexatious, frivolous, or in bad faith,
unless the court finds that special circumstances make such an award unjust. Such awards
shall be granted pursuant to the procedures and limitations (but not the burden of proof)
provided for an award under section 2412 of title 28, United States Code. To determine
whether or not to award fees and costs under this section, the court, for good cause shown,
may receive evidence ex parte and in camera (which shall include the submission of classified
evidence or evidence that reveals or might reveal the identity of an informant or undercover
agent or matters occurring before a grand jury) and evidence or testimony so received shall
be kept under seal. Fees and other expenses awarded under this provision to a party shall be
paid by the agency over which the party prevails from any funds made available to the agency
by appropriation. No new appropriations shall be made as a result of this provision”).

CRS-11
unindicted subjects of an independent counsel investigation.23 These authorize relief;
they do not speak to either prevention or punishment.
State Bar Authorities
Either the courts or the Department of Justice may refer evidence of a federal
prosecutor's ethical violations to the authorities of the bar in the state in which he or
she is admitted to practice for disciplinary action. For some time, federal prosecutors
have been required to be licensed to practice law in at least one state, district or
territory of the United States and consequently to adhere to the ethical standards
established for the jurisdictions in which they are licensed. Each jurisdiction has its
own means of enforcing adherence to its ethical dictates. Attorneys remain subject
to those demands wherever they go, but disciplinary enforcement for out-of-state
misconduct is more cumbersome. Complaints are less like to be filed, more costly to
investigate, and less convenient to contest. This can be especially telling in the case
of federal prosecutors who need not be licensed in the jurisdiction in which they are
appointed nor in every jurisdiction in which they perform their duties.

The Amendment seeks to overcome this difficulty by requiring federal
prosecutors to follow the ethical standards of any jurisdiction in which they conduct
their duties. Critics challenge not the effectiveness of the proposal, but as discussed
below at greater length, whether federal law enforcement interests ought to preempt
state dictates, at least under some circumstances.
Objections to the Amendment
The basic objections to section 801 seem to address what it does not do and
what it portends rather than what it does. The 1996 hearings on virtually identical
language contain perhaps the clearest statement of the Department of Justice's
objections to passage of the Amendment— concern over state regulation of federal
law enforcement and repudiation of the Department's claim of authority to preempt
state pronouncements that conflict with federal law enforcement interests:
23 28 U.S.C. 593(f)("(1) Award of fees.—Upon the request of an individual who is the subject
of an investigation conducted by an independent counsel pursuant to this chapter, the division
of the court may, if no indictment is brought against such individual pursuant to that
investigation, award reimbursement for those reasonable attorneys' fees incurred by that
individual during that investigation which would not have been incurred but for the
requirements of this chapter. The division of the court shall notify the independent counsel
who conducted the investigation and Attorney General of any request for attorneys' fees under
this subsection. (2) Evaluation of fees.—The division of the court shall direct such
independent counsel and the Attorney General to file a written evaluation of any request for
attorneys' fees under this subsection, addressing-- (A) the sufficiency of the documentation;
(B) the need or justification for the underlying item; (C) whether the underlying item would
have been incurred but for the requirements of this chapter; and (D) the reasonableness of the
amount of money requested").

CRS-12
H.R. 3386 does, however, have the potential to seriously compromise the
public's interest in effective law enforcement. Among other things, the bill could
seriously hamstring the Department's ability to conduct undercover
investigations. . . .
The primary manner in which H.R. 3386 would affect Federal law
enforcement would be by implicitly cutting back on the Attorney General's
preemption power. Although the Department requires its attorneys to comply
with State ethics rules, the Attorney General currently has the power to preempt
those rules when they conflict with Federal law enforcement and interfere with
her ability to conduct necessary law enforcement operations. By silently
overriding the Attorney General's power in this area, H.R. 3386 could effect at
least two important and undesirable changes in current law.
First, it would leave Federal law enforcement vulnerable to hostile State
ethics rulings or decisions that interfere with the enforcement of Federal law.
Several States, for example, have tried to use "ethics rules" to alter the nature
and function of the Federal jury, for example, by dictating to Federal prosecutors
what evidence they must present to a grand jury or by requiring that prosecutors
obtain judicial approval before obtaining subpoenas for evidence from attorneys
. . . .
A second and related consequences of H.R. 3386 would be to call into
question the Department's regulation on contacts with represented persons.
Historically, when investigations were carried out exclusively by the police and
Federal investigator, ethics rules governing attorneys' contacts with represented
persons did not interfere with the legitimate needs of law enforcement; lawyers
simply weren't involved. . . . [O]ver the past decades . . . prosecutors have
increasingly become more involved in the early stages of criminal investigations.
Generally overwhelmingly, the judicial response has been to recognize that
contacts rules do not apply to prosecutors engaged in pre-indictment law
enforcement investigations. Nevertheless, prosecutors have increasingly faced
contacts-based challenges to law enforcement techniques that were previously
unquestioned. Over the past decade these developments have resulted in two
highly significant problems for Federal prosecutors.
First, the expansive application of the contacts rule in some jurisdictions has
threatened legitimate and essential law enforcement activities. . . .
Second, Federal prosecutors are facing conflicting interpretations of the
contacts regulations by various State and Federal authorities. . . .
Ethical Standards for Federal Prosecutors Act of 1996: Hearing Before the
Subcomm. on Courts and Intellectual Property of the House Comm. on the
Judiciary, 104th Cong., 2d Sess. 12-3 (1996)(testimony of Seth P. Waxman,
Associate Deputy Attorney General)(emphasis added).
No Contact Rules
Rule 4.2 of the American Bar Association's Model Code of Professional Conduct
declares that, "In representing a client, a lawyer shall not communicate about the
subject of the representation with a person 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." Rule 4.2, or its predecessor under the ABA's Code

CRS-13
of Professional Responsibility,24 has been adopted by each of the States25 and
consequently by the vast majority of federal courts.26
Justice Department discomfort with the rule flows not from its explicit demands
but from its construction in the face of the shifting realities of contemporary law
enforcement practices. These may be best demonstrated by the facts of the cases the
Department finds troubling.
Hammad
Conflicts over the reach of the no contact rule came to a head with a case called
United States v. Hammad.27 The government began an investigation of Hammad, a
24 ABA Code of Professional Responsibility, DR 7-104(A)("During the course of his
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party he knows to be represented by
a lawyer in that matter unless he has the prior consent of the lawyer representing such other
party or is authorized by law to do so. (2) Give advice to a person who is not represented by
a lawyer, other than the advice to secure counsel, if the interests of such person are or have
a reasonable possibility of being in conflict with the interests of his client"). Disciplinary
Rule 7-104(A) is itself a successor to a provision in the early ABA Canons of Ethics, ABA
Canon 9 ("A lawyer should not in any way communicate upon the subject of controversy with
a party represented by counsel; much less should he undertake to negotiate or compromise the
matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most
particularly to avoid everything that may tend to mislead a party not represented by counsel,
and he should not undertake to advise him as to the law").
25 State versions of Rule 4.2 are appended.
26 The local rules of professional conduct for the various federal district courts, which
generally adopt the ethical rules of the states in which they are located, are appended. For a
general discussion of the no contact controversy see, United States Department of Justice,
Attorney General Reno, Communications with Represented Persons: Supplementary
Information, 59 Fed.Reg. 39,928 (1994); Bowman, A Bludgeon by any Other Name: The
Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9
GEORGETOWN JOURNAL OF LEGAL ETHICS 665 (1996); Cramton & Udell, State Ethics Rules
and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules,
53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992); Federalizing the No contact Rule:
The Authority of the Attorney General, 33 AMERICAN CRIMINAL LAW REVIEW 189 (1995);
Dash, Justice Department Contacts With Represented Persons: An Alarming Assertion of
Power, 65 JUDICATURE 137 (1994); Flowers, A Code of Their Own: Updating the Ethics
Codes to Include the Non-Adversarial Roles of Federal Prosecutors, 37 BOSTON COLLEGE
LAW REVIEW 923 (1996); Green, A Prosecutor's Communication With Defendants: What
Are the Limits? 24 CRIMINAL LAW BULLETIN 283 (1988); Lidge, Government Civil
Investigators and the Ethical Ban on Communicating With Represented Parties, 67 INDIANA
LAW JOURNAL 549 (1992); Is DoJ Above the Rules? The Department's Bid to Exempt
Lawyers From Contact Rules Is Blasted by States' Chief Justices, 84 AMERICAN BAR
ASSOCIATION JOURNAL 26 (November 1997); The Continuing Conflict Over the Application
of Model Rule 4.2 to Federal Attorneys, 44 AMERICAN UNIVERSITY LAW REVIEW 855
(1995).
27 Hammad involves three opinions, a district court decision, United States v. Hammad, 678
F.Supp. 397 (E.D.N.Y. 1987), and two appellate court decisions, United States v. Hammad,

CRS-14
New York department store owner, based on the suspicion that he was claiming
Medicaid reimbursement for the sale of orthopedic shoes in instances when he had in
fact sold ordinary shoes. Hammad retained the services of a lawyer in connection
with the matter and the prosecution knew he had done so. The prosecutor armed
Goldstein, one of Hammad's shoe suppliers, with a fictitious grand jury subpoena
purporting to call Goldstein as a witness in the Hammad investigation. Goldstein then
engaged Hammad in incriminating conversations that were surreptitiously tape
recorded and videotaped by a Bureau of Alcohol, Tobacco and Firearms agent. After
Hammad was indicted for Medicaid fraud, mail fraud, and obstruction of justice, he
moved to suppress the tapes based on an asserted violation of the no contact rule
adopted by New York bar authorities.
The resulting district and appellate court opinions brought into focus three of the
four points at which interpretation of the no contact rule might be thought to imperil
existing or emerging law enforcement practices:
- application during an investigation but before the client has been arrested or
charged with the crime under investigation;
- application to not only prosecuting attorneys but also to police, undercover
agents, informants and others working with prosecutors; and
- the sanctions are appropriate when a violation occurs.
Left for another day was the question of the rule's application in the case of
clients who are also potential witnesses/informants.
The district court concluded that under the circumstances at hand the no contact
rule applied even before an arrest or indictment, that the rule applied because
Goldstein, who was not a lawyer, had acted as the prosecutor's "alter ego", and that
suppression of the evidence was an appropriate sanction for violation of the rule,
United States v. Hammad, 678 F.Supp. 397 (E.D.N.Y. 1987).
The court of appeals rejected suppression as an appropriate sanction, but agreed
that the rule might be violated by informants acting as alter egos of the prosecutor
prior to the client's arrest or indictment. In its first, more sweeping statement of
violative pre-indictment conduct, it declared that “[c]learlly, clandestine interrogation
by an Assistant United States Attorney [of a suspect known to have retained counsel
with respect to the matter] would contravene his ethical obligation. On the other
hand, the rule is not implicated when an informant comes forth to report
conversations of which the prosecutor lacked foreknowledge,” United States v.
Hammad, 846 F.2d 854, 860 (2d Cir. 1988). The revised opinion used a softer and
yet less instructive characterization, “the use of informants by government prosecutors
in a preindictment, non-custodial situation, absent the type of misconduct that
occurred in this case, will generally fall within the `authorized by law’ exception to
DR 7-104(A)(1) and therefore will not be subject to sanctions," United States v.
Hammad, 858 F.2d 834, 838 (2d Cir. 1988).
846 F.2d 854 (2d Cir. 1988), revised, 858 F.2d 834 (2d Cir. 1988).

CRS-15
Hammad is generally compatible with the law in other jurisdictions in its view
that suppression is an inappropriate sanction28 but that a prosecutor's non-lawyer alter
egos may trigger application of the rule.29 Most cases elsewhere both before and
after, however, have held that the rule can only be violated after a client has been
taken into custody, arrested, indicted or otherwise formally charged, i.e., after there
is a specific “matter” with respect to which the client is represented.30
The Department of Justice responded to Hammad with the so-called Thornburgh
memorandum, printed in, In re Doe, 801 F.Supp. 478, 489 (D.N.M. 1992), a
memorandum from Attorney General Thornburgh to all Justice Department litigators
announcing that, “it is the Department's position that contact with a represented
individual in the course of authorized law enforcement activity does not violate DR
7-104. The Department will resist, on Supremacy Clause grounds, local attempts to
curb legitimate federal law enforcement techniques. . . . Accordingly, an attorney
employed by the Department, and any individual acting at the direction of that
28 United State v. Lowery, 166 F.3d 1119, 1125 (11th Cir. 1999); State v. Baker, 931 S.W.2d
232, 236 (Tenn.Crim.App. 1996); State v. Decker, 138 N.H. 432, 438, 641 A.2d 226, 230
(1994); United States v. Heinz, 983 F.2d 609, 614 (5th Cir. 1993); United States v. Ryans,
903 F.2d 731, 740 (10th Cir. 1990); Suarez v. State, 481 So.2d 1201, 1207 (Fla. 1986); State
v. Morgan, 231 Kan. 472, 479, 646 P.2d 1064, 1070 (1982); People v. Green, 405 Mich.
273, 293-94, 274 N.W.2d 448, 454-55 (1979); but see, Henrich v. State, 666 S.W.2d 185,
(Tex.App. 1983)(rule violation constitutes a violation of state law triggering the general
suppression statute); contra, United States v. Powe, 9 F.3d 68, 69 (9th Cir.
1993)(suppression is a permissible but not required remedy for violation of the rule; United
States. v. DeVillio, 983 F.2d 1185, 1192 (2d Cir. 1993)(same); State v. Miller, 600 N.W.2d
457, 467 (1999).
By the same token, most are of the view that the admission of evidence produced as a
consequence of a no contact rule violation does not justify dismissing charges or overturning
a conviction, United States v. Lopez, 4 F.3d 1455, 1463-464 (9th Cir. 1993); State v. Ford,
793 P.2d 397, 400 (Utah App. 1990); Suarez v. State, 481 So.2d 1201, 1207 (Fla. 1986);
People v. Green, 405 Mich. 273, 293, 274 N.W.2d 448, 454 (1979); United States v.
Thomas, 474 F.2d 110, 112 (10th Cir. 1973)
29 E.g., State v. Lang, 702 A.2d 135, 137 (Vt. 1997); United States v. Heinz, 983 F.2d 609,
613 (5th Cir. 1993); United States v. Ryans, 903 F.2d 731, 833 (10th Cir. 1990); United
States v. Lemonakis, 485 F.2d 941, 956 (D.C.Cir. 1973)
There is general agreement on a threshold question as well, i.e., the no contact rule is not
limited to cases involving civil litigants, but applies with at least equal force in criminal cases,
United States v. Lopez, 4 F.3d 1455, 1459-460 (9th Cir. 1993); State v. CIBA-GEIGY Corp.,
247 N.J.Super. 314, 317, 589 A.2d 180, 181 (1991); State v. Ford, 793 P.2d 397, 399-400
(Utah App. 1990); Suarez v. State, 481 So.2d 1201, 1205 (Fla. 1985); United States v.
Thomas, 474 F.2d 110, 111 (10th Cir. 1973); United States v. Springer, 460 F.2d 1344,
1354 (7th Cir. 1972).
30 E.g., United States v. Balter, 91 F.3d 427, 436 (3d Cir,. 1996); State v. Roers, 520
N.W.2d 752, 758-79 (Minn.App. 1994); United States v. Powe, 9 F.3d 68, 69 (9th Cir.
1993); United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993); United States v. Ryans,
903 F.2d 731, 739-40 (10th Cir. 1990); United States v. Sutton, 801 F.2d 1346, 1366
(D.C.Cir. 1986); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983); State v. Irving,
231 Kan. 258, 262, 644 P.2d 389, 394 (1982); United States v. Durham, 475 F.2d 208, 211
(7th Cir. 1973).

