McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys (CRS Report for Congress)
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| Release Date |
Dec. 18, 2001 |
| Report Number |
RL30060 |
| Report Type |
Report |
| Authors |
Charles Doyle, American Law Division |
| Source Agency |
Congressional Research Service |
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.
