McDade-Murtha Amendment: Legislation in the 107th Congress Concerning Ethical Standards for Justice Department Litigators

McDade-Murtha Amendment: Legislation in the 107th Congress Concerning Ethical Standards for Justice Department Litigators

Order Code RL31221
CRS Report for Congress
Received through the CRS Web
McDade-Murtha Amendment: Legislation in the
107th Congress Concerning Ethical Standards for
Justice Department Litigators
December 18, 2001
-name redacted-
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress

McDade-Murtha Amendment: Legislation in the 107th
Congress Concerning Ethical Standards for Justice
Department Litigators
Summary
The McDade-Murtha Amendment, 28 U.S.C. 530B, requires Justice Department
litigators to observe the ethical standards established by the state and local federal
court rules wherever they perform their duties. The Amendment was passed in an
apparent effort to find an effective preventive and corrective mechanism for
prosecutorial abuse. Critics argue that the Amendment can work to impede effective
federal law enforcement efforts. They point particularly to state and local federal
court provisions governing no contact rules, grand jury practices, and professional
honesty.
Several amendments to McDade-Murtha have been offered during the 107th
Congress. Each has a provision designed to allow federal litigators to initiate, direct,
and advise undercover investigations notwithstanding ethical prohibitions against false
statements and deceitful conduct. The proposals are in response to an Oregon
Supreme Court decision that refused to recognize a law enforcement exception to its
state professional honesty requirements. All but one of the proposals simply add the
undercover exception to McDade-Murtha.
H.R. 1437, however, repeals McDade-Murtha and returns federal litigators to
their pre-existing ethical situtation with several adjustments, i.e.:
• an explicit law enforcement undercover exception to any otherwise applicable
honesty rule;
• a specific prohibition against the exclusion of otherwise admissible evidence
based solely upon a prosecutor’s ethical violations;
• a study designed to resolve conflicts over the no contact rule (a proscription
against attorneys dealing with the clients of another unbeknownst to their
attorneys); and
• a study designed to resolve other conflicts between federal law enforcement
interests and state standards of professional responsibility.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Divisive Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Professional Standards for Government Attorneys Act (S.1437) . . . . . . . . . 3
S.1435/§599A of H.R. 2506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
H.R. 3309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
S. 1437 (text) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
S. 1435/§599A of H.R. 2506 (text) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
H.R. 3309 (text) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

McDade-Murtha Amendment: Legislation in
the 107th Congress Concerning Ethical
Standards for Justice Department Litigators
Introduction
The McDade-Murtha Amendment, 28 U.S.C. 530B, instructs Department of
Justice litigators to adhere to the ethical standards which apply to other attorneys in
the places where the litigators perform their duties.1 While supporters argue the
Amendment affords the only effective means of preventing and correcting
prosecutorial abuse, critics contend that the Amendment impedes effective federal law
enforcement. Twice in the last year, the Senate has passed legislation that included
sections substantially modifying the amendment, but in each instance the modifications
have been stripped out of the host legislation prior to its passage. This is a discussion
of those sections and other similar proposals introduced in the 107th Congress.
1 “(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
and also includes any independent counsel, or employee of such a counsel, appointed under
chapter 40,” 28 U.S.C. 530B.
“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, 28 C.F.R. §77.2(a).