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attorney, is authorized to contact or communicate with any individual in the course
of an investigation or prosecution unless the contact or communication is prohibited
by the Constitution, statute, Executive Order, or applicable federal regulation,” id. at
493.31
Lopez & Ferrara: Client Initiated Contacts
The Department's position was not well received in either the Lopez32 or the
Ferrara33 case, both of which grew out of contacts initiated by client/ defendants in
custody, rather than by government authorities during a pre-indictment investigation.
Lopez retained Tarlow to represent him after he and two co-defendants had been
indicted on drug charges. Tarlow, however, indicated that it was his policy not to
engage in plea negotiations and that Lopez should retain another attorney if he were
interested in plea bargaining. After Twitty, the attorney for one his co-defendants,
indicated that the government might consider probation if Lopez and Twitty's client
cooperated, Lopez agreed to meet with the prosecutor to discuss a plea bargain. He
did so without Tarlow's knowledge, fearing that Tarlow might refuse to represent him
at trial if negotiations failed. The prosecutor arranged for Lopez to appear before a
magistrate to be advised of his rights and be warned of the dangers of negotiating with
the government without having counsel present. Lopez met with federal prosecutors
without Tarlow's knowledge, but the plea bargains were never finalized. Tarlow
learned of the negotiations from the attorney for the third defendant. Tarlow
withdrew as attorney for Lopez and Lopez moved to dismiss his indictment based on
the asserted violation of the California no contact rule that had been adopted for the
federal district court by the local rule.
The district court granted the motion to dismiss, United States v. Lopez, 765
F.Supp. 1433 (N.D.Cal. 1991). The Court of Appeals agreed that the prosecutor had
violated the no contact rule, but found that the district court had exceeded its
authority when it dismissed the indictment, United States v. Lopez, 4 F.3d 1455,
1463-464 (9th Cir. 1993).
The court rejected the contentions that since Lopez had initiated the contact, he
had waived the benefits of the no contact rule, and that he was represented by Tarlow
only with respect to any subsequent trial and not with respect to the plea bargain
negotiations. The no contact rule imposes a duty upon attorneys that cannot be
31 The foundation for the Thornburgh memorandum had been laid several years earlier in an
opinion from the Department's Office of Legal Counsel, Ethical Restraints of the ABA Code
of Professional Responsibility on Federal Criminal Investigations, 4B OP.OFF.LEG.C. 576
(1980).
32 United States v. Lopez, 765 F.Supp. 1433 (N.D.Cal. 1991), vac'd and remanded, 4 F.3d
1455 (9th Cir. 1993); In re Twitty, 2 Cal.State Bar Ct.Rprt. 664 (1994)(disciplinary
proceedings against defense counsel arising out the Lopez case).
33 United States v. Ferrara, 847 F.Supp. 964 (D.D.C. 1993), aff'd on jurisdictional grounds,
54 F.3d 825 (D.C.Cir. 1995); In re Doe, 801 F.Supp. 478 (D.N.M. 1992)(related case arising
out the same facts); In re Howes, 123 N.M. 311, 940 P.2d 159 (1997)(disciplinary
proceedings the prosecutor in Ferrara).

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waived by the contacted party, 4 F.3d at 1462, and as a factual matter Lopez was
represented by Tarlow at the time of contact with the prosecutor, 4 F.3d at 1462-463.
The government's argument that the contact come within the rule's "authorized
by law" exception because of the Thornburgh memorandum fared no better. Since
the general statutory authorities cited by the government did not specifically authorize
the contact, they were found insufficient to qualify for the rule's "authorized by law"
exception, 4 F.3d at 1461.34 Nor could the magistrate's approval qualify, since the
lower court found that the magistrate had been materially misled, 4 F.3d at 1461-262.
Like Lopez, the Ferrara case35 grew out of a contact initiated by a client without
his attorney's knowledge. Smith was arrested and charged with murder in the District
of Columbia. The public defender assigned to represent him refused to give
permission to allow the prosecutor to talk to Smith unless Smith were granted
immunity. Smith, nevertheless, frequently contacted and discussed the case with a
detective assigned to it who was acting under the prosecutor's instructions. Smith
even phoned the detective in the prosecutor's office and raised the matter in a
conversation to which the prosecutor was a party. When the public defender learned
of the conversations, she sought to have the resulting evidence suppressed. The court
denied the motion but the matter was referred to the disciplinary authorities of the
New Mexico bar where the prosecutor was admitted. The prosecutor had the case
removed to the district court in New Mexico which remanded it back to state
authorities.36 The Department then sued to enjoin further inquiry by Ferrara, the Chief
Disciplinary Counsel for the New Mexico Supreme Court's Disciplinary Board. The
34 The government claimed authority under 28 U.S.C. 509 (vesting the functions of
Department of Justice officers, employees and agencies in the Attorney General), 515
(authorizing Department of Justice officials to represent the United States in legal
proceedings, 516 (reserving authority to conduct litigation on behalf of the United States to
the Department of Justice), 533 (authorizing the Attorney General to appoint officials to
conduct the business of the Department of Justice), and 547 (empowering United States
Attorneys within their districts to prosecute, defend, and appear on behalf of the United
States).
The government did not cite the Thornburgh Memorandum as authorization: "The
government, on appeal, has prudently dropped its dependence on the Thornburgh
Memorandum in justifying AUSA Lyons' conduct, and has thereby spared us the need of
reiterating the district court's trenchant analysis of the inefficacy of the Attorney General's
policy statement," 4 F.2d at 1458.
35 In re Doe, 801 F.Supp. 478 (D.N.M. 1992); United States v. Ferrara, 847 F.Supp. 964
(D.D.C. 1993), aff'd on jurisdictional grounds, 54 F.3d 825 (D.C.Cir. 1995); In re Howes,
123 N.M. 311, 940 P.2d 159 (1997)(disciplinary proceedings with an extensive statement of
facts).
36 In doing so the court rejected the interpretation of an earlier court, Kolibash v. Committee
on Legal Ethics, 872 F.2d 571 (4th Cir. 1989), which had concluded that state disciplinary
proceedings were removable to federal court under 28 U.S.C. 1442, In re Doe, 801 F.Supp.
at 481-84. Like Lopez, the court was unpersuaded by the arguments that the Department of
Justice's general statutory authority or the Thornburgh memorandum either preempted state
no contact rules or constituted qualified for the "authorized by law" exception to the no
contact rule, 801 F.Supp. at 484-87. It found the claim of prosecutorial immunity equally
uncompelling, 801 F.Supp. at 487-89.

CRS-18
effort failed for want of personal jurisdiction over Ferrara in the District of Columbia
where the suit was brought.37 The New Mexico Supreme Court subsequently found
that the prosecutor had violated the no contact rule, publicly censured him, and
ordered him to pay $8,663.52 as reimbursement for the cost of the disciplinary
proceeding.38
O'Keefe: No Contact & Corporate Civil Enforcement
O'Keefe features the no contact rule in a corporate, civil law enforcement
context.39 It originated as a qui tam action brought against a government contractor
for overcharging.40 Following initial discovery, the contractor sought a protective
order requiring the government to refrain from contacting the company's employees
in violation of the no contact rule. The district court granted the order, denying that
contacts authorized by federal regulation then in effect (28 C.F.R. Pt. 77 (1995))
came within the “authorized by law” exception to the no contacts rule.41 The court of
appeals agreed and added that the regulations exceed the Attorney General's
authority.42
Justice Department Regulations After the Amendment
The Justice Department promulgated revised regulations after the effective date
of the Amendment, 28 C.F.R. Pt. 77 (appended), which eliminate the explicit rejection
of state no contact rules found in their predecessors. The new regulations, however,
appear to require adherence to local no contact rules (and other local state ethical
standards) only following a formal judicial appearance or when the government
37 Although the appellate court decision was limited to the jurisdictional question, United
States v. Ferrara, 54 F.3d 825 (D.C.Cir. 1995), the district court in Ferrara, jointed Lopez
and Doe in rejection of the Supremacy argument, United States v. Ferrara, 847 F.Supp. at
958-70.
38 The Supremacy and "authorized by law" arguments proved unavailing here too, In re
Howes, 123 N.M. 311, 318-21, 940 P.2d 159, 166-69 (1997). The severity of the sanctions
was driven by the prosecutor's substantial legal experience (i.e., the violation could not be
blamed on either ignorance or incompetence), and by his refusal to "accept or even recognize
the wrongful nature of his conduct," 123 N.M. at 322, 940 P.2d at 170.
The district court in Lopez declined to refer the matter to bar authorities, but Tarlow
complained of the prosecutor's conduct to authorities in Arizona where the prosecutor was
admitted, 765 F.Supp. at 1462; In re Twitty, 2 Cal.State Bar.Ct.Rprt. 664, 672 (1994). There
does not appear to have been any reported action on the complaint.
39 United States ex rel. O'Keefe v. McDonnell Douglas Corp., 961 F.Supp. 1288 (E.D.Mo.
1997), aff'd, 132 F.2d 1252 (8th Cir. 1998).
40 United States ex rel. O'Keefe, 918 F.Supp. 1347 (E.D.Mo. 1996).
41 961 F.Supp. at 1293-296. The regulations in question, the so-call Reno regulations, are
a revised form of the Thornburgh Memorandum, promulgated by Attorney General Reno, 59
Fed.Reg. 39928 (Aug. 4,1994).
42 132 F.3d at 1254-257.

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attorney is locally licensed. The regulations repeat the command of the Amendment
that government attorneys must follow the local rules “where such attorney engages
in that attorney’s duties,” but only as the phrase is defined in section 77.2 of the
regulation, 28 C.F.R. §77.3. “The phrase where such attorney engages in that
attorney’s duties identifies which rules of ethical conduct a Department attorney
should comply with, and means . . . (i) if there is a case pending, the rules of ethical
conduct adopted by the local federal court or state court before which the case is
pending; or (ii) if there is no case pending, the rules of ethical conduct that would be
applied by the attorney’s state of licensure,” 28 C.F.R. §77.2(j). Although the phrase
“case pending” is not defined, the term “case” is: “The term case means any
proceeding over which a state or federal court has jurisdiction, including criminal
prosecutions and civil actions. This term also includes grand jury investigations and
related proceedings (such as motions to quash grand jury subpoenas and motions to
compel testimony), applications for search warrants, and applications for electronic
surveillance,” 28 C.F.R. §77.2.
This may be insufficient in a state which applies its no contact rule prior to the
initiation of formal judicial proceedings, cf., State v. Miller, 600 N.W.2d 457, 467
(Minn. 1999) (“Thus we do not perceive that the application of MRPC 4.2
[Minnesota’s no contact rule] should be limited, in a criminal context, to contacts with
an attorney Adverse counsel’s contacts with an attorney’s client can be disruptive and
deleterious to the attorney’s’s relationship with a client irrespective of whether the
client has been charged with a crime, and the need for the an attorney’s counsel in an
adverse interview is certainly no less before the client is charged than after”).’s client
after the client has been charged.
Ethics and the Grand Jury
One criticism of the Amendment is that it fails to overturn Hammad, Lopez,
Ferrara, and O'Keefe. A second area of Department of Justice concern is the impact
of ethical standards upon federal grand jury practice, i.e., requiring prosecutors to
disclose exculpatory evidence to the grand jury and limiting the circumstances under
which a prosecutor may subpoena defense attorneys to appear before the grand jury.43
It is an area where the ethical precepts are more recently developed, where some
courts have been more receptive to the Department's arguments, and where internal
Department guidelines seem to have been effective.
43 See generally, Bowman, A Bludgeon by any Other Name: The Misuse of "Ethical Rules"
Against Prosecutors to Control the Law of the State, 9 GEORGETOWN JOURNAL OF LEGAL
ETHICS 665 (1996) Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas
of Attorneys, 76 MINNESOTA LAW REVIEW 917 (1992); Cramton & Udell, State Ethics Rules
and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules,
53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992).

CRS-20
Attorney Subpoenas
Rule 3.8(f) of the American Bar Association's Model Rules of Professional
Conduct declares that:
The prosecutor in a criminal case shall . . . (f) not subpoena a lawyer in a
grand jury or other criminal proceeding to present evidence about a past or
present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any
applicable privilege;
(2) the evidence sought is essential to the successful completion of an
ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information.

The standard is of relatively recent origin and has been adopted by only a few
jurisdictions.44 Its application, or the application of an earlier version which required
judicial approval for such subpoenas, has been found contrary to federal law by some
courts. The rule is a product of complaints of grand jury abuse by federal prosecutors
that appear to have been addressed by internal Justice Department regulation.45
It first appeared as a Massachusetts rule binding on members of the state bar46
and adopted by the federal district court under local rule.47 It was challenged
44 The States of Alaska, Colorado, Louisiana, Massachusetts, North Carolina, Oklahoma,
Pennsylvania, Rhode Island, Tennessee, and Virginia have such provisions (text appended),
that have been adopted along with the other state rules by the district courts in Alaska,
Colorado, Louisiana, Massachusetts, North Carolina, Oklahoma, Rhode Island. In addition,
the provisions of the American Bar Association Code of Professional Conduct have been
adopted by the federal district courts in Delaware, Georgia, Montana and West Virginia and
for the Northern District of New York, the Western District of North Carolina, and the Middle
and Southern Districts of Alabama (text of federal adoption rules are appended).
45 The United States Attorneys' Manual advises federal prosecutors that the head of the
Justice Department's Criminal Division must approve attorney subpoenas issued to secure
client information and informs them that approval will be based on considerations comparable
to those in the ABA rules. In considering a request to approve the issuance of a subpoena to
an attorney for information relating to the representation of a client, the Assistant Attorney
General of the Criminal Division applies the following principles: The information sought
shall not be protected by a valid claim of privilege. All reasonable attempts to obtain the
information from alternative sources shall have proved to be unsuccessful. In a criminal
investigation or prosecution, there must be reasonable grounds to believe a crime has been or
is being committed, and that the information sought is reasonably needed for the successful
completion of the information or prosecution. . . ." UNITED STATES ATTORNEYS' MANUAL §9-
13.410 (1997)(a version of the text of §9-13.410 and the accompanying CRIMINAL RESOURCE
MANUAL section is appended.
46 Mass.S.Jud.Ct.R., R. 3:08, PF15 ("It is unprofessional conduct for a prosecutor to
subpoena an attorney to a grand jury without prior judicial approval in circumstances where
the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person
who is represented by the attorney/witness").
47 D.Mass.Local.R., R.5(d)(4)(B).

