McDade-Murtha Amendment: Legislation in the 107th Congress Concerning Ethical Standards for Justice Department Litigators (CRS Report for Congress)
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| Release Date |
Dec. 18, 2001 |
| Report Number |
RL31221 |
| 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 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.
S. 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.