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Background
Prior to enactment of the McDade-Murtha Amendment as section 801 of the
Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999,
112 Stat. 2681-118, Justice Department attorneys had long been required to be
licensed to practice law by some state, territory or the District of Columbia and as a
consequence were obligated to honor the ethical standards imposed upon members
of the bar to which they were admitted.2 The federal courts when called upon to
establish ethical standards for attorneys appearing before them generally adopted the
rules of the states in which they were located.
Early in 1980, the Justice Department ruled that nothing in these state and local
federal court standards should be construed as an impediment to federal law
enforcement efforts.3 Attorneys General Thornburgh and Reno subsequently re-
emphasized the point.4
2 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). The requirement first appeared and has been carried forward
in Justice Department appropriation and authorization acts, 52 Stat. 269 (1938); 93 Stat.
1004 (1979)(“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”); 114 Stat. 2762A-67 (2000)(“Hereafter, authorities contained in the
Department of Justice Appropriation Authorization Act, Fiscal Year 1980 (P.L. 96-132; 93
Stat. 1040 (1979)), as amended, shall remain in effect until the effective date of a subsequent
Department of Justice Appropriation Authorization Act”).
3 “[F]ederal law enforcement activities are limited only by relevant constitutional and statutory
provisions . . . . [C]ourts have no authority to exclude evidence solely on the basis of a
violation of [state ethical standards], and state bar associations may not, consistent with the
Supremacy Clause, impose sanctions on a government attorney who has acted within the
scope of his federal responsibilities,” Ethical Restraints of the ABA Code of Professional
Responsibility on Federal Investigations, 4B OPINIONS OF THE OFFICE OF LEGAL COUNSEL
576, 577 (1980).
4 “The Department has taken the position that, although the states have the authority to
regulate the ethical conduct of attorneys admitted to practice before their courts, that authority
permits regulation of federal attorneys only if the regulation does not conflict with the federal
law or with the attorneys’ federal responsibilities,” Memorandum from Attorney General Dick
Thornburgh to All Justice Department Litigators (June 8, 1989)(Thornburgh Memorandum),
printed in, In re Doe, 801 F.Supp. 478, 490 (D.N.M. 1992).
“[T]he Department has long maintained, and continues to maintain that it has the
authority to exempt its attorneys from the application of DR7-104 and Model Rule 4.2
[(American Bar Association model ethical standards relating to prohibited discussions with
clients unbeknownst to their attorneys)] and their state counterparts. Furthermore, the
Department maintains that whether, and to what extent, such prohibitions should apply to
Department attorneys is a policy question. See,4B OP.O.L.C. 576, 577 (1980),”
Communications with Represented Persons, 59 Fed.Reg. 39910, 39911 (Aug. 4, 1994)(Reno
Regulations).

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In the meantime, however, Congress had begun to express its concern. The
House Government Operations Committee conducted hearings5 and recommended
among other things a thorough examination of the ethics rules applicable to
Department attorneys while expressing concern over “the problems inherent in any
system of self-policing and regulation,” H.Rept. 101-986, at 35 (1990). Later, the
House Judiciary Committee held hearings on a legislative proposal cast in language
much like that of the McDade-Murtha Amendment.6
Thereafter, apparently frustrated by the perceived lack of an effective mechanism
to curb prosecutorial abuse by federal prosecutors, both Independent Counsel and
regular Justice Department attorneys, Congress added the McDade-Murtha
Amendment to the 1998 Justice Department appropriations act.
Divisive Issues
Debate over the Amendment and proposals to change it revolve around the same
issues that have marked the subject from the beginning. Some are general; others
particularized. Who should determine what ethical standards federal litigators must
honor? Should federal standards be uniform throughout the United States or
compatible with local standards? Should local “no contact,” grand jury, or honesty
regulations apply to federal litigators even if they impede the performance of federal
attorneys? These issues touched upon below in the context of specific legislative
proposals are discussed in greater detail in McDade-Murtha Amendment: Ethical
Standards for Justice Department Attorneys, CRS Report RL30060 (Dec. 14, 2001).
Professional Standards for Government Attorneys Act (S.
1437/§501 of S. 1510)
Senator Leahy introduced the Professional Standards for Government Attorneys
Act of 2001 (S.1437) for himself and Senators Hatch and Wyden on September 19,
2001, 147 Cong.Rec. S9509. The bill passed the Senate as section 501 of the
Senate’s terrorism bill ( S.1510), 147 Cong.Rec. S10622 (daily ed. Oct. 11, 2001),
but was not included in the final USA PATRIOT Act, P.L. 107-56.7 It repeals the
McDade-Murtha Amendment and instead places federal litigators under the exclusive
control of the local federal court rules where they conduct their activities, subject to
several specific exceptions. It calls for studies and reports designed to remove
specific divisive issues from the domain of local federal court rules and place them
within the federal rules of criminal and civil procedure.
5 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).
6 Ethical Standards for Federal Prosecutors Act of 1996 [H.R. 3386]: Hearing Before the
Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th
Cong., 2d Sess. (1996).
7 S.1510 was passed without hearings or committee report; thus far, S.1437 has been the
subject of neither hearings nor a committee report.