CRS-21
immediately, and at first unsuccessfully, as contrary to the Supremacy Clause and the
Federal Rules of Criminal Procedure, and as beyond the supervisory power of the
district court.48 When the Pennsylvania Supreme Court adopted the rule,49 however,
the Third Circuit found the Justice Department arguments more persuasive.50
The Circuits remain divided on the issue in spite of passage of the Amendment.
The Tenth Circuit has concluded that the Amendment obviates any Supremacy Clause
problem and confirms that the rule is within the rule-making powers of the state and
lower federal courts.51 The First Circuit believes first that the Amendment does not
introduce state ethical rules into federal grand jury practice or any other area of
federal activity because it does not constitute a clear, specific congressional mandate
and that the rule exceeds the rule-making powers the state and lower federal courts.52
Although the Justice Department regulations declare that the Amendment
“should not be construed in any way to alter federal substantive, procedural, or
evidentiary law,” 28 C.F.R. §77.1(b), and that the phrase “state laws and rules and
local federal court rules governing attorneys” describing the Amendment’s reach
“does not include: (1) any . . . rule . . . which does not govern ethical conduct, such
as rules of procedure, evidence, or substantive law, whether or not such rule is
included in a code of professional responsibility for attorneys,” 28 C.F.R. §77.2(h)(1).
Exculpatory Evidence
The Constitution requires the government in a criminal case to supply the
accused with any evidence in its possession material to his guilt, the credibility of
witnesses against him, or to the appropriate sentence to be imposed.53 There is no
48 United States v. Klubock, 639 F.Supp. 117 (D.Mass. 1986), aff'd 832 F.2d 649 (1st Cir.
1987), aff'd en banc by an equally divided court, 832 F.2d 664 (1st Cir. 1987); Whitehouse
v. United States District Court, 53 F.3d 1349 (1st Cir. 1995); but see, Stern v. United States
District Court, 214 F.3d 4 (1st Cir. 2000)(petition for rehearing en banc denied by equally
divided court).
49 Pa.R.Prof.Conduct, R. 3.10; the rule became applicable in the federal district courts in
Pennsylvania by virtue of their general adoption of the Pennsylvania state bar rules,
E.D.Pa.Civ.R., R.14; M.D.Pa.R., R.304; W.D.Pa.R., R.22.
50 Baylson v. Disciplinary Board, 975 F.2d 102 (3d Cir. 1992), aff'g, 764 F.Supp. 328
(E.D.Pa. 1991).
51 United States v. Colorado Supreme Court, 189 F.3d 1281, 1286-288 (10th Cir. 1999).
52 United States v. United States District Court, 214 F.3d 4, 19-21 (1st Cir. 2000)(petition
for rehearing en banc denied by an equally divided court). The rules before the Tenth and
First Circuits differed in that the rule in the First Circuit assigned the task of finding the three
threshold circumstances required for an attorney-client subpoena to the court while the rule
in the Tenth Circuit assigned it to the prosecutor. The First Circuit found the difference
critical when distinguishing its opinion from that of an earlier First Circuit panel in
Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir. 1995), and from the
opinion of the Tenth Circuit, Stern v. United States District Court, 214 F.3d at 16-7, 21.
53 Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972).

CRS-22
constitutional requirement, however, that the government disclose such exculpatory
evidence to the grand jury that indicts the accused.54 The states are divided as to
whether prosecutors have an ethical obligation to disclose exculpatory evidence to the
grand jury.
The ethics of the legal profession have long demanded that attorneys address the
courts candidly.55 In this vein, Rule 3.3(d) of the ABA Model Rules of Professional
Conduct notes that, “In an ex parte proceeding, a lawyer shall inform the tribunal of
all material facts known to the lawyer which will enable the tribunal to make an
informed decision, whether or not the facts are adverse.” In its comments upon the
special duties of public prosecutors under Rule 3.8, the ABA makes it clear that the
obligations of Rule 3.3(d) include the responsibility of prosecutors to disclose
exculpatory evidence to the grand jury:
A prosecutor has the responsibility of a minister of justice and not simply
that of an advocate. This responsibility carries with it specific obligations to see
that the defendant is accorded procedural justice and that guilt is decided upon
the basis of sufficient evidence. Precisely how far the prosecutor is required to
go in this direction is a matter of debate and varies in different jurisdictions.
Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating
to Prosecution Function, which in turn are the product of prolonged and careful
deliberation by lawyers experienced in both criminal prosecution and defense.
See also Rule 3.3(d) governing ex parte proceedings, among which grand jury
proceedings are included. Applicable law may require other measures by the
prosecutor and knowing disregard of those obligations or a systematic abuse of
prosecutorial discretion could constitute a violation of Rule 8.4 [i.e.,
professional misconduct]. ABA Model Code of Professional Conduct, R.3.8,
Comment [1] (emphasis added).
A majority of the states have adopted both Rule 3.3(d) and the comments under
Rule 3.8.56 Some have implicitly repudiated the notion that prosecutors have an
54 United States v. Williams, 504 U.S. 36 (1992).
55 ABA Canons of Ethics 22 ("The conduct of the lawyer before the Court and with other
lawyers should be characterized by candor and fairness. . .") (1908); ABA Code of
Professional Responsibility DR7-106(B)(1)("In presenting a matter to a tribunal, a lawyer
shall disclose: (1) Legal authority in the controlling jurisdiction known to him to be directly
adverse to the position of his client and which is not disclosed by opposing counsel").
56 Alaska R. of Prof.Conduct, R.3.3(d), R.3.8, Comment; Ariz.R. of Prof.Conduct, ER
3.3(d), R.3.8, Comment; Ark.R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Conn.R. of
Prof.Conduct, R.3.3(d), R.3.8, Comment; Del.R. of Prof.Conduct, R.3.3(d), R.3.8, Comment;
Fla.R. of Prof.Conduct, R. 4-3.3, R. 4-3.8, Comment; Haw. R. of Prof.Conduct, R. 3.3(d),
R.3.8, Comment; Ind.R. of Prof.Conduct, R.3.3(d), R.3.8, Comment; Kan.S.Ct.R., R. 226,
Model R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Ky.S.Ct.R., R. of Prof. Conduct,
R.3.3(d), R.3.8, Comment; Md.Lawyers' R. of Prof. Conduct, R. 3.3(d), R.3.8, Comment;
Mich.R. of Prof.Conduct, R. 3.3(d), R.3.8, Comment; Miss.R. of Prof. Conduct, R.3.3(d),
R.3.8, Comment; Mo.St.Ct.R., R.4-3.3(d), R.3.8, Comment; N.H.R.Prof.Conduct, R.3.3(d),
R.3.8, Comment; N.Mex.R.Prof.Conduct, R. 16-303D, R.16-308, Comment;
N.D.R.Prof.Conduct, R.3.3(f), R.3.8, Comment; Okla.R.Prof.Conduct, R.3.3(d), R.3.8,

CRS-23
obligation to disclose exculpatory evidence to the grand jury by deleting the reference
to 3.3(d)(italicized above) from the comment on the special duties of a public
prosecutor under Rule 3.8.57 Some have opted to adopt the Rules but not the
Comments.58 Others continue to use the formulation of the earlier ABA Code of
Professional Responsibility under which the issue does not arise.59 The pattern among
the federal courts is similarly diverse, since the vast majority have chosen to impose
standards compatible with those of the states in which they sit.
The United States Attorneys' Manual calls for disclosure in an apparently more
limited number of instances and alerts its prosecutors to the possible disciplinary
consequences within the Justice Department of a failure to comply:
In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court
held that the Federal courts' supervisory powers over the grand jury did not
include the power to make a rule allowing the dismissal of an otherwise valid
indictment where the prosecutor failed to introduce substantial exculpatory
evidence to a grand jury. It is the policy of the Department of Justice, however,
that when a prosecutor conducting a grand jury inquiry is personally aware of
substantial evidence that directly negates the guilt of a subject of the
investigation, the prosecutor must present or otherwise disclose such evidence
to the grand jury before seeking an indictment against such a person. While a
failure to follow the Department's policy should not result in dismissal of an
indictment, appellate courts may refer violations of the policy to the Office of
Professional Responsibility for review. UNITED STATES ATTORNEYS' MANUAL,
§9-11.233.
Comment; Pa.R.Prof.Conduct, R.3.3(d), R.3.8, Comment; R.I.R.Prof.Conduct, R.3.3(d),
R.3.8, Comment; S.C.App.Ct.R., R.407: R.3.3, R 3.8 Comment; Tex.State Bar R., Art.10,
§9: Tex.Code of Prof.Conduct, R.3.03(d), R.3.09, Comment; Utah R.Prof.Conduct, R.3.3(d),
R.3.8, Comment; Vt.R.Prof.Conduct, R.3.3(d), R.3.8, Comment; W.Va.R.Prof. Conduct,
R.3.3(d), R.3.8, Comment; Wis.S.Ct.R., R.20:3.3(d), R.20:3.8, Comment; Wyo.R. of
Prof.Conduct, R.3.3(d), R.3.8, Comment. See also, D.C.R. of Prof.Conduct, R.3.8: "The
prosecutor in a criminal case shall not . . . (g) In presenting a case to a grand jury,
intentionally interfere with the independence of the grand jury, preempt a function of the grand
jury, abuse the processes of the grand jury, or fail to bring to the attention of the grand jury
material facts tending substantially to negate the existence of probable cause."
57 Ala.R. of Prof.Conduct, R. 3.3, 3.8 Comment; Colo.R. of Prof.Conduct, R. 3.3, R.3.8
Comment; Mass.R. of Prof.Conduct, R. 3.3,.R. 3.8 Comment; Minn.R. of Prof.Conduct, R.
3.3, 3.8 Comment; Nev.S.Ct.R., RR.172, 179; N.J.Rules of Prof.Conduct, RPC 3.3, 3.8
Comment; N.C.R.Prof.Conduct R.3.3, R. 3.8 Comment; S.D.R. of Prof.Conduct, R. 3.3, 3.8
Comment; R. of S.Ct. of Va., Pt.6, §II, RR.R. 3.3, 3.8 Comment.
58 Idaho R. of Prof. Conduct, R. 3.3, R. 3.8; Ill.R. of Prof.Conduct, R.3.3, R.3.8; La.R. of
Prof. Conduct, R.3.3, R.3.8; Me.Code of Prof. Responsibility, R.3.3, R.3.8;
Mont.R.Prof.Conduct, R.3.3, R.3.8; Wash.R.Prof.Conduct, R.3.3, R.3.8.
59 Ga. Code of Prof.Responsibility; Iowa Code of Prof. Responsibility; Neb. Code of
Prof.Responsibility; N.Y. R. of Ct. §1200.35; Ohio Code of Prof. Responsibility; Ore. Code
of Prof.Responsibility; Tenn.S.Ct.R., R.8.

CRS-24
Prosecutors and Undercover Tactics
Rule 4.1(a) of the ABA Model Rules of Professional Conduct declares that “[i]n
the course of representing a client a lawyer shall not knowingly: (a) make a false
statement of material fact or law to a third person;” and Rule 8.4(c) that it “is
professional misconduct for a lawyer to . . . (c) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.” Its predecessors, Disciplinary Rules
DR7-102(A)(5) and DR1-102(A)(4) of the ABA Model Code of Professional
Responsibility are similarly worded. In one form or another, they are in effect in
virtually every jurisdiction.60
The Oregon Supreme Court has concluded that its versions of these two honesty
disciplinary rules apply to instances where private attorneys misidentify themselves
and make other false statements in the course of an undercover investigation of
possible fraud committed against a client, In re Gatti, 330 Ore. 517, 8 P.3d 966
(2000). Gatti had claimed the benefit of an “investigation exception” to the
prohibitions. The Oregon Attorney General and the United States Attorney for
Oregon argued the Court should recognize an exception for government undercover
60 Ala.R.Prof.Conduct, RR. 4.1(a), 6.4(c); AlaskaR.Prof.Conduct, RR.4.1(a), 8.4(c); Ariz.R
Prof.Conduct, ERR 4.1(a), 8.4(c); Ark.R.Prof.Conduct, RR. 4.1(a), 8.4(c); Colo.R. Prof.
Conduct, RR. 4.13(a), 8.4(c); Conn.R.Prof.Conduct, RR.4.1(a), 8.4(3); Del.R.Prof. Conduct,
RR.4.1(a), 8.4(c); D.C.R.Prof.Conduct, RR.4.3(a), 8.4(c); Fla.R. Prof.Conduct, RR. 4-
4.1(a), 4-8.4(c); Ga. Code of Prof.Responsibility, DR7-102(A)(5), DR1-102(A)(4); Haw.
R. Prof. Conduct, RR. 4.1(a), 8.4(c); IdahoR.Prof.Conduct, RR. 4.1,(a), 8.4(c); Ill.R.
Prof.Conduct, RR.4.1(a), 8.4(c); Ind.R.Prof. Conduct, RR.4.1(a), 8.4(c); Iowa Code of Prof.
Responsibility, DR 7-102(A)(5), DR1-102(A)(4); Kan.S.Ct.R., R. 226, Model R. of
Prof.Conduct, RR. 4.1(a), 8.4(c); Ky.S.Ct. R.3.130, R. of Prof. Conduct, RR.4.1, 8.3(c);
La.R. Prof. Conduct, RR.4.1, 8.4(c); Me.Code of Prof. Responsibility, RR.3.7(b), 3.2(f)(3);
Md.Lawyers' R.Prof. Conduct, R. 4.1(a)(1), 8.4(c); Mass.R. Prof. Conduct, RR. 4.1(a),
8.4(c); Mich.R. Prof. Conduct, RR. 4.1, 8.4(c); Minn.R. Prof.Conduct, RR. 4.1, 8.4(c);
Miss.R. Prof. Conduct, R4.1(a); Mo.R. Prof. Conduct, RR.4-4.1(a), 4-8.4(c); Mont.R.
Prof.Conduct, R.4.1(a), 8.4(c); Neb. Code of Prof.Responsibility, DR 7-102(A)(5), DR1-
102(A)(4); Nev.S.Ct.R., RR.181, 203; N.H.R.Prof. Conduct, RR.4.1(a), 8.4(c);N.J.Rules of
Prof. Conduct, RRPC 4.1(a)(1), 8.4(c); N.Mex.R. Prof.Conduct, RR.16-401, 16-804[C];
N.Y. R. of Ct. §§1200.33[DR7-102](a)(5), 1200.3[DR1-102](a)(4); N.C.R.Prof.Conduct
RR.4.1, 8.4(c); N.D.R.Prof.Conduct, R. 4.1;Ohio Code of Prof. Responsibility, DR7-
102(A)(5), DR1-102(A)(4); Okla.R.Prof.Conduct, RR.4.1(a), 8.4(c); Ore.Code of Prof.
Responsibility, DR7-102(A)(5), DR1-102(A)(3); Pa.R.Prof.Conduct, RR.4.1(a), 8.4(c);
R.I.R.Prof.Conduct, RR.4.1(a), 8.4(c); S.C.App.Ct.R., R.407: RR.4.1(a), 8.4(c);
S.D.Cod.Laws 16-18App., R. Prof.Conduct, RR.4.1, 8.4(d); Tenn.S.Ct.R., R.8:DR7-
102(A)(5), DR1-102(A)(5); Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct,
RR.4.01, 8.04(a)(3); Utah R.Prof. Conduct, RR.4.1(a), 8.4(c); Vt. R.Prof. Conduct, RR4.1,
8.4(c); R. of S.Ct. of Va., Pt.6, §II, RR.4.1(a), 8.4(c); Wash.R.Prof. Conduct, RR.4.1(a),
8.4(c); W.Va.R.Prof.Conduct, RR.4.1(a), 8.4(c); Wis.S.Ct.R., RR.20: 4.1(a), 20:8.4(c);
Wyo.R. of Prof. Conduct, RR.4.1(a), 8.4(c).

