Who should regulate the ethics of federal prosecutors?

Fordham Law Review

Volumn 65, Issue 1, 1996, Pages 355-427

  Little, Rory K ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF VIRGINIA   (United States)

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EID: 0030367649     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (389)

1. The Violent Crime Control and Law Enforcement Improvement Act of 1995, S. 3, 104th Cong., 1st Sess. § 502 (1995).
2. Id. Actually, the language of § 502 is better read not to mandate that the Attorney General promulgate such rules, but rather simply to authorize explicitly that if she does, such rules will preempt other ethical rules. Section 502's words are also ambiguous regarding whether the envisioned "rules of conduct" would apply only to prosecutors, or to all lawyers involved in federal "prosecutions" including defense counsel. But even the strongest proponents of Attorney General action in this area have not yet proposed that the Attorney General generate a preemptive code of ethics for defense attorneys.
3. See Harvey Berkman, "Thornburgh Rule" Law?, Nat'l L.J., Mar. 20, 1995, at A6.
4. No report or explanation accompanied § 502, nor was there any known discussion of the idea with the Attorney General or the Department of Justice prior to the bill's introduction. One hearing has been conducted on § 502, but the legislation was not enacted by the close of the 104th Congress.
5. Moribund, of course, does not mean rejected. Congressional inaction on a topic could mean at least three very different things: (i) that Congress decided the legislation was a bad idea; (ii) that Congress decided the legislation was unnecessary because the Attorney General already has sufficient statutory authorization, as discussed in part II infra; or (iii) that Congress did not think about the legislation at all while occupied with what it considered more pressing matters. Simply put, no conclusions can be drawn from this congressional inaction. Moreover, at the close of the 104th Congress, a subcommittee of the House Judiciary Committee held a hearing on an entirely contradictory bill, H.R. 3386, which would provide that "[a]n attorney for the Government shall be subject to State laws and [ethics] rules," and would direct the Attorney General to ensure accordingly. H.R. 3386, 104th Cong., 2d Sess. (1996); Letter from Henry Hyde, Chairman, Committee on the Judiciary, to Janet Reno, Attorney General (July 18, 1996) (on file with author). While this legislation also appears moribund, it muddies even further any effort to draw a clear picture of present congressional intentions.
6. David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801, 803 (1992).
7. See infra notes 14-50 and accompanying text. Professor Wilkins of course explained that his was a theoretical "framework" for structuring lawyer regulatory systems in general, one which would require specific modeling and refinement when applied to discrete groups of lawyers in the future. See Wilkins, supra note 6, at 803, 873, 885-86. See, e.g., Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. Tex. L. Rev. 639 (1994) (analyzing the ethical regulation of banking lawyers). Indeed, the necessary application of Professor Wilkins's constructs to specific contexts provides the happy occasion for the January 1996 American Association of Law Schools panel now published in this issue of the Fordham Law Review.
8. See infra notes 14-50 and accompanying text. Professor Wilkins of course explained that his was a theoretical "framework" for structuring lawyer regulatory systems in general, one which would require specific modeling and refinement when applied to discrete groups of lawyers in the future. See Wilkins, supra note 6, at 803, 873, 885-86. See, e.g., Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. Tex. L. Rev. 639 (1994) (analyzing the ethical regulation of banking lawyers). Indeed, the necessary application of Professor Wilkins's constructs to specific contexts provides the happy occasion for the January 1996 American Association of Law Schools panel now published in this issue of the Fordham Law Review.
9. This is perhaps unsurprising; federal criminal prosecutions constitute less than six percent of all criminal litigation, the bulk of which is handled by state prosecutors. See Rory K. Little, Myths and Principles of Federalization, 46 Hastings L.J. 1029, 1031 n.5 (1995). Moreover, criminal litigation is less than fifty percent of all litigation; civil cases far outnumber the criminal in all federal jurisdictions. Id. at 1039 n.41. Thus the roughly 7500 federal prosecutors are dwarfed by (they are less than one percent of) the roughly 846,000 total lawyers in the United States. Professor Wilkins's article therefore addresses the huge majority of all lawyers. See, e.g., Wilkins, supra note 6, at 865 n.291 (noting the small number of criminal defense attorneys). Nevertheless, federal prosecutors wield immense power with broad and largely unreviewable discretion. See, e.g., United States v. Armstrong, 116 S. Ct. 1480, 1486 (1996) (stating that United States Attorneys have broad discretion to enforce criminal laws); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (stating that the United States retains broad discretion as to whom to prosecute subject to constitutional constraints). See generally Steven A. Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. Pa. L. Rev. 1365, 1365-66 (1987) (noting the judiciary's lack of a systematic approach to reviewing prosecutorial activity). They thus comprise a lawyer-group whose significance is perhaps belied by their relatively small numbers, and who are worthy of specific attention.