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More specifically, when federal litigators are engaged in conduct “in connection
with” or “reasonably intended to lead to” a proceeding in or before a particular court,
they are bound by the ethical standards of that tribunal, which in the vast majority of
cases would be a federal rather than a state court. Otherwise, they are bound by the
rules of the local federal court where they ordinarily perform their duties.
The sponsor’s summary indicates that this last category is for cases of
uncertainty as when venue is possible in more than one district or when proceedings
are being conducted or anticipated in more than one district: “in other circumstances,
where no court has clear supervisory authority over particular conduct, an attorney
would be subject to the professional standards established by rules and decisions of
the United States District Court for the judicial district in which the attorney
principally performs his officials duties,” 147 Cong.Rec. S9511 (daily ed. Sept. 19,
2001)(Summary of the “Professional Standards for Government Attorneys Act of
2001” accompanying the introductory remarks of Sen. Leahy).
The bill codifies the appropriations requirement that federal litigators be licensed
to practice law in some American jurisdiction. Like most local federal court rules, it
does not require them to be admitted either in the state where they ordinarily
represent the United States or in any states where they otherwise perform their
duties.8 Federal litigators are thus returned to where they stood prior to the McDade-
8 E.g., D.Vt.L.R. 83.1(c)(“Any Assistant United States Attorney for the District of Vermont
who does not qualify for admission pursuant to LR 83.2(a)(1), supra [relating to members of
the bar of the State of Vermont] but is an attorney for the Bar of any District Court of the
United States, whose professional character is good and is not subject to any pending
disciplinary proceedings, may be admitted to practice in this court upon motion of the United
States Attorney for the District of Vermont, pay the required application fee and upon taking
the proper oath”); N.D.Tex. L.R. 83.11, LCrR 57.11 (Unless the presiding judge otherwise
directs, an attorney appearing on behalf of the United States Justice Department or the
Attorney General of the State of Texas, and who is eligible pursuant to LCrR 57.9(a) [i.e.,
is licensed to practice law by the highest court of any state or the District of Columbia] to
appear in this court, shall be exempt from the requirements of LCrR 57.9(b)[relating to
application to appear pro hac vice] and 57.10 [relating to the requirement of local counsel],
but shall otherwise be subject to all requirements applicable to attorneys who have been
granted leave to appear pro hac vice”); N.D. & S.D.Iowa L.R. 83.2(d)(1), L.Cr.R. 1.1; N.D.
& S.D.Miss. L.R. 83.1(A)(3); E.D.Pa. Civ.R. 83.5[e], Crim.R. 1.2; E.D.Wash. L.R. 83.2(a);
but see, S.D.Cal.Civ.Local R., LR 83.3 [c.][3.](“The United States Attorney or Acting United
States Attorney. The United States Attorney or the Acting United States Attorney must be
a member in good standing of and eligible to practice before the bar of any United States court
or of the highest court of any state, or of any territory or insular possession of the United
States. b. Attorneys for the United States. An attorney who is not eligible for admission under
Civil Local Rule 83.3.c hereof, but who is a member in good standing of, and eligible to
practice before, the bar of any United States court or of the highest court of any state, or of
any territory or insular possession of the United States and who is of good moral character,
may practice in this court in any matter in which the attorney is employed or retained by the
United States or its agencies and is representing the United States or any of its officers or
agencies, provided that the attorney shall apply for and pass the next succeeding California
bar examination for which the attorney may be eligible after receiving permission to practice
before this court and thereafter obtain admission to the State Bar of California. Attorneys so
permitted to practice in this court are subject to the jurisdiction of the court with respect to

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Murtha Amendment, i.e., remote from the enforcement mechanisms of state bar
counsel whenever they are employed in a state other than the one in which they have
chosen to be licensed.
The proposal also addresses potential limitations on the use of undercover
investigations. Stings and other forms of undercover investigation are highly valued
law enforcement techniques. For any number of reasons including the fact that federal
prosecutors are now more likely to direct, supervise, or advise those conducting
undercover investigations, conflicts have arisen under two sets of rules – the “no
contact” rules and the honesty rules.
The no contact rules, formulated in order to prevent lawyers from taking unfair
advantage of unsophisticated laymen, prohibit attorneys from approaching a
represented client unbeknownst to the client’s lawyer.9 For any number of reasons
law enforcement undercover investigations will ordinarily not be considered a
violation of the no contact rule in most jurisdictions, but there are exceptions, e.g.,
United States v. Hammad, 858 F.2d 834, 839-40 (2d Cir. 1988). The bill leaves the
their conduct in this court are subject to the jurisdiction of the court with respect to their
conduct to the same extent as members of the bar of this court. Special Assistant United
States Attorneys. Pursuant to 28 U.S.C. §543, the Attorney General may appoint Special
Assistant United States Attorneys for the district `when the public interest so requires.’
Special Assistant United States Attorneys appointed pursuant to section 543 shall not be
required to apply for and pass the next succeeding bar examantion for admission to the State
Bar of California as otherwise specified in Civil Local Rule 83.3c.3. Attorneys so permitted
to practice in this court are subject to the jurisdiction of the court with respect to their conduct
in this court and are subject to the jurisdiction of the court with respect to their conduct to the
same extent as members of the bar of this court.”); S.D.Cal.Crim.Local Rules, Crim.L.R.
1.1[e.] (“The provisions 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: . . . 20. Rule 83.3
Attorney Admissions, Standards. . . . .”).
9 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.”
The earlier ABA Code of Professional Responsibility, declares that “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,” DR 7-104(A).
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").