CRS-25
operations. The Court refused to recognize either exception, 330 Ore. at 530-33, 8
P.3d at 974-76. There are few comparable decisions elsewhere.61
Who Should Regulate the Ethics of Federal Prosecutors
Questions of undercover investigations, grand jury practice, and client contact
aside, the fundamental objection to the McDade-Murtha Amendment is its
preservation of the twin notions that federal prosecutors, like other lawyers, should
be bound by state regulation of the practice of law and that the rules governing the
practice of law in the federal courts should mirror the rules of the states in which they
sit, subject to modification by the federal courts in a particular district. It is a theme
that runs throughout federal law: compatibility versus uniformity. Should federal law
be the same nation wide or should attorneys in any given state be subject to different
ethical standards depending upon whether federal or state law governs a particular
case.
The alternatives for future Congressional action include provisions that: (1)
regulate the practice of law generally (an option with obvious constitutional
limitations), (2) regulate the ethical standards of federal attorneys, (3) delegate the
authority either to regulate the practice of law or to regulate the practice of law by
federal attorneys to (a) the states, (b) the federal courts, (c) the Attorney General, or
(d) some administrative rule making body like the Judicial Conference, or (4) address
no contact rule, grand jury practice, undercover questions individually.62
61 Gatti cites conflicting federal authority for whether private attorneys enjoy an investigation
exception, 330 Ore. at 531, 8 P.3d at 975, citing, “Apple Corps Ltd. v. International
Collectors Soc., 15 F.Supp.2d 456, 475 (D.N.J. 1998)(lawyers in private practice may use
an undercover investigator to detect ongoing violations rather of the law * * *, especially
where it would be difficult to discover the violations by other means). But see Sequa Corp.
v. Lititech Inc., 807 F.Supp. 653, 663 (D.Colo. 1992)(lawyers in private practice may not use
deception to investigate disciplinary violations rather than reporting conduct to authorities).”
In a related matter, the jurisdictions to consider the question generally recognize a law
enforcement exception for otherwise lawful wiretapping and electronic surveillance, see,
Wiretapping, Tape Recorders & Legal Ethics: Questions Posed by Attorney Involvement in
Secretly Recording Conversation, CRS REP. NO. 98-280 (Mar. 6, 1998).
62 The relative strengths and weaknesses of these alternatives are beyond the scope of this
report, see generally, Uniform Federal Rules of Attorney Conduct: A Flawed Proposal, 111
HARVARD LAW REVIEW 2063 (1998); A Call for a Uniform Standard of Professional
Responsibility in the Federal Court System: Is Regulation of Recalcitrant Attorneys at the
District Level Effective? 66 UNIVERSITY OF CINCINNATI LAW REVIEW 901 (1998); Green,
Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How
Should The Rules Be Created? 64 GEORGE WASHINGTON LAW REVIEW 460 (1996); Little,
Who Should Regulate the Ethics of Federal Prosecutors? 65 FORDHAM LAW REVIEW 355
(1996); Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who
Should Regulate the Regulators? Response to Little, 65 FORDHAM LAW REVIEW 429 (1996);
Developments in the Law — Lawyers' Responsibilities and Lawyers' Responses, 107
HARVARD LAW REVIEW 1547 (1994); Wilkins, Who Should Regulate Lawyers? 105
HARVARD LAW REVIEW 799 (1992); Abel, Why Does the ABA Promulgate Ethical Rules?,
59 TEXAS LAW REVIEW 639 (1981); AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW:

CRS-26
Appendices
Bibliography
Books & Articles
Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TEXAS LAW REVIEW 639 (1981)
AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW: THE LAW GOVERNING LAWYERS
(Council Draft No. 12)(1996)
Bowman, A Bludgeon by any Other Name: The Misuse of "Ethical Rules" Against
Prosecutors to Control the Law of the State, 9 GEORGETOWN JOURNAL OF LEGAL ETHICS
665 (1996)
Burke, Reconciling Professional Ethics and Prosecutorial Power: The No contact Rule
Debate, 46 STANFORD LAW REVIEW 1635 (1994)
Cramton & Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the
Anti-Contact and Subpoena Rules, 53 UNIVERSITY OF PITTSBURGH LAW REVIEW 291 (1992)
Delonis & Leibson, State Codes of Ethics and the Federal Lawyer: Refighting the Civil War,
48 FEDERAL LAWYER 23 (2001)
Dash, Justice Department Contacts With Represented Persons: An Alarming Assertion of
Power, 65 JUDICATURE 137 (1994)
Flowers, A Code of Their Own: Updating the Ethics Codes to Include the Non-Adversarial
Roles of Federal Prosecutors, 37 BOSTON COLLEGE LAW REVIEW 923 (1996)
Gleeson, Supervising Criminal Investigations: The Proper Scope of the Supervisory Power
of Federal Judges, 64 JOURNAL OF LAW AND POLICY 423 (1997)
Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little
Enforcement?, 64 ST. THOMAS LAW REVIEW 69 (1995)
, A Prosecutor's Communication With Defendants: What Are the Limits? 24 CRIMINAL
LAW BULLETIN 283 (1988)
, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and
How Should the Rules Be Created, 64 GEORGE WASHINGTON LAW REVIEW 460 (1996)
Lidge, Government Civil Investigators and the Ethical Ban on Communicating With
Represented Parties, 67 INDIANA LAW JOURNAL 549 (1992)
Little, Who Should Regulate the Ethics of Federal Prosecutors, 65 FORDHAM LAW REVIEW
355 (1996)
THE LAW GOVERNING LAWYERS (Council Draft No. 12)(1996).
Legislative proposals in the 107th Congress are discussed in a separate report entitled
McDade-Murtha Amendment: Legislation in the 107th Congress Concerning Ethical
Standards for Justice Department Litigators, CRS REP. NO. RL (Dec. 18, 2001).

CRS-27
Mashburn, A Clockwork Orange Approach to Legal Ethics: A Conflicts Prospective on the
Regulation of Lawyers by Federal Courts, 8 GEORGETOWN JOURNAL OF LEGAL ETHICS 473
(1995)
Morton, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal,
or Discipline, 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083 (1995)
Thornburgh, Ethics and the Attorney General: The Attorney General Responds, 74
JUDICATURE 290 (1994)
United States Congress, Ethical Standards for Federal Prosecutors Act of 1996: Hearings
Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the
Judiciary, 104th Cong., 2d Sess. (1996)
, Exercise of Federal Prosecutorial Authority in a Changing Legal Environment:
Hearing Before the Government Information, Justice and Agriculture Subcomm. of the
House Comm. on Government Operations, 101st Cong., 2d Sess. (1990)
United States Department of Justice, Attorney General Reno, Communications with
Represented Persons: Supplementary Information, 59 Fed.Reg. 39,928 (1994)
, Attorney General Thornburgh, Memorandum to All Justice Department Litigators . . .
[In re] Communication with Persons Represented by Counsel (June 8, 1989), appended to,
In re Doe, 801 F.Supp. 478, 489-93 (D.N.M. 1992)
, Office of Legal Counsel, Ethical Restraints of the ABA Code of Professional
Responsibility on Federal Criminal Investigations, 4B OPINIONS OF THE OFFICE OF LEGAL
COUNSEL 576 (1980)
, UNITED STATES ATTORNEYS MANUAL
, CRIMINAL RESOURCE MANUAL
Wilkins, Who Should Regulate Lawyers? 105 HARVARD LAW REVIEW 799 (1992)
Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys, 76
MINNESOTA LAW REVIEW 917 (1992)
, Federalizing Legal Ethics, 73 TEXAS LAW REVIEW 335 (1994)
, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice, 44
VANDERBILT LAW REVIEW 45 (1991)
, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who Should Regulate
the Regulators? Response to Little, 65 FORDHAM LAW REVIEW 429 (1996)
Zacharias & Green, The Uniqueness of Federal Prosecutors, 88GEORGETOWN LAW
JOURNAL 207 (2000)
Notes & Comments
The Big Chill: Negative Effects of the McDade Amendment and the Conflict Between
Federal Statutes, 14 GEORGETOWN JOURNAL OF LEGAL ETHICS 707 (2001)

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A Call for a Uniform Standard of Professional Responsibility in the Federal Court System:
Is Regulation of Recalcitrant Attorneys at the District Level Effective? 66 UNIVERSITY OF
CINCINNATI LAW REVIEW 901 (1998)
The Continuing Conflict Over the Application of Model Rule 4.2 to Federal Attorneys, 44
AMERICAN UNIVERSITY LAW REVIEW 855 (1995)
Developments in the Law — Lawyers' Responsibilities and Lawyers' Responses, 107
HARVARD LAW REVIEW 1547 (1994)
FBA Questions Measure Targeting Federal Prosecutors, 45 FEDERAL LAWYER 5 (1998)
Federal Prosecutor, State Ethics Regulations, and the McDade Amendment, 113 HARVARD
LAW REVIEW 2080 (2000)
The Federal Prosecutors Ethics Act: Solution or Revolution, 86 IOWA LAW REVIEW 1251
(2001)
Federalizing the No contact Rule: The Authority of the Attorney General, 33 AMERICAN
CRIMINAL LAW REVIEW 189 (1995)
Is DoJ Above the Rules? The Department's Bid to Exempt Lawyers From Contact Rules Is
Blasted by States' Chief Justices, 84 AMERICAN BAR ASSOCIATION JOURNAL 26 (November
1997)
Lawyers Ethics—One Size Fits All? A Judicial Conference Committee Proposes Standard
Rules for Federal Courts, 84 AMERICAN BAR ASSOCIATION JOURNAL 28 (July 1998)
Limiting the Prosecutor's Use of Informants: The Second Circuit's Misreading of DR 7-
104(A)(1), 67 WASHINGTON UNIVERSITY LAW QUARTERLY 613 (1989)
Prosecutorial Ethics Under the Reno Rule: Authorized by Law?, 14 CRIMINAL JUSTICE
ETHICS 17 (1995)
Reconciling Professional Ethics and Prosecutorial Power: The No contact Rule Debate, 46
STANFORD LAW REVIEW 1635 (1994)
Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or
Discipline, 7 GEORGETOWN JOURNAL OF LEGAL ETHICS 1083 (1994)
Uniform Federal Rules of Attorney Conduct: A Flawed Proposal, 111 HARVARD LAW
REVIEW 2063 (1998)
Who Has the Last Word? An Examination of the Authority of State Grievance Committees
to Investigate and Discipline Prosecutors for Breach of Ethics, 22 JOURNAL OF THE LEGAL
PROFESSION 201 (1998)
Wisdom Without Power: The Department of Justice's Attempt to Exempt Federal
Prosecutors from State No contact Rules, 71 NEW YORK UNIVERSITY LAW REVIEW 1067
(1996)

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State Standards of Professional Conduct
The No Contact Rule
Alabama: Ala.R. of Prof.Conduct, R. 4.2: 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.
Alaska: Alaska R. of Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party or person 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.
Arizona: Ariz.R. of Prof.Conduct, ER 4.2: 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.
Arkansas: Ark.R. of Prof.Conduct, R. 4.2: 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.
California: Cal.R. of Prof.Conduct, R. 2-100: (A) While representing a client, a member shall
not communicate directly or indirectly about the subject of the representation with a party the
member knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer.
(B) For purposes of this rule, a "party": includes: (1) An officer, director, or managing
agent of a corporation or association, and a partner or managing agent of a partnership; or (2)
An association member or an employee of an association, corporation, or partnership, if the
subject of the communication is any act or omission of such person in connection with the
matter which may be binding upon or imputed to the organization for purposes of civil or
criminal liability or whose statement may constitute an admission on the part of the
organization.
(C) This rule shall not prohibit: (1) Communications with a public officer, board,
committee, or body; (2) Communications initiated by a party seeking advice or representation
from an independent lawyer of the party's choice; or (3) Communications otherwise authorized
by law.
Colorado: Colo.R. of Prof.Conduct, R. 4.2: 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.
Connecticut: Conn.R. of Prof.Conduct, R. 4.2: 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.
Delaware: Del.R. of Prof.Conduct, R. 4.2: 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.

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District of Columbia: D.C.R. of Prof.Conduct, R.4.2: (a) During the course of representing
a client, a lawyer shall not communicate or cause another to communicate about the subject
of the representation with a party known to be represented by another lawyer in the matter,
unless the lawyer has the consent of the lawyer representing the other party or is authorized
by law to do so.
(b) During the course of representing a client, a lawyer may communicate about the
subject of the representation with a nonparty employee of the opposing party without
obtaining the consent of that party's lawyer. However, prior to communicating with any such
nonparty employee, a lawyer must disclose to such employee both the lawyer's identity and
the fact that the lawyer represents a party with a claim against the employee's employer.
(c) For purposes of this Rule, the term `party' includes any person, including an
employee of a party organization, who has the authority to bind a party organization as to the
representation to which the communication relates.
(d) This Rule does not prohibit communications by a lawyer with government officials
who have the authority to redress the grievances of the lawyer's client, whether or not those
grievances or the lawyer's communications relate to matters that are the subject of the
representation, provided that in the event of such communications the disclosures specified in
(b) are made to the government official to whom the communication is made.
Florida: Fla.R. of Prof.Conduct, R. 4-4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person 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. Notwithstanding the foregoing, an attorney may,
without such prior consent, communicate with another's client in order to meet the
requirements of any statute or contract requiring notice or service of process directly on an
adverse party, in which event the communication shall be strictly restricted to that required
by statute or contract, and a copy shall be provided to the adverse party's attorney.
Georgia: Ga.State Bar R., R.4-102, R .4.2: (a) A lawyer who is representing a client in a
matter shall not communicate about the subject of the representation with a person 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 to do so by constitutional law or statute.
(b) Attorneys for the State and Federal Government shall be subject to this Rule in the
same manner as other attorneys in this State.
The maximum penalty for a violation of this Rule is disbarment.
Hawaii: Haw. R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person 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.
Idaho: Idaho R. of Prof. Conduct, R.4.2: 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.
Illinois: Ill.R. of Prof.Conduct, R. 4.2: During the course of representing a client a lawyer
shall not communicate or cause another to communicate on the subject of the representation
with a party the lawyer knows to be represented by another lawyer in the matter, unless the
first lawyer has obtained the prior consent of the lawyer representing such other party or as
may otherwise be authorized by law.

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Indiana: Ind.R. of Prof.Conduct, R. 4.2: 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.
Iowa: Iowa Code of Prof. Responsibility, DR 7-104(A)(1): (A) During the course of his
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party known to be represented by a
lawyer in that matter except with the prior consent of the lawyer representing such other party
or as authorized by law.
Kansas: Kan.S.Ct.R., R. 226, Model R. of Prof.Conduct, R. 4.2: 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.
Kentucky: Ky.S.Ct.R., R. of Prof. Conduct, R. 4.2: 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.
Louisiana: La.R. of Prof. Conduct, R. 4.2: 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 lawyer shall not effect the prohibited
communication through a third person, including the lawyer's client.
Maine: Me.Code of Prof. Responsibility, R 3.6(f): During the course of representation of a
client, a lawyer shall not communicate or cause another to communicate on the subject of the
representation with a party the lawyer knows to be represented by a lawyer in that matter
unless the lawyer has the prior consent of the lawyer representing such other party or is
authorized by law to do so.
Maryland: Md.Lawyers' R. of Prof. Conduct, R. 4.2: 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.
Massachusetts: Mass.R. of Prof.Conduct, R. 4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person 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.
Michigan: Mich.R. of Prof.Conduct, R. 4.2: 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.
Minnesota: Minn.R. of Prof.Conduct, R. 4.2: 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

CRS-32
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.
Mississippi: Miss.R. of Prof. Conduct, R.4.2: 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.
Missouri: Mo.St.Ct.R., R.4-4.2: 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.
Montana: Mont.R.Prof.Conduct, R.4.2: 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.
Nebraska: Neb.Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his
or her representation of a client, a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party he knows to be represented by
a lawyer in that matter unless he has the prior consent of the lawyer representing such other
party or is authorized by law to do so.
Nevada: Nev.S.Ct.R., R.182: 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.
New Hampshire: N.H.R.Prof.Conduct, R.4.2: 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.
New Jersey: N.J.Rules of Prof.Conduct, RPC 4.2 In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows, or by
the exercise of reasonable diligence should know, to be represented by another lawyer in the
matter, including members of an organization's litigation control group as defined by RPC
1.13, unless the lawyer has the consent of the other lawyer or is authorized by law to do so,
or unless the sole purpose of the communication is to ascertain whether the person is in fact
represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the
person as to whether that person is represented by counsel. Nothing in this rule shall,
however, preclude a lawyer from counseling or representing a member or former member of
an organization's litigation control group who seeks independent legal advice.
New Mexico: N.Mex.R.Prof.Conduct, R. 16-402: 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. Except for persons having a managerial
responsibility on behalf of the organization, an attorney is not prohibited from communicating
directly with employees of a corporation, partnership or other entity about the subject matter
of the representation even though the corporation, partnership or other entity itself is
represented by counsel.

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New York: N.Y. R. of Ct. §1200.35 [DR 7-104] : (A) During the course of his representation
of a client a lawyer shall not: (1) Communicate or cause another to communicate on the
subject of the representation with a party he knows to be represented by a lawyer in that
matter unless he has the prior consent of the lawyer representing such other party or is
authorized by law to do so.
North Carolina: N.C.R.Prof.Conduct R.4.2: During the representation of 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. It is not a violation of this Rule for a lawyer
to encourage his or her client to discuss the subject of the representation with the opposing
party in a good faith attempt to resolve the controversy.
North Dakota: N.D.R.Prof.Conduct R.4.2: 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.
Ohio: Ohio Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party he knows to be represented by
a lawyer in that matter unless he has the prior consent of the lawyer representing such other
party or is authorized by law to do so.
Oklahoma: Okla.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate, or cause another to 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.
Oregon: Ore. Code of Prof.Responsibility DR 7-104(A)(1): (A) During the course of his or
her representation of a client, a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation, or on directly related subjects, with a person
he knows to be represented by a lawyer in that subject, or on directly related subjects, unless
(a) the lawyer has the prior consent of the lawyer representing such other party; the lawyer
is authorized by law to do so; or (c) a written agreement requires a written notice or demand
to be sent to such other person, in which case a copy of such notice or demand shall also be
sent to such other person's lawyer.
Pennsylvania: Pa.R.Prof.Conduct, R.4.2: 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.
Rhode Island: R.I.R.Prof.Conduct, R.4.2: 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.
South Carolina: S.C.App.Ct.R., R.407: 4.2: 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.

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South Dakota: S.D.R.Prof.Conduct, R.4.2: 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.
Tennessee: Tenn.S.Ct.R., R.8: DR 7-104(A)(1): During the course of a lawyer's
representation of a client a lawyer shall not: (1) Communicate or cause another to
communicate on the subject of the representation with a party the lawyer knows to be
represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer
representing such other party or is authorized by law to do so.
Texas: Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct, R.4.02: (a) In representing
a client, a lawyer shall not communicate or cause or encourage another to communicate about
the subject of the representation with a person, organization or entity of government the
lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer
has the consent of the other lawyer or is authorized by law to do so.
(b) In representing a client, a lawyer shall not communicate or cause another to
communicate about the subject of the representation with a person or organization the lawyer
knows to be employed or retained for the purpose of conferring with or advising another
lawyer about the subject of the representation, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
(c) For the purpose of this rule, "organization or entity of government" includes: (1)
those persons presently having a managerial responsibility with an organization or entity of
government that relates to the subject of the representation, or (2) those persons presently
employed by such organization or entity and whose act or omission in connection with the
subject of representation may make the organization or entity of government vicariously liable
for such act or omission.
(d) When a person, organization, or entity of government that is represented by a lawyer
in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not
prohibited by paragraph (a) from giving such advice without notifying or seeking consent of
the first lawyer.
Utah: Utah R.Prof.Conduct, R.4.2: (a) General Rule. A lawyer who is representing a client,
in a matter shall not communicate about the subject of the representation with a person 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: (1) constitutional law or statute; (2) decision
or a rule of a court of competent jurisdiction; (3) a prior written authorization by a court of
competent jurisdiction obtained by the lawyer good faith; or (4) paragraph (b) of this rule.
(b) Rules Relating to Government Lawyers Engaged in Civil or Criminal Law
Enforcement. A government lawyer engaged in a criminal or civil law enforcement matter,
or a person acting under the lawyer’s direction in the matter, may communciate with a persion
known to be represented by a lawyer if:
(1) the communciation is in the course of, and limited to, an investigation of a different
matter unrelated to the representation or any ongoing, unlawful conduct; or
(2) the communication is made to protect against imminent risk of death or serious
bodily harm or substantial property damage that the government lawyer reasonably relieves
may occur, and the communciation is limited to those matters necessary to protect against the
imminent risk; or
(3) the communciation is made at the time of the arrest of the represented person and
after he or she is advised of his or her rights to remain silent and to counsel and voluntarily
and knowingly waives these rights; or
(4) the communication is initiated by the represented person, directly or through an
intermediary, if prior to the communciation the represented person has given a written or

CRS-35
recorded voluntary and informed wiaver of counsel, including the right to have substitute
counsel, for that communciation.
(c) Orgniazaitons as Represented Persons. (1) When the represented “person” is an
organization, an individual is “represented” by counsel for the organization if the individual
is not separately represented with respect to the subject matter of the communciation, and
(A) with respect to a communcation by a government lawyer in a civil or criminal law
enforcement matter, is known by the government lawyer to be a current member of the control
group of the represented organization; or
(B) with respect to a communication by a lawyer in any other matter, is known by the
lawyer to be (i) a current member of the control group of the represented organization; or (ii)
a reprsentative fo the organizaiton whose acts or omissions in the matter may be imputed to
the organization under applicable law; or (iii) a representative of the organization whose
statements under applicable rules of evidence would have the effect of binding the
organization with respect to proof of the matter.
(2) The term “contorl group” means the following persons: (A) the chief executive
officer, chief operating officer, chief financial officer, and chief legal officer of the
organization; and (B) to the extent not encompassed by the foregoing, the chair of the
organization’s governing body, president, treasurer, and secretary, and a vice-president or
vice-chair who is in charge of a princial business unit, division, or function (such as sales,
adminstration, or finance) or performs a major policy making function for hte organization;
and (C) any other current employee or official who is known to be participating as a principal
decision maker in the detemination of the organization’s legal position in the matter.
(3) This rule does not apply to communications with government parties, employees, or
officials unless litigation about the subject of the representation is pending or imminent.
Communications with eleected officials on policy matters are permissible when litigation is
pending or imminent after disclosure of hte representation to the official.
(D) Limitations on Communciations. When communicating with a represented person
pursuant to this Rule, no lawyer may (1) inquire aobut privileged communciaitons between
the person and counsel or about information regarding litigation strategy or legal arguments
of counsel, or seek to induce the person to forego representation or disregard the advice of the
person’s counsel; or
(2) engage in negotations of a plea agreement, settlement, statutory or nonstauttory
immunity agreement, or other disposition of actual or potential criminal charges or civil
enforcement claims, or sentences or penalties with repsect to the matter in which the person
is represented by counsel unless such negotiations are permitted by paragraphs (a)(1), (2) or
(3), or (b)(4).

Vermont: Vt.D.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a person 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.
Virginia: Va.,R.Prof.Conduct, R.4.2: In representing a client, alwyer shall not communicate
about the subjectj of the representation with a person that 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.
Washington: Wash.R.Prof.Conduct, R.4.2: 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.
West Virginia: W.Va.R.Prof.Conduct, R.4.2: In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be

CRS-36
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.
Wisconsin: Wis.S.Ct.R., R.4.2: 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.
Wyoming: Wyo.R. of Prof.Conduct, R. 4.2: 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.
Grand Jury Exculpatory Evidence Rule
Alaska: Alaska R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which are necessary to enable the
tribunal to make an informed decision, including facts are adverse to the lawyer’s position.
R.3.8, Comment “A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.”
Arizona: Ariz.R. of Prof.Conduct, ER 3.3(d): In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Arkansas: Ark.R. of Prof.Conduct, R. 3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Connecticut: Conn.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Delaware: Del.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included."
District of Columbia: D.C.R. of Prof.Conduct, R.3.8: The prosecutor in a criminal case
shall not . . . (g) In presenting a case to a grand jury, intentionally interfere with the

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independence of the grand jury, preempt a function of the grand jury, abuse the processes of
the grand jury, or fail to bring to the attention of the grand jury material facts tending
substantially to negate the existence of probable cause.
Florida: Fla.R. of Prof.Conduct, R. 4-3.3: In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
R. 4-3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 4-3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Indiana: Ind.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Kansas: Kan.S.Ct.R., R. 226, Model R. of Prof.Conduct, R. 3.3(d): In an ex parte
proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which
will enable the tribunal to make an informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Kentucky: Ky.S.Ct.R., R. of Prof. Conduct, R.3.3(d): In an ex parte proceeding, a lawyer
shall inform the tribunal of all material facts known to the lawyer which will enable the
tribunal to make an informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Maryland: Md.Lawyers' R. of Prof. Conduct, R. 3.3(d): In an ex parte proceeding, a lawyer
shall inform the tribunal of all material facts known to the lawyer which will enable the
tribunal to make an informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Michigan: Mich.R. of Prof.Conduct, R. 3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Mississippi: Miss.R. of Prof. Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.

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Missouri: Mo.St.Ct.R., R.4-3.3(d): In an ex parte proceeding, a lawyer shall inform the
tribunal of all material facts known to the lawyer which will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
New Hampshire: N.H.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
New Mexico: N.Mex.R.Prof.Conduct, R. 16-303D.: In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.13-308, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d) [16-303D], governing ex parte
proceedings, among which grand jury proceedings are included.
North Dakota: N.D.R.Prof.Conduct, R.3.3(f): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(f), governing ex parte proceedings, among
which grand jury proceedings are included.
Oklahoma: Okla.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Pennsylvania: Pa.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
R.3.8, Comment " A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Rhode Island: R.I.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform
the tribunal of all material facts known to the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
South Carolina: S.C.App.Ct.R., R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a
lawyer shall inform the tribunal of all material facts known to the lawyer which will enable
the tribunal to make an informed decision, whether or not the facts are adverse.

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R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
South Dakota: S.D.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Texas: Tex.State Bar R., Art.10, §9: Tex.Code of Prof.Conduct, R.3.03(a): A lawyer shall
not knowingly . . . (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged
fact which the lawyer reasonably believes should be known by that entity for it to make an
informed decision.
R.3.09, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.03(a)(3), governing ex parte proceedings,
among which grand jury proceedings are included.
Utah: Utah R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform the
tribunal of all material facts known to the lawyer which will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Vermont: Vt..R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall inform the
tribunal of all material facts known to the lawyer which will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
West Virginia: W.Va.R.Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.
Wisconsin: Wis.S.Ct.R., R.20:3.3(d): In an ex parte proceeding, a lawyer shall inform the
tribunal of all material facts known to the lawyer which will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
R.20:3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 20:3.3(d), governing ex parte proceedings,
among which grand jury proceedings are included.
Wyoming: Wyo.R. of Prof.Conduct, R.3.3(d): In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer which will enable the tribunal to
make an informed decision, whether or not the facts are adverse.
R.3.8, Comment "A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate . . . See also Rule 3.3(d), governing ex parte proceedings, among
which grand jury proceedings are included.

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Grand Jury Subpoena Rules
Alaska: Alaska R. of Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall: . . . (f)
not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about
a past or present client unless: (1) the prosecutor reasonably believes: (i) the information
sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought
is essential to the successful completion of an ongoing investigation or prosecution; (iii) there
is no other feasible alternative to obtain the information; and (2) the prosecutor obtains prior
judicial approval after an opportunity for an adversarial proceeding.
Colorado: Colo.R. of Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall: . . . (f)
not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence abut
a past or present client unless: (1) the prosecutor reasonably believes: (i) the information
sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought
is essential to the successful completion of an ongoing investigation or prosecution; and (iii)
there is no other feasible alternative to obtain the information.
Georgia: Ga.State Bar R., R.4-102, R .3.8: The prosecutor in a criminal case . . . (f) not
supoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past
or present client unless the proscutor reasonably believes: (1) the information sought is not
protected from disclosure by any applciable privilege; (2) the evidence sought is essential to
the successful completion of an ongoing investigation or prosecution; and (3) there is no other
feasible alternative to obtain the information.
Louisiana: La.R. of Prof. Conduct, R. R. 3.8: The prosecutor in a criminal case shall: . . . (f)
Not, except in habitual offender proceedings for the purpose of identification only, or in a post
conviction proceeding on the issue of competency of counsel raised by his/her former client,
subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a
past or present client unless: (1) the prosecutor reasonably believes: (i) the information sought
is not protected from disclosure by any applicable privilege; (ii) the evidence sought is
essential to the successful completion of an ongoing investigation or prosecution; and (iii) the
purpose of the subpoena is not to harass the attorney or his or her client.
Massachusetts: Mass.R. of Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall .
. . (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence
about a past or present client unless: (1) the prosecutor reasonably believes: (i) the information
sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought
is essential to the successful completion of an ongoing investigation or prosecution; and (iii)
there is no other feasible alternative to obtain the information; and (2) the prosecutor obtains
prior judicial approval after an opportunity for an adversarial proceeding. In representing a
client, a lawyer shall not communicate about the subject of the representation with a person
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.
North Carolina: N.C.R.Prof.Conduct R. 3.8: The prosecutor in a criminal case shall: . . . (f)
not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about
a past or present client unless: (1) the information sought is not protected from disclosure by
any applicable privilege; (2) the evidence sought is essential to the successful completion of
an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain
the information.
Oklahoma: Okla.R.Prof.Conduct, R. 3.8: The prosecutor in a criminal case shall: . . . (g) not
subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a

CRS-41
past or present client unless: (1) the information sought is not protected from disclosure by
any applicable privilege; (2) the evidence sought is essential to the successful completion of
an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain
the information. The lawyer upon whom a subpoena is served shall be afforded a reasonable
time to file a motion to quash compulsory process of his/her attendance. Whenever a
subpoena is issued for a lawyer who then moves to quash it by invoking attorney/client
privilege, the prosecutor may not press further in any proceeding for the subpoenaed lawyer's
appearance as a witness until an adversary in camera hearing has resulted in a judicial ruling
which resolves all the challenges advanced in the lawyer's motion to quash.
Pennsylvania: Pa.R.Prof.Conduct, R.3.10: A public prosecutor or other government lawyer
shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury
or other tribunal investigating criminal activity in circumstances where the prosecutor or other
governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a
person who is or has been represented by the attorney witness.
Rhode Island: R.I.R.Prof.Conduct, R.3.8: The prosecutor in a criminal case shall: . . . (f) not,
without prior judicial approval, subpoena a lawyer for the purpose of compelling the lawyer
to provide evidence concerning a person who is or was represented by the lawyer when such
evidence was obtained as a result of the attorney-client relationship.
South Carolina: S.C.App.Ct.R., R.Prof.Conduct, R.3.8: The prosecutor in a criminal case
shall: . . . (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present
evidence about a past or present client unless: (1) the information sought is not protected from
disclosure by any applicable privilege; (2) the evidence sought is essential to the successful
completion of an ongoing investigation or prosecution; and (3) there is no other feasible
alternative to obtain the information.
Tennessee: Tenn.S.Ct.R., R.8: DR 7-103(C): It is unprofessional conduct for a prosecutor
to subpoena an attorney to the grand jury or to any state or federal administrative body with
a similar function without prior judicial approval in circumstances where the prosecutor or
such other government attorney seeks to compel the attorney-witness to provide evidence
concerning a person who at the time is represented by the attorney-witness.
Vermont: Vt..R.Prof.Conduct, R.3.8: R.3.8:The prosecutor in a criminal case shall: . . . (f)
not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about
a past or present client unless: (1) the information sought is not protected from disclosure by
any applicable privilege; (2) the evidence sought is essential to the successful completion of
an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain
the information.
United States District Court Rules:
Standards of Attorney Conduct
Alabama
N.D.Ala.Local R., LR83.1(f)(“Each attorney who is admitted to the bar of this court or
who appears in this court pursuant to subsection (b) or (c) of this Rule is required to be
familiar with, and shall be governed by, the Local Rules of this court and, to the extent not
inconsistent with the preceding, the Alabama Rules of Professional Conduct adopted by the
Alabama Supreme Court and, to the extent not inconsistent with the preceding, the American
Bar Association Model Rules of Professional Conduct, except Rule 3.8(f) thereof [relating to
grand jury subpoenas]”)