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no contact rule issue to be resolved by the uniform rules it anticipates will follow from
the study it mandates.10
The bill deals with the honesty rule issue more directly. The honesty rules ban
attorneys from making false statements during the course of their representation of
a client or from engaging in dishonest, deceitful, or fraudulent conduct under any
circumstances.11 The Oregon Supreme Court has held that an attorney violates the
honesty rules when he misidentifies himself and his purpose in the course of
investigating possible fraud committed against a client, In re Gatti, 330 Ore. 517, 8
P.3d 966 (2000). In doing so, it refused to recognize a law enforcement exception
for either state or federal authorities, 300 Ore. at 530-33, 8 P.3d at 974-76.
It has been suggested that the problems presented by Gatti could be overcome
if federal prosecutors simply disassociated themselves from undercover investigations
until the case was ready for prosecution. The Justice Department replies that early
attorney participation helps prevent constitutional violations and is more conducive
to successful prosecution.12
10 “In order to encourage the Supreme Court to prescribe, under chapter 131 of title 28, United
States Code, a uniform national rule for Government attorneys with respect to
communications with represented persons and parties, not later than 1 year after the date of
enactment of this Act, the Judicial Conference of the United States shall submit to the Chief
Justice of the United States a report, which shall include recommendations with respect to
amending the Federal Rules of Practice and Procedure to provide for such a uniform national
rule,” S.1437, §2(c)(1).
11 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, Disclipinary 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.
12 “The response of the Oregon bar to criticism of its interpretation of its rule is that law
enforcement agents are not bound by ethics rules and can continue to conduct undercover
operations without attorney involvement. This reflects a completely unrealistic view of
contemporary law enforcement and is terrible public policy to boot. Prosecutors conduct
investigations because they have to. There is no way to conduct a gang investigation, or an
organized crime investigation, or investigation of a large-scale drug operation, effectively
without the active involvement of prosecutors.
“Moreover, this is how it should be. The value of attorneys’ direct involvement in
investigations cannot be overestimated. Attorneys are well-schooled in the law and can help
ensure that investigations stay within constitutional bounds. There are many areas of the law
that are highly complex and specialized. In these areas–civil and criminal environmental law
enforcement, money laundering, securities fraud, cases arising out of acts of terrorism–federal
attorneys are critical because only they will understand the technical issues that are the
difference between a case that should be brought to trial and one that does not meet statutory
requirements,” The Effect of State Ethics Rules on Federal Law Enforcement; Hearing
Before the Subcomm. on Criminal Justice Oversight of the Senate Comm. on the Judiciary,
106th Cong., 1st Sess. 43 (1999)(prepared statement of Dep.Att’y Gen. Eric H. Holder, Jr.).