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M.D.Ala.Local R., LR83.1(f)(“Attorneys admitted to practice before this Court shall
adhere to this Court's Local Rules, the Alabama Rules of Professional Conduct, the Alabama
Standards for Imposing Lawyer Discipline, and, to the extent not inconsistent with the
preceding, the American Bar Association Model Rules of Professional Conduct”)
S.D.Ala.Local R., LR83.5(f)(“Any attorney who is admitted to the Bar of this Court or
who appears in this court pursuant to subsection (b), (c), (d) or (e) of this rule shall agree to
read and abide by the Local Rules of this Court, the ethical limitations and requirements
governing the behavior of members of the Alabama State Bar, and, to the extent not
inconsistent with the preceding, the American Bar Association Model Rules of Professional
Conduct”)
Alaska
D.Alaska R., LR 83.1(h)(“Every member of the bar of this court and any attorney
admitted to practice in this court under D.Ak.LR 83.1(c)-(d) shall be familiar with and comply
with the Standards of Professional Responsibility required of the members of the State Bar
of Alaska and contained in the Alaska Rules of Professional Conduct and decisions of any
court applicable thereto, except insofar as such rules and decisions shall be otherwise
inconsistent with federal law . . .”)
Arizona
D.Ariz.R. R.1.6(d)(“The ‘Rules of Professional Conduct,’ in the Rules of the Supreme
Court of the State of Arizona, shall apply to attorneys admitted or otherwise authorized to
practice before the United States District Court for the District of Arizona”)
Arkansas
E.D.Ark. & W.D.Ark.R, LR 83.5(e)(“All persons enrolled as attorneys in either of these
courts shall be subject to the Uniform Federal Rules of Disciplinary Enforcement, which are
hereby adopted and included in the Appendix to these rules.”)
Model Fed.R. of Disc.Enf., R.IV.B. (“. . . The Code of Professional Responsibility or
rules of Professional Conduct adopted by this Court is the Code of Professional Responsibility
or Rules of Professional Conduct adopted by the highest court of the state in which this Court
sits, as amended from time to time by that state court, except as otherwise provided by
specific Rule of this Court after consideration of comments by representatives of bar
associations within the state”)
California
C.D.Cal.Local R., Ch.VII. R1.2. (“In order to maintain the effective administration of
jsutice and the integrity of hte ocurt, each attorney shall become familiar with and comply
with the standards of professional conduct required of members of the State Bar of California
and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of
California and the decisions of any curt applicable thereto. These statutes, rules and decisions
are hereby adopted as the standards of professional conduct, and any breach or violationt
hereof may be the basis for the imposition of discipline. The Model Code of Professional
Responsibility of the American Bar Association may be considered guidance.”)
E.D.Cal.Local R., Civ.L.R. 83-180(e)(“Every member of the Bar of this Court and any
attorney permitted to practice in this Court under subsection (b) shall become familiar with
and comply with the standards of professional conduct required of members of the State Bar
of California and contained in the State Bar Act, the Rules of Professional Conduct of the
State Bar of California and the decisions of any Court applicable thereto, which are hereby
adopted as standards of professional conduct in this Court. In the absence of an applicable
standard therein, the Model Code of Professional Responsibility of the American Bar
Association may be considered guidance. No attorney admitted to practice before this Court
shall engage in any conduct which degrades or impugns the integrity of the Court or in any
manner interferes with the administration of justice”)

CRS-43
E.D.Cal.Local R., L.R.Crim. 50-400(a) (“The general rules ending in 100 to 199. . . are
fully applicable inc riminal cases in the absence of a specific criminal rule directly on point”)
N.D.Cal.Civ.Local R., CivilL.R. 11-4(a)(“Every member of the bar of this Court any
any attorney permitted to practice in this Court under Civil L.R. 11 must: (1) Be familar and
comply with the standards of professional conduct required of members of the State Bar of
California”)
N.D.Cal.Crim.Local R., Crim.L.R. 2.1(“. . . The provisi0ons of the Civil Local Rules
of the Court shall apply to criminal actions and proceedings, except where they may be
inconsistent with these criminal local rules, the Federal Rules of Criminal Procedure or
provisions of law specifically applicable to criminal cases”)
S.D.Cal.Civ.Local R., LR83.4.b. (“Every member of the bar of this court and any
attorney permitted to practice in this Court shall become familiar with and comply with the
standards of professional conduct required of members of the State Bar of California and
contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of
California, and decisions of any court applicable thereto, which are hereby adopted as
standards of professional conduct in this court. This specification shall not be interpreted to
be exhaustive of the standards of profession conduct. In that connection, the Code of
Professional Responsibility of the American Bar Association should be noted. No attorney
admitted to practice before this Court shall engage in any conduct which degrades or impugns
the integrity of the Court or in any manner interferes with the administration of justice.”)
S.D.Cal.Crim.Local Rules, Crim.L.R. 1.1[e.] (“The provosions of the following Civil
Local Rules shall apply to criminal actions and proceedings, except where they may be
inconsistent with the Federal Rules of Criminal procedure or provisions of law specifically
applicable to criminal cases: . . . 21. Rule 83.4. . . .”)
Colorado
D.Colo.Local R., LR 83.6 (“The rules of professional conduct, as adopted by the
Colorado Supreme Court, are adopted as standards of professional responsibility applicable
in this court”)
Connecticut
D.Conn.Local R.Civ.P., R.3(a)1.(“Other than the specific Rules enumerated in Rule
3(a)2 of these Local Rules [identifying Conn.R.Prof.Conduct 3.6, 3.7(b) relating to ], this
Court recognizes the authority of the Rule of Professional Conduct as approved by the Judges
of the Connecticut Superior Court as in effect on November 1, 1997, as expressing the
standards of professional conduct expected of lawyers practicing in the District of
Connecticut”)
D.Conn.Local.R.Crim.P., R.1(c) (“The following Local Civil Rules shall apply in
criminal proceedings: Rule . . . 3 (Discipline of Attorneys) . . . .”)
Delaware
D.Del.Local R.Civ.P.&P., R.83.6(d)(2)(“Acts or omissions by an attorney admitted to
practice before this Court, individually or in concert with any other person or persons, which
violate the Model Rules of Professional Conduct of the American Bar Association, subject to
such modifications as may be required or permitted by Federal statute, court rule or decision
of law, shall constitute misconduct and be grounds for discipline, whether or not the act or
omission occurred in the course of an attorney-client relationship”)
District of Columbia
D.D.C.Local R., LCvR.83.15(a), LCrR.57.26(a) (“Violations of the Rules of
Professional Conduct (as adopted by the District of Columbia Court of Appeals except as
otherwise provided by specific Rule of this Court) by attorneys subject to these Rules shall
be grounds for discipline, whether or not the act or omission occurred in the course of an
attorney-client relationship”).

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Florida
N.D.Fla.Gen.R., R.11.1(G)(1)(“Except where an act of Congress, federal rule of
procedure, Judicial Conference Resolution or rule of court provides otherwise, the
professional conduct of all members of the bar of this district shall be governed by the Rules
of Professional Conduct of the Rules Regulating the Florida Bar”)
M.D.Fla.R., R.2.02(c)(“Any attorney who appears specially in this Court pursuant
subsections (a) or (b) of this rule shall be deemed to be familiar with, and shall be governed
by, these rules in general, including Rule 2.04 hereof in particular; and shall also be deemed
to be familiar with and governed by the Code of Professional Responsibility and other ethical
limitations or requirements then governing the professional behavior of members of the Florida
Bar”)
S.D.Fla.Local R., Gen.R., R.11.1(C)(“The standards of professional conduct of
members of the Bar of this Court shall include the current Rules Regulating The Florida Bar”)
Georgia
N.D.Ga.Civ.Local R., LR 83.1C (“All lawyers practicing before this court shall be
governed by and shall comply with the specific rules of practice adopted by this court and,
unless otherwise provided, with the Code of Professional Responsibility and the Standards of
Conduct contained in the Rules and Regulations of the State Bar of Georgia and with the
decisions of this court interpreting these rules and standards”)
N.D.Ga.Crim.Local R., LCrR 57.1C (“Refer to LR.83.1C”)
M.D.Ga.Local R., LR 83.2.1 (“. . . Attorneys practicing before this Court shall be
governed by this Court's Local Rules, by the Rules of Professional Conduct adopted by the
highest court of the state in which this Court sits, as amended from time to time by that state
court, and to the extent not inconsistent with the preceding, the American Bar Association
Model Rules of Professional Conduct, except as otherwise provided by specific Rule of this
Court”)
S.D.Ga.Local R., LR 83.5(d) (“The standards of professional conduct of the members
of the bar of this Court shall include the current canons of professional ethics of the American
Bar Association. A violation of any of these rules in connection with any matter pending
before this Court may constitute a contempt of this Court potentially subjecting such attorney
to appropriate disciplinary action”)
Hawaii
D.Haw.Gen.R.& Civ.R., LR 83.3(“Every member of the bar of this court and any
attorney permitted to practice in this court pursuant to LR 83.1(d) shall be governed by and
shall observe the standards of professional and ethical conduct required of members of the
Hawaii State Bar, except as follows: [Rule 1.6 relating to confidentiality of information and
Rule 8.4 relating to misconduct but include the prohibition on dishonesty, fraud, deceit or
misrepresentation]”)
Idaho
D.Id. Local R., R.83.5(a)(“All members of the bar of this court and all attorneys
permitted to practice in this court shall familiarize themselves with and comply with the
standards of professional conduct required of members of the Idaho State Bar and decisions
of any court applicable thereto which are hereby adopted as standards of professional conduct
of this court . . .”)
Illinois
N.D.Ill.R.Prof.Conduct, LR.83.50.1. (“LR83.50.1 through LR83.58.9 are the rules of
professional conductj for the Northern District of Illinois. The rules have been numbered to
permit a ready identificaiton of the comparable rule in the ABA Model Rules. The ABA
Model Rules run from 1.1 through 8.5. The local rules are of the fomr LR83.5x.x. where the
x.x. part of therule is the same as the comparable ABA Model Rule”)(Included are the the

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candor to the tribunal-grand jury rules and comments of LR83.53.3 and LR.83.53.8; the no
contact rule of LR83.54.2; and the honesty rules of LR83.54.1 and LR83.58.4).
C.D.Ill.Local R., Gen.& Civ.R., LR 83.6(D) (“The Rules of Professional Conduct
adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court
of Illinois, as amended from time to time by that court, except as otherwise provided by
specific rule of this court after consideration of comments by representatives of bar
associations within the state”)
S.D.Ill.LocalR., R 83.4(d)(2)(“. . . The Rules of Professional Conduct adopted by this
Court are the Rules of Professional Conduct adopted by the Supreme Court of Illinois as
amended from time to time except as otherwise provided by specific Rule of this Court”)
Indiana
N.D.Ind.Local R., L.R.83.5(f)(“The Rules of Professional Conduct, as adopted by the
Indiana Supreme Court, and the Standards for Professional Conduct, as adopted by the
Seventh Circuit, shall provide the standards of conduct for those practicing in this court”)
S.D.Ind.Local R., L.R.83.5(f)(“The Rules of Professional Conduct, as adopted by the
Indiana Supreme Court, shall provide the standards of conduct for those practicing in this
Court”)
Iowa
N.D.Iowa & S.D.Iowa Local Civ.R. do not appear to specify a standard of conduct to
which members of their bars are held other than to observe that, “Any member of the bar of
the court may, for good cause shown, and after an opportunity has been given the member to
be heard, be disbarred, suspended from practice for a definite time, reprimanded, or subject
to such other discipline as the court may deem proper,” LR 83.2.g.
Kansas
D.Kan.Local R., LR.83.6.1(a)(“The Kansas Rules of Professional Conduct as adopted
by the Supreme Court of Kansas, and as amended by that court from time to time, except as
otherwise provided by a special rule of this court, are adopted by this court as the standards
of professional conduct”)
Kentucky
E.D.Ky. & W.D.Ky. Jt.Local R., LR 83.3(c) (“If it appears to the Court that an attonrey
practicing before the Court has violated the rules of the Kentucky Supreme jCourt governing
jprofessional conduct or is guilty of othe rconduct unbecoming an officerj of the Court, any
judge may order an attorney to show cause–within a specified time–why the Court should not
discipline the attorney . . .”)
Louisiana
E.D.La., M.D.La., & W.D.La. Uniform Local R., LR83.2.4E (“This court hereby
adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter
may be amended from time to time by the Louisiana Supreme Court, except as otherwise
provided by a special rule or general order of a court”)
E.D.La., M.D.La., & W.D.La. Uniform Local R., LR83.2.4M (“Except as otherwise
provided by a special rule of the court, the Rules of Professional Conduct of the Louisiana
State Bar Association promulgated by the Louisiana Supreme Court and in effect on May 15,
1989 are hereby adopted by this court. Subsequently promulgated, or other rules of
professional conduct may be adopted by this court by general rule”)
E.D.La., M.D.La., & W.D.La. Uniform Local R., LR83.2.4W (“This court hereby
adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter
may be amended from time to time by the Louisiana Supreme Court, except as otherwise
provided by a special rule of the courts”)

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Maine
D.Me.R, Civ.R. 83.3(d)(2)(“. . . The Code of Professional Responsibility adopted by
this Court is the Code of Professional Responsibility adopted by the Supreme Judicial Court
of Maine, as amended from time to time by that Court”)
Maryland
D.Md.R., R.704 (“This Court shall apply the Rules of Professional Conduct as they
have been adopted by the Maryland Court of Appeals”)
Massachusetts
D.Mass.Local R., LR. 83.6(4)(B)(“Acts or omissions by an attorney admitted to
practice before this court pursuant to this Rule 83.6 or appearing and practicing before this
court pursuant to Rule 83.7, individually or in concert with any other person or persons, that
violate the ethical requirements and rules concerning the practice of law of the Commonwealth
of Massachusetts, shall constitute misconduct and be grounds for discipline, whether or not
the act or omission occurred in the course of an attorney-client relationship. The ethical
requirements and rules concerning the practice of law mean those canons and rules adopted
by the Supreme Judicial Court of Massachusetts, embodied in Rules 3:05, 3:07 and 3:08 of
said court, as they may be amended from time to time by said court, except as otherwise
provided by specific rule of this court after consideration of comments by representatives of
bar associations within the Commonwealth”)
Michigan
E.D.Mich.Local R., LR83.20(j)(“An attorney admitted to the bar of this court or who
practices in this court as permitted by this rule is subject to the Rules of Professional Conduct
adopted by the Michigan Supreme Court, as amended from time to time, and consents to the
jurisdiction of this court and the Michigan Attorney Grievance Commission and the Michigan
Attorney Discipline Board for purposes of disciplinary proceedings”)
W.D.Mich.Local R. of Pract. & Proc.,LCiv.R. 83(j), LCrR 57(j)(“An attorney admitted
to the bar of this Court or who practices in this Court as permitted by this Rule is subject to
the Rules of Professional Conduct adopted by the Michigan Supreme Court, except those
rules a majority of the judges of this Court exclude by administrative order, and consents to
the jurisdiction of this Court and the Michigan Attorney Grievance Commission and Michigan
Attorney Discipline Board for purposes of disciplinary proceedings. . .”)
Minnesota
D.Minn. Local R., LR 83.6(d)(2)(“. . . The Minnesota Rules of Professional Conduct
adopted by the Supreme Court of Minnesota as amended from time to time by that Court are
adopted by this Court except as otherwise provided by specific rules of this Court”)
Mississippi
Uniform Local R. for N.D.Miss & S.D.Miss, R.83.5(“An attorney who makes an
appearance in any case in the district court is bound by the provisions of the Mississippi Rules
of Professional Conduct and is subject to discipline for violation thereof.”)
Missouri
E.D.Mo.Local R., R.83–12.02 (“. . . The Code of Professional Responsibility adopted
by this Court is the Code of Professional Responsibility adopted by the Supreme Court of
Missouri, as amended from time to time by that Court, except as may otherwise be provided
by this Court's Rules of Disciplinary Enforcement”)
W.D.Mo.Local Civ.R., R.83.5(c)[2] (“. . . The Code of Professional Responsibility
adopted by this Court is the Code of Professional Responsibility adopted by the highest court
the state in which this Court sits, as amended from time to time by that state court, except as