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The bill creates an undercover exception for federal litigators: “Notwithstanding
any provision of State law, including disciplinary rules, statutes, regulations,
constitutional provisions, or case law, a Government attorney may, for the purpose
of enforcing Federal law, provide legal advice, authorization, concurrence, direction,
or supervision on conducting covert activities, and participate in such activities, even
though such activities may require the use of deceit or misrepresentation,” S.1437,
proposed 28 U.S.C. 530B(d).13
Although the courts have generally held that a prosecutor’s ethical violations do
not in and of themselves constitute grounds for the exclusion of evidence, a few have
held otherwise.14 The bill declares that otherwise admissible evidence may not be
excluded from evidence in federal criminal proceedings on the basis of a prosecutor’s
ethical violations.
In addition to the no contact rule study, the bill directs the Judicial Conference
to report to the House and Senate Judiciary Committees within two years on (1) the
actual and potential conflicts between the performance of federal law enforcement
duties and ethical standards dictated by the bill, and (2) the amendments necessary to
resolve those conflicts.
S. 1435/§599A of H.R. 2506 (As Passed by the Senate)
Senator Wyden introduced the Federal Investigation Enhancement Act of 2001
for himself and Senator Leahy on September 19, 2001. It was incorporated into the
foreign operations appropriations act, H.R.2506, and passed the Senate as section
599A of that bill on October 24, 2001, 147 Cong.Rec. S10961. Unlike the more
comprehensive S. 1437, it does not repeal the McDade-Murtha Amendment but
13 The summary accompanying Senator Leahy’s introductory remarks makes it clear that the
provision was drafted in response to Gatti: “Subsection (d) specifically addresses the situation
in Oregon, where a state court ruling has seriously impeded the ability of Federal agents to
engage in undercover operations and other covert activities. See In re Gatti, 330 Ore. 517
(2000). This subsection ensures that these traditional law enforcement tools will be available
to federal prosecutors and agents,”147 Cong.Rec. S9511 (daily ed. Sept. 19, 2001)(Summary
of the “Professional Standards for Government Attorneys Act of 2001” accompanying the
introductory remarks of Sen. Leahy).
14 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)(same).

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imports into it an undercover law enforcement exception similar to that found in S.
1437.15
H.R. 3309
The Investigation Enhancement Act of 2001, introduced on November 15, 2001
by Representative Walden for himself and Representatives DeFazio, Wu, Hooley, and
Blumenauer, replicates S.1435 with one exception. It applies the exception both to
federal litigators and to Justice Department attorneys who are investigators rather
than litigators.16
APPENDIX
S. 1437
SECTION 1. SHORT TITLE.
This Act may be cited as the “Professional Standards for Government Attorneys Act of
2001”.
SEC. 2. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS.
(a) Section 530B of title 28, United States Code, is amended to read as follows:
“SEC. 530B. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS.
“(a) DEFINITIONS- In this section:
“(1) GOVERNMENT ATTORNEY- The term <Government attorney’--
“(A) means the Attorney General; the Deputy Attorney General; the Solicitor
General; the Associate Attorney General; the head of, and any attorney employed in, any
division, office, board, bureau, component, or agency of the Department of Justice; any
United States Attorney; any Assistant United States Attorney; any Special Assistant to
the Attorney General or Special Attorney appointed under section 515; any Special
Assistant United States Attorney appointed under section 543 who is authorized to
conduct criminal or civil law enforcement investigations or proceedings on behalf of the
United States; 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; any independent counsel, or employee of such counsel, appointed under
15 “Notwithstanding any provision of State law, including disciplinary rules, statutes,
regulations, constitutional provisions, or case law, a Government attorney may, for the
purpose of enforcing Federal law, provide legal advice, authorization, concurrence, direction
or supervision on conducting covert activities, and participate in such activities, even though
such activities may require the use of deceit or misrepresentation.”
16 “Notwithstanding any provision of State law, including disciplinary rules, statutes,
regulations, constitutional provisions, or case law, a Government attorney may, for the
purpose of enforcing Federal law, provide legal advice, authorization, concurrence, direction,
or supervision on conducting undercover activities, and any attorney employed as an
investigator or other law enforcement agent 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 may participate in such activities, even though such activities may
require the use of deceit or misrepresentation, where such activities are consistent with Federal
law.”

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chapter 40; and any outside special counsel, or employee of such counsel, as may be
duly appointed by the Attorney General; and
“(B) does not include any attorney employed as an investigator or other law
enforcement agent 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.
“(2) STATE- The term <State’ includes a Territory and the District of Columbia.
“(b) CHOICE OF LAW- Subject to any uniform national rule prescribed by the
Supreme Court under chapter 131, the standards of professional responsibility that apply to
a Government attorney with respect to the attorney's work for the Government shall be--
“(1) for conduct in connection with a proceeding in or before a court, the standards of
professional responsibility established by the rules and decisions of that court;
“(2) for conduct reasonably intended to lead to a proceeding in or before a court, the
standards of professional responsibility established by the rules and decisions of the court in
or before which the proceeding is intended to be brought; and
“(3) for all other conduct, the standards of professional responsibility established by the
rules and decisions of the Federal district court for the judicial district in which the attorney
principally performs his or her official duties.
“(c) LICENSURE- A Government attorney (except foreign counsel employed in special
cases)--
“(1) shall be duly licensed and authorized to practice as an attorney under the laws of
a State; and
“(2) shall not be required to be a member of the bar of any particular State.
“(d) COVERT ACTIVITIES- Notwithstanding any provision of State law, including
disciplinary rules, statutes, regulations, constitutional provisions, or case law, a Government
attorney may, for the purpose of enforcing Federal law, provide legal advice, authorization,
concurrence, direction, or supervision on conducting covert activities, and participate in such
activities, even though such activities may require the use of deceit or misrepresentation.
“(e) ADMISSIBILITY OF EVIDENCE- No violation of any disciplinary, ethical, or
professional conduct rule shall be construed to permit the exclusion of otherwise admissible
evidence in any Federal criminal proceeding.
“(f) RULEMAKING AUTHORITY- The Attorney General shall make and amend rules
of the Department of Justice to ensure compliance with this section.”.
(b) TECHNICAL AND CONFORMING AMENDMENT- The analysis for chapter 31
of title 28, United States Code, is amended, in the item relating to section 530B, by striking
“Ethical standards for attorneys for the Government” and inserting “Professional standards
for Government attorneys”.
(c) REPORTS-
(1) UNIFORM RULE- In order to encourage the Supreme Court to prescribe, under
chapter 131 of title 28, United States Code, a uniform national rule for Government attorneys
with respect to communications with represented persons and parties, not later than 1 year
after the date of enactment of this Act, the Judicial Conference of the United States shall
submit to the Chief Justice of the United States a report, which shall include recommendations
with respect to amending the Federal Rules of Practice and Procedure to provide for such a
uniform national rule.
(2) ACTUAL OR POTENTIAL CONFLICTS- Not later than 2 years after the date of
enactment of this Act, the Judicial Conference of the United States shall submit to the
Chairmen and Ranking Members of the Committees on the Judiciary of the House of
Representatives and the Senate a report, which shall include--
(A) a review of any areas of actual or potential conflict between specific Federal
duties related to the investigation and prosecution of violations of Federal law and the
regulation of Government attorneys (as that term is defined in section 530B of title 28,

CRS-10
United States Code, as amended by this Act) by existing standards of professional
responsibility; and
(B) recommendations with respect to amending the Federal Rules of Practice and
Procedure to provide for additional rules governing attorney conduct to address any
areas of actual or potential conflict identified pursuant to the review under subparagraph
(A).
(3) REPORT CONSIDERATIONS- In carrying out paragraphs (1) and (2), the Judicial
Conference of the United States shall take into consideration--
(A) the needs and circumstances of multiforum and multijurisdictional litigation;
(B) the special needs and interests of the United States in investigating and
prosecuting violations of Federal criminal and civil law; and
(C) practices that are approved under Federal statutory or case law or that are
otherwise consistent with traditional Federal law enforcement techniques.
S. 1435/§599A of H.R. 2506 (As Passed by the Senate)
SECTION 1. SHORT TITLE.
This Act may be cited as the “Federal Investigation Enhancement
Act of 2001”.
SEC. 2. COVERT INVESTIGATIVE PRACTICES CONDUCTED BY FEDERAL
ATTORNEYS.
Section 530B(a) of title 28, United States Code, is amended by inserting after the first
sentence, “Notwithstanding any provision of State law, including disciplinary rules, statutes,
regulations, constitutional provisions, or case law, a Government attorney may, for the
purpose of enforcing Federal law, provide legal advice, authorization, concurrence, direction
or supervision on conducting covert activities, and participate in such activities, even though
such activities may require the use of deceit or misrepresentation.”
H.R. 3309
SECTION 1. SHORT TITLE.
This Act may be cited as the “Investigation Enhancement Act of 2001”.
SEC. 2. UNDERCOVER INVESTIGATIVE PRACTICES CONDUCTED BY FEDERAL
ATTORNEYS.
Section 530B(a) of title 28, United States Code, is amended by inserting after the first
sentence the following: “Notwithstanding any provision of State law, including disciplinary
rules, statutes, regulations, constitutional provisions, or case law, a Government attorney may,
for the purpose of enforcing Federal law, provide legal advice, authorization, concurrence,
direction, or supervision on conducting undercover activities, and any attorney employed as
an investigator or other law enforcement agent 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 may participate in such activities, even though such activities may
require the use of deceit or misrepresentation, where such activities are consistent with Federal
law.”.

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