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may otherwise be provided by specific Rule of this Court after consideration of comments by
representatives of bar associations within the state”)
Montana
D.Mont.Gen.R., R.110-3 (“The standards of professional conduct of attorneys
practicing in this Court shall include The American Bar Association Rules of Professional
Conduct”)
Nebraska
D.Neb.Local R., NELR 83.5(d)(2)(“. . . The Code of Professional Responsibility
adopted by this court is the Code of Professional Responsibility adopted by the Supreme
Court of Nebraska, as amended from time to time, except as otherwise provided by specific
rule of this court after consideration of comments by representatives of bar associations within
the state”)
Nevada
D.Nev.Local R., L.R.IA 10-7(a)(“An attorney admitted to practice pursuant to any of
these rules shall adhere to the standards of conduct prescribed by the Model Rules of
Professional Conduct as adopted and amended from time to time by the Supreme Court of
Nevada, except as such may be modified by this court. Any attorney who violates these
standards of conduct may be disbarred, suspended from practice before this court for a
definite time, reprimanded or subjected to such other discipline as the court deems proper.
This subsection does not restrict the court's contempt power”)
New Hampshire
N.H. Local Civ.R., LR 83.5 DR-1 (“The Standards for Professional Conduct adopted
by this court are the Rules of Professional Conduct adopted by the New Hampshire Supreme
Court, as the same may from time to time be amended by that court, and any standards of
conduct set forth in these rules . . .”)
N.H.Local Crim.R., LCrR 1.1(d)(“The following civil/general local rules shall apply in
criminal actions: Rules . . . 83.5 . . .”)
New Jersey
D.N.J.Local Civ.R., L.Civ.R. 103.1(a) (“The Rules of Professional Conduct of the
American Bar Association as revised by the New Jersey Supreme Court shall govern the
conduct of the members of the bar admitted to practice in this Court, subject to such
modifications as may be required or permitted by Federal statute, regulation, court rule or
decision”) R., LR-CV 83.9
D.N.J.Local Crim.R., LcrR. (“The following Local Civil Rules are applicable to
criminal cases tried in the District of New Jersey . . . L.Civ.R. 103.1 . . . “)
New Mexico
D.N.M.Local R., LR-CV 83.9 (“The Rules of Professional Conduct adopted by the
Supreme Court of the State of New Mexico apply except as otherwise provided by local rule
or by Court order. Lawyers appearing in this District must comply with `A Lawyer's Creed
of Professionalism of the State Bar of New Mexico”)
D.N.M.Local R., LR-CR 57.2 (“a. The provisions of D.N.M.LR-Cv . . . .83.9 . . . are
herein adopted and incporporated as if fully set forth”)
New York
S.D.N.Y. & E.D.N.Y.Local Civ.R., R.1.5(b)(“Discipline or othe rrelief . . . may be
imposed . . . if any of the following grounds is found . . . (5) In connection with activities in
this court, any attorney found to have engaged in conduct violative of the New York State
Lawyer's Code of Professional Responsibility as adopted from time to time by the Appellate

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Divisions of the State of New York, and as interpreted and applied by the United States
Supreme Court, the United States Court of Appeals for the Second Circuit, and this court”)
S.D.N.Y. & E.D.N.Y.Local Crim.R., R.1.1(b)(“In addition to these Local Criminal
Rules, Local Civil Rules 1.2 through 1.10 . . . apply in criminal proceedings”
N.D.N.Y. Local R., L.R.83.4(j)(“The Code of Professional Responsibility of the
American Bar Association shall be enforced in this Court”)
W.D.N.Y. Local Civ.P.R., Civ.R.83.3(c)(“The Code of Professional Responsibility of
the American Bar Association as adopted by the New York State Bar Association shall be
enforced in this Court”)
W.D.N.Y. Local Crim.P.R., Crim.R.57.4(c)(“The Code of Professional Responsibility
of the American Bar Association as adopted by the New York State Bar Association shall be
enforced in this Court”)
North Carolina
E.D.N.C. Local R., Gen.R. 2.10 (“The ethical standard governing the practice of law
in this court is the Code of Professional Responsibility of the North Carolina State Bar,
Incorporated now in force and as hereafter modified by the Supreme Court of North Carolina,
except as may be otherwise provided by special rule of this court . . .”)
M.D.N.C. Local R. Civ.P., LR83.11e(b) (“. . . The Code of Professional Responsibility
adopted by this court is the Code of Professional Responsibility adopted by the Supreme
Court of North Carolina, as amended from time to time by that state court, except as may be
otherwise provided by special rule of this court”)
W.D.N.C. LR.83.1(a) governs admissions to the bar of the Court, but contains no
reference to the ethical standards to which members must adhere other than a requirement that
members of the North Carolina State bar who seek admission must take an oath in which they
swear “that I will demean myself as an attorney and officer of this court in accordance with
the Canons of Ethics of the North Carolina State Bar and American Bar Association, and
according to law.” Other admittees are similarly obligated in all likelihood.
North Dakota
D.N.D. Local R., R.79.1(E)(2)(“Where it is shown to the Court that any attorney
admitted to practice before this Court may have been convicted of a serious crime . . . or
otherwise breached standards of professional conduct, the Court shall enter an order requiring
the attorney to appear before the Court and show good cause why that attorney should not be
suspended from practice before the Court pending formal commencement of disciplinary
proceedings and final disposition of such proceedings . . .”)
Ohio
N.D.Ohio Local Civ.R., LR 83.7(a)(“Attorneys admitted to practice int his Court shall
be bound by the ethical standards of the Code of Professional Responsibility adopted by the
Supreme Court of Ohio, so far as they are not inconsistent with federal law”)
N.D.Ohio Local Crim.R., LR 57.7(a)(“All Attorneys admitted to practice int his Court
shall be bound by the ethical standards of the Code of Professional Responsibility adopted
by the Supreme Court of Ohio, so far as they are not inconsistent with federal law”)
S.D.Ohio Local R., Order 81-1, Model F.R. of Disc.Enf. IVB.(“. . . The Code of
Professional Responsibility adopted by this court is the Code of Professional Responsibility
adopted by the highest court of the state in which this Court sits, as amended from time to
time by that state court except as otherwise provided by specific Rule of this Court after
consideration of comments by representatives of bar associations within the state”)
Oklahoma
E.D.Okla.Local Civ.R., LR 83.3[K.] (“The Code of Professional Responsibility of the
Oklahoma Bar Association, as amended from time to time, is adopted as the standard of
conduct for applicants and members of the bar of this Court”)

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E.D.Okla.Local Crim.R., LR 1.2 (“When appropriate in a criminal context, the Local
Rules of Civil Procedure are also deemed applicable to criminal cases”)
N.D.Okla.Local Civ.R., LR 83.2[A] (“Attorneys practicing in this court are expected
to conduct themselves in accordance with the Oklahoma Rules of Professional Responsibility,
as adopted by the Oklahoma Supreme Court, as the standard of conduct of all members of the
Oklahoma Bar Association . . .”)
N.D.Okla.Local Crim.R., LR 1.2 (“When appropriate in a criminal context, Civil Local
Rules . . . 83.2 (Professional Conduct and Courtroom Decorum) . . . are also deemed
applicable to criminal cases”)
W.D.Okla.Local Civ. R., LCvR 83.6(b)(“The Court adopts the Oklahoma Rules of
Professional Conduct as adopted and amended from time to time by the Supreme Court of
Oklahoma as the standard governing attorney conduct in this Court”
W.D.Okla.Local Crim. R., LCrR 57.2(a)(“The provisions of . . . LCvR83.6 Discipline
by the Court are applicable to these local criminal rules and are not repeated. . . .”)
Oregon
D.Ore. Local R., Civ.R.110-3 (“Every member of the bar of this court and any attorney
permitted to practice in this court shall be familiar and comply with the standards of
professional conduct required of members of the Oregon State Bar . . .”)
Pennsylvania
E.D.Pa. Local R. Civ.R. 83.6, R.IV.B. (“. . . The Rules of Professional Conduct
adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court
of Pennsylvania, as amended from time to time by that state court, except as otherwise
provided by specific Rule of this Court after consideration of comments by representatives of
bar associations within the state, except that prior court approval as a condition to the
issuance of a subpoena addressed to an attorney in any criminal proceeding, including a grand
jury, shall not be required. The propriety of such a subpoena may be considered on a motion
to quash”)
E.D.Pa. Local R. Crim.R. 1.2 (“The following Local Civil Rules shall be fully
applicable in all criminal proceedings . . . Rule 83.6. . . .”)
M.D.Pa. Local R. 83.23.2 (“. . . The Rules of Professional Conduct adopted by this
court are: (1) the Rules of Professional Conduct adopted by the Supreme Court of
Pennsylvania, except Rule 3.10, as amended from time to time by that court, unless
specifically expected in this court's rules; and (2) the Code of Professional Conduct enacted
in the Middle District of Pennsylvania's Civil Justice Reform Act Plan [dealing with civility
and decorum]. See Appendix C”)
W.D.Pa. Local Civil R. LR83.3.1[B] (“. . . The rules of professional conduct adopted
by this court are the rules of professional conduct adopted by the Supreme Court of
Pennsylvania as amended from time to time by the state court, except that Rule 3.10 has been
specifically deleted as a rule of this court, and as otherwise provided by specific order of this
court”)
W.D.Pa. Local Civil R. LR 1.1 (“These rules shall apply in all proceedings in civil and
criminal actions”)
Rhode Island
D.R.I. Local R. 4(d)(“The Rules of Professional Conduct of the Rhode Island Supreme
Court shall be the standard of conduct for all attorneys practicing before this court”)
South Carolina
D.S.C.Local R., LCivR. 83.I.08, LCrimR. 57.I.8, FRDE R.IV(B) (“ . . .The Code of
Professional Responsibility adopted by this Court is the South Carolina Rules of Professional
Conduct (Rule 407 of the South Carolina Appellate Court Rules), adopted by the Supreme
Court of the State of South Carolina, as amended from time to time, except as otherwise
provided by special Rule of this Court.”)

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South Dakota
D.S.D. Local R. are silent on the question except for the provision that “It shall be the
duty of the United States Attorney, under the direction of this Court, to investigate charges
against any member of this bar. If, as a result of the investigations, the United States Attorney
shall be of the opinion that there has been a breach of professional ethics by a member of this
bar, the United States Attorney, as an officer of the Court having special responsibilities for
the administration of justice, shall file and prosecute a petition requesting that the alleged
offender be subject to appropriate discipline. . . . Such duties may, with the approval of a
majority of the judges, be delegated to any member of the bar of this Court approved by
them,” D.S.D. Local R..83.2(G)(4).
Tennessee
E.D.Tenn. Local R., R. 83.6 (“The Code of Professional Responsibility adopted by the
Supreme Court of Tennessee is hereby adopted as rules of professional conduct insofar as
they relate to matters within the jurisdiction of this court”)
M.D.Tenn. Local R., R. 1(e)(4)(“The standard of professional conduct for members of
the bar of this Court shall include the current Code of Professional Responsibility of the
American Bar Association. . . . This Rule shall not apply to Disciplinary Rule 7-107, which
is superseded as a Rule in this District by Rule 3 of these Rules”)
W.D.Tenn. Local Civ. R., LR83.1(e)(“All attorneys practicing before the United States
District Court of the Western District of Tennessee shall comply with the Code of
Professional Responsibility as then currently promulgated and amended by the Supreme Court
of Tennessee, except that prior court approval as a condition to the issuance of a subpoena
addressed to an attorney shall not be required, as specified in Tenn.S.Ct.R.8, DR 7-103(c) and
with the Guidelines for Professional Courtesy and Conduct adopted by this court”)
Texas
E.D.Tex. Local R., LR AT-2(a)(“The standards of professional conduct adopted as part
of the Rules Governing the State Bar of Texas shall serve as a guide governing the obligations
and responsibilities of all attorneys appearing in this Court. It is recognized, however, that
no set of rules may be framed which will particularize all the duties of the attorney in the
varying phases of litigation or in all the relations of professional life. Therefore the attorney
practicing in this Court should be familiar with the duties and obligations imposed upon
members of this Bar by the Texas Disciplinary Rules of Professional Conduct, court
decisions, statutes, and the usage customs and practices of this Bar”)
N.D.Tex. Local R., L.Civ.R 83.8(e), L.Crim.R. 57.8(e)(“The term ‘unethical behavior’
as used in this rule, includes any conduct that violates any code, rule, or standard of
professional conduct or responsibility governing the conduct of attorneys authorized to
practice law in the State of Texas”)
S.D.Tex. Local R., App.A, R. 1[A] (“Lawyers who practice before this court are
required to act as mature and responsible professionals, and the minimum standard of practice
shall be the Texas Disciplinary Rules of Professional Conduct.”)
Utah
D.Utah R.of Pract., R.83-1.1(h)(“All attorneys practicing before this court, whether
admitted as members of the bar of this court, admitted pro hac vice, or otherwise as ordered
by this court, are governed by and must comply with the rules of practice adopted by this
court, and unless otherwise provided by these rules, with the Utah Rules of Professional
Conduct, as revised and amended and as interpreted by this court”)
Vermont
D.Vt.Local R., R.83.2(d)(4)(B) (“. . . The Code of Professional Responsibility or the
Rules of Professional Conduct adopted by this court is the Code of Professional

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Responsibility or the Rules of Professional Conduct adopted by the highest court of the state
in which this court sits, as amended from time to time by that state court, except as may
otherwise be provided by specific rule of this Court after consideration of comments by
representatives of Bar Associations within the state and other interested parties”)
Virginia
E.D.Va.Local R. of Pract., R.83.1(I)(“The ethical standards relating to the practice of
law in this Court shall be the Virginia Code of Professional Responsibility now in force and
as hereafter modified or supplemented. However, contrary to Virginia practice, prior Court
approval as a condition to the issuance of a subpoena addressed to an attorney in any criminal
proceeding, including a grand jury, shall not be required. The propriety of such a subpoena
may be considered on a motion to quash”)
W.D.Va.R., Standing Orders, Plans; Pl.26, Rule IV. B. (“. . .The Code of Professional
Responsibility or the Rules of Professional Conduct adopted by this court is the Code of
Professional Responsibility or the Rules of Professional Conduct adopted by the highest court
the state in which this court sits, as amended from time to time by that state court, except as
may otherwise be provided by specific rule of this Court after consideration of comments by
representatives of bar associations within the state”)
Washington
E.D.Wash. Local R., R 83.3(a)(2)(“The members of the bar of this court, and other
attorneys appearing in cases in this court whether or not a member of the bar of this court, or
of the bar of the state of Washington, shall be governed by and shall observe the Rules of
Professional Conduct of the Washington State Bar in effect at the time these rules are adopted,
together with any amendments or additions in such Rules. . .”).
W.D.Wash. Gen.R., GR 2(e)(1)(“The members of the bar of this court shall be governed
by and shall observe the Rules of Professional Conduct of the Washington State Bar in effect
at the time these rules are adopted, together with any amendments or additions thereto, unless
such amendments or additions are specifically disapproved by the court”).
West Virginia
N.D.W.Va. Local R., LR Gen P 3.01 (“The Rules of Professional Conduct of the
American Bar Association, the Model Federal Rules of Disciplinary Enforcement as adopted
by this Court, and the Rules of Professional Conduct as adopted by the Supreme Court of
Appeals of West Virginia provide the basic ethical considerations and disciplinary rules for
the conduct of attorneys practicing in this Court . . .”).
S.D.W.Va. Local R., LR Gen P 3.01 (“The Rules of Professional Conduct of the
American Bar Association, the Model Federal Rules of Disciplinary Enforcement as adopted
by this Court, and the Rules of Professional Conduct as adopted by the Supreme Court of
Appeals of West Virginia provide the basic ethical considerations and disciplinary rules for
the conduct of attorneys practicing in this Court . . .”).
Wisconsin
E.D.Wis. Local R., R.2, §2.05(a)(“The standards of conduct of the members of the bar
of this court, of government attorneys, and of nonresident attorneys admitted to practice before
this court shall be those prescribed by the Rules of Professional Conduct for Attorneys
SCR:20:1.1-8.5, as such may be adopted from time to time by the Supreme Court of
Wisconsin and except as such may be modified by this court . . .”).
W.D.Wis. Local R., R.1(LR 83.5) The local rules do not adopt rules of professional
conduct for members of the bar of the court.
Wyoming
D.Wyo.Local R., Civ.R.83.12.7(b)(“. . . The Rules of Professional Conduct adopted by
this Court are the Rules of Professional Conduct adopted by the highest court of the state in

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which this Court sits, as amended from time-to-time by that state court, except as otherwise
provided by specific rule of this Court after consideration of comments by representatives of
bar association within the state”).
D.Wyo.Local R., Crim.R.1.2 (“When appropriate in a criminal context, the Local Rules
of Civil Procedure are also deemed applicable in cirminal cases.”)
United States Attorneys' Manual
§9-11.233 Presentation of Exculpatory Evidence
In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the
Federal courts' supervisory powers over the grand jury did not include the power to make a
rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to
introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department
of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally
aware of substantial evidence that directly negates the guilt of a subject of the investigation,
the prosecutor must present or otherwise disclose such evidence to the grand jury before
seeking an indictment against such a person. While a failure to follow the Department's policy
should not result in dismissal of an indictment, appellate courts may refer violations of the
policy to the Office of Professional Responsibility for review.
§9-13.410 Guidelines for Issuing Grand Jury or Trial
Subpoena to Attorneys for Information Relating to the
Representation of Clients
A. Clearance with the Criminal Division. Because of the potential effects upon an
attorney-client relationship that may result from the issuance of a subpoena to an attorney for
information relating to the attorney's representation of a client, the Department exercises close
control over such subpoenas. All such subpoenas (for both criminal and civil matters) must
first be authorized by the Assistant Attorney General for the Criminal Division before they
may issue.
B. Preliminary Steps. When determining whether to issue a subpoena to an attorney
for information relating to the attorney's representation of a client, the Assistant United States
Attorney must strike a balance between an individual's right to the effective assistance of
counsel and the public's interest in the fair administration of justice and effective law
enforcement. To that end, all reasonable attempts shall be made to obtain the information
form alternative sources before issuing the subpoena to the attorney, unless such efforts would
compromise the investigation or case. These attempts shall include reasonable efforts to first
obtain the information voluntarily from the attorney, unless such efforts would compromise
the investigation or case, or would impair the ability to subpoena the information from the
attorney in the event that the attempt to obtain the information voluntarily proves
unsuccessful.
C. Evaluation of the Request. In considering a request to approve the issuance of a
subpoena to an attorney for information relating to the representation of a client, the Assistant
Attorney General of the Criminal Division applies the following principles:
•
The information sought shall not be protected by a valid claim of privilege.

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•
All reasonable attempts to obtain the information from alternative sources shall have
proved to be unsuccessful.
•
In a criminal investigation or prosecution, there must be reasonable grounds to believe
a crime has been or is being committed, and that the information sought is reasonably
needed for the successful completion of the information or prosecution. The subpoena
must not be used to obtain peripheral or speculative information.
•
In a civil case, there must be reasonable grounds to believe that the information sought
is reasonably necessary to the successful completion of the litigation.
•
The need for the information must outweigh the potential adverse effects upon the
attorney-client relationship. In particular, the need for the information must outweigh
the risk that the attorney may be disqualified from representation of the client as a result
of having to testify against the client
•
The subpoena shall be narrowly drawn and directed at material information regarding
a limited subject matter and shall cover a reasonable, limited period of time.
See also the Criminal Resource Manual at 263.
D. Submitting the Request. . . .
E. No Rights Created by Guidelines. These guidelines are set forth solely for the purpose
of internal Department of Justice guidance. They are not intended to, do not, and may not be
relied upon to create any rights, substantive or procedural, enforceable by law by any party
in any matter, civil or criminal, nor do they place any limitations on otherwise lawful
investigative prerogatives of the Department of Justice.
[Department of Justice] Criminal Resource Manual 263
Common Factual Settings Involving Subpoenas to Attorneys
The Department's policy applies whenever a subpoena will issue for information relating
to representation of a client. Accordingly, authorization must be obtained even for the
"friendly subpoena" where the attorney witness is willing to provide the information, but
requests the formality of a subpoena.
Conversely, if the attorney is willing to voluntarily appear and no subpoena is necessary,
there is no need to consult the Department.
Departmental authorization is not required in every instance in which a subpoena
involves an attorney. There are several common situations in which it is not necessary to seek
authorization before issuing a subpoena:
(1) A subpoena directed to a bank for the records of an attorney's trust account
does not require authorization because the subpoena is not directed to the attorney,
and the information maintained at the bank is not a privileged attorney-client
communication.
(2) While a subpoena which seeks client billing records requires authorization, a
subpoena which seeks internal law office business documents (pay records of law
office employees, law firm tax returns, etc.) does not, because it relates to the
day-to-day business operations of the law firm, and not to the representation of a
client.

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(3) A subpoena seeking information regarding the attorney's personal activities,
such as his/her purchase of real estate in a personal, and not representative
capacity, does not require authorization.
(4) A subpoena which seeks corporate business information, and which is directed
to an attorney who serves as a corporate officer, does not require authorization.
To make clear that the attorney is being subpoenaed in his/her capacity as a
corporate officer, and that no attorney-client information is being sought, the
subpoena should be addressed to "John [Jane] Doe, in his/her capacity as secretary
of the XYZ Corporation."
28 C.F.R. Pt. 77
§77.1 Purpose and authority.
(a) The Department of Justice is committed to ensuring that its attorneys perform their
duties in accordance with the highest ethical standards. The purpose of this part is to
implement 28 U.S.C. 530B and to provide guidance to attorneys concerning the requirements
imposed on Department attorneys by 28 U.S.C. 530B.
(b) Section 530B requires Department attorneys to comply with state and local federal
court rules of professional responsibility, but should not be construed in any way to alter
federal substantive, procedural, or evidentiary law or to interfere with the Attorney General's
authority to send Department attorneys into any court in the United States.
(c) Section 530B imposes on Department attorneys the same rules of professional
responsibility that apply to non-Department attorneys, but should not be construed to impose
greater burdens on Department attorneys than those on non-Department attorneys or to alter
rules of professional responsibility that expressly exempt government attorneys from their
application.
(d) The regulations set forth in this part seek to provide guidance to Department
attorneys in determining the rules with which such attorneys should comply.
§ 77.2 Definitions.
As used in this part, the following terms shall have the following meanings, unless the
context indicates otherwise:
(a) The phrase attorney for the government means the Attorney General; the Deputy
Attorney General; the Solicitor General; the Assistant Attorneys General for, and any attorney
employed in, the Antitrust Division, Civil Division, Civil Rights Division, Criminal Division,
Environment and Natural Resources Division, and Tax Division; the Chief Counsel for the
DEA and any attorney employed in that office; the General Counsel of the FBI and any
attorney employed in that office or in the (Office of General Counsel) of the FBI; any attorney
employed in, or head of, any other legal office in a Department of Justice agency; any United
States Attorney; any Assistant United States Attorney; any Special Assistant to the Attorney
General or Special Attorney duly appointed pursuant to 28 U.S.C. 515; any Special Assistant
United States Attorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to
conduct criminal or civil law enforcement investigations or proceedings on behalf of the
United States; and any other attorney employed by the Department of Justice who is
authorized to conduct criminal or civil law enforcement proceedings on behalf of the United
States. The phrase attorney for the government also includes any independent counsel, or
employee of such counsel, appointed under chapter 40 of title 28, United States Code. The
phrase attorney for the government does not include attorneys employed as investigators or
other law enforcement agents by the Department of Justice who are not authorized to represent
the United States in criminal or civil law enforcement litigation or to supervise such
proceedings.

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(b) The term case means any proceeding over which a state or federal court has
jurisdiction, including criminal prosecutions and civil actions. This term also includes grand
jury investigations and related proceedings (such as motions to quash grand jury subpoenas
and motions to compel testimony), applications for search warrants, and applications for
electronic surveillance.
(c) The phrase civil law enforcement investigation means an investigation of possible
civil violations of, or claims under, federal law that may form the basis for a civil law
enforcement proceeding.
(d) The phrase civil law enforcement proceeding means a civil action or proceeding
before any court or other tribunal brought by the Department of Justice under the authority
of the United States to enforce federal laws or regulations, and includes proceedings related
to the enforcement of an administrative subpoena or summons or civil investigative demand.
(e) The terms conduct and activity means any act performed by a Department attorney
that implicates a rule governing attorneys, as that term is defined in paragraph (h) of this
section.
(f) The phrase Department attorney[s] is synonymous with the phrase "attorney[s] for
the government" as defined in this section.
(g) The term person means any individual or organization.
(h) The phrase state laws and rules and local federal court rules governing attorneys
means rules enacted or adopted by any State or Territory of the United States or the District
of Columbia or by any federal court, that prescribe ethical conduct for attorneys and that
would subject an attorney, whether or not a Department attorney, to professional discipline,
such as a code of professional responsibility. The phrase does not include:
(1) Any statute, rule, or regulation which does not govern ethical conduct, such as rules
of procedure, evidence, or substantive law, whether or not such rule is included in a code of
professional responsibility for attorneys;
(2) Any statute, rule, or regulation that purports to govern the conduct of any class of
persons other than attorneys, such as rules that govern the conduct of all litigants and judges,
as well as attorneys; or
(3) A statute, rule, or regulation requiring licensure or membership in a particular state
bar.
(i) The phrase state of licensure means the District of Columbia or any State or
Territory where a Department attorney is duly licensed and authorized to practice as an
attorney. This term shall be construed in the same manner as it has been construed pursuant
to the provisions of Pub.L. 96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the
Departments of Commerce, Justice and State, the Judiciary, and Related Agency
Appropriations Act, 1999, Pub.L. 105-277.
(j)(1) The phrase where such attorney engages in that attorney's duties identifies which
rules of ethical conduct a Department attorney should comply with, and means, with respect
to particular conduct:
(i) If there is a case pending, the rules of ethical conduct adopted by the local federal
court or state court before which the case is pending; or
(ii) If there is no case pending, the rules of ethical conduct that would be applied by the
attorney's state of licensure.
(2) A Department attorney does not "engage[ ] in that attorney's duties" in any states in
which the attorney's conduct is not substantial and continuous, such as a jurisdiction in which
an attorney takes a deposition (related to a case pending in another court) or directs a contact
to be made by an investigative agent, or responds to an inquiry by an investigative agent. Nor
does the phrase include any jurisdiction that would not ordinarily apply its rules of ethical
conduct to particular conduct or activity by the attorney.
(k) The phrase to the same extent and in the same manner as other attorneys means
that Department attorneys shall only be subject to laws and rules of ethical conduct governing
attorneys in the same manner as such rules apply to non-Department attorneys. The phrase
does not, however, purport to eliminate or otherwise alter state or federal laws and rules and

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federal court rules that expressly exclude some or all government attorneys from particular
limitations or prohibitions.
§77.3 Application of 28 U.S.C. 530B.
In all criminal investigations and prosecutions, in all civil investigations and litigation
(affirmative and defensive), and in all civil law enforcement investigations and proceedings,
attorneys for the government shall conform their conduct and activities to the state rules and
laws, and federal local court rules, governing attorneys in each State where such attorney
engages in that attorney's duties, to the same extent and in the same manner as other attorneys
in that State, as these terms are defined in 77.2 of this part.
§77.4 Guidance.
(a) Rules of the court before which a case is pending. A government attorney shall, in
all cases, comply with the rules of ethical conduct of the court before which a particular case
is pending.
(b) Inconsistent rules where there is a pending case. (1) If the rule of the attorney's state
of licensure would prohibit an action that is permissible under the rules of the court before
which a case is pending, the attorney should consider:
(i) Whether the attorney's state of licensure would apply the rule of the court before
which the case is pending, rather than the rule of the state of licensure;
(ii) Whether the local federal court rule preempts contrary state rules; and
iii) Whether application of traditional choice-of-law principles directs the attorney to
comply with a particular rule.
(2) In the process of considering the factors described in paragraph (b)(1) of this section,
the attorney is encouraged to consult with a supervisor or Professional Responsibility Officer
to determine the best course of conduct.
(c) Choice of rules where there is no pending case. (1) Where no case is pending, the
attorney should generally comply with the ethical rules of the attorney's state of licensure,
unless application of traditional choice-of-law principles directs the attorney to comply with
the ethical rule of another jurisdiction or court, such as the ethical rule adopted by the court
in which the case is likely to be brought.
(2) In the process of considering the factors described in paragraph (c)(1) of this section,
the attorney is encouraged to consult with a supervisor or Professional Responsibility Officer
to determine the best course of conduct.
(d) Rules that impose an irreconcilable conflict. If, after consideration of traditional
choice-of-law principles, the attorney concludes that multiple rules may apply to particular
conduct and that such rules impose irreconcilable obligations on the attorney, the attorney
should consult with a supervisor or Professional Responsibility Officer to determine the best
course of conduct.
(e) Supervisory attorneys. Each attorney, including supervisory attorneys, must assess
his or her ethical obligations with respect to particular conduct. Department attorneys shall
not direct any attorney to engage in conduct that violates section 530B. A supervisor or other
Department attorney who, in good faith, gives advice or guidance to another Department
attorney about the o
other attorney's ethical obligations should not be deemed to violate these rules.
(f) Investigative Agents. A Department attorney shall not direct an investigative agent
acting under the attorney's supervision to engage in conduct under circumstances that would
violate the attorney's obligations under section 530B. A Department attorney who in good
faith provides legal advice or guidance upon request to an investigative agent should not be
deemed to violate these rules.
§77.5 No private remedies.
The principles set forth herein, and internal office procedures adopted pursuant hereto,
are intended solely for the guidance of attorneys for the government. They are not intended

CRS-57
to, do not, and may not be relied upon to create a right or benefit, substantive or procedural,
enforceable at law by a party to litigation with the United States, including criminal
defendants, targets or subjects of criminal investigations, witnesses in criminal or civil cases
(including civil law enforcement proceedings), or plaintiffs or defendants in civil investigations
or litigation; or any other person, whether or not a party to litigation with the United States,
or their counsel; and shall not be a basis for dismissing criminal or civil charges or
proceedings or for excluding relevant evidence in any judicial or administrative proceeding.
Nor are any limitations placed on otherwise lawful litigative prerogatives of the Department
of Justice as a result of this part.

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