10. This is perhaps unsurprising; federal criminal prosecutions constitute less than six percent of all criminal litigation, the bulk of which is handled by state prosecutors. See Rory K. Little, Myths and Principles of Federalization, 46 Hastings L.J. 1029, 1031 n.5 (1995). Moreover, criminal litigation is less than fifty percent of all litigation; civil cases far outnumber the criminal in all federal jurisdictions. Id. at 1039 n.41. Thus the roughly 7500 federal prosecutors are dwarfed by (they are less than one percent of) the roughly 846,000 total lawyers in the United States. Professor Wilkins's article therefore addresses the huge majority of all lawyers. See, e.g., Wilkins, supra note 6, at 865 n.291 (noting the small number of criminal defense attorneys). Nevertheless, federal prosecutors wield immense power with broad and largely unreviewable discretion. See, e.g., United States v. Armstrong, 116 S. Ct. 1480, 1486 (1996) (stating that United States Attorneys have broad discretion to enforce criminal laws); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (stating that the United States retains broad discretion as to whom to prosecute subject to constitutional constraints). See generally Steven A. Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. Pa. L. Rev. 1365, 1365-66 (1987) (noting the judiciary's lack of a systematic approach to reviewing prosecutorial activity). They thus comprise a lawyer-group whose significance is perhaps belied by their relatively small numbers, and who are worthy of specific attention.
11. Regulatory issues regarding professionals' ethics are not, of course, unique to lawyers. See, e.g., Richard L. Marcus, Who Should Discipline Federal Judges, and How?, 149 F.R.D. 375 (1993) (discussing disciplinary procedures for federal judges).
12. See Communications with Represented Persons, 28 C.F.R. § 77 (1995) [hereinafter Contacts Rule]; infra notes 99-112 and accompanying text (discussing the contacts rule).
13. For a discussion which concludes to the contrary, see Amy R. Mashburn, A Clockwork Orange Approach to Legal Ethics: A Conflicts Perspective on the Regulation of Lawyers by Federal Courts, 8 Geo. J. Legal Ethics 473 (1995).
14. Professor Fred Zacharias has provided a timely reminder that prosecutors do, after all, bear an obligation to "do justice." See Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45 (1991).
15. See Berger v. United States, 295 U.S. 78, 88 (1935); see also Robert H. Jackson, The Federal Prosecutor, 31 J. Crim. L. & Criminology 3 (1940) (arguing that a citizens safety lies with prosecutors who seek the truth).
16. See generally Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies over the Anti-Contact and Subpoena Rules," 53 U. Pitt. L. Rev. 291, 292 (1992) (stating that "[p]rofessional ethics rules have become the vortex of an increasingly bitter conflict between federal law enforcement officials and the defense bar, generally supported by state bar associations"); Vincent J. Marella, End the War Between Prosecution and Defense, 10 Crim. Just., No. 2, p. 34 (Summer 1995) (noting the deterioration of relations between the prosecutors and defense attorneys); Nancy J. Moore, Infra-Professional Warfare Between Prosecutors and Defense Attorneys: A Plea for an End to the Current Hostilities, 53 U. Pitt. L. Rev. 515, 515 (1992) (commenting on the ongoing conflict between the U.S. Department of Justice and the American Bar Association over the ethical conduct of prosecutors in their relationships with criminal defense attorneys).
17. See generally Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies over the Anti-Contact and Subpoena Rules," 53 U. Pitt. L. Rev. 291, 292 (1992) (stating that "[p]rofessional ethics rules have become the vortex of an increasingly bitter conflict between federal law enforcement officials and the defense bar, generally supported by state bar associations"); Vincent J. Marella, End the War Between Prosecution and Defense, 10 Crim. Just., No. 2, p. 34 (Summer 1995) (noting the deterioration of relations between the prosecutors and defense attorneys); Nancy J. Moore, Infra-Professional Warfare Between Prosecutors and Defense Attorneys: A Plea for an End to the Current Hostilities, 53 U. Pitt. L. Rev. 515, 515 (1992) (commenting on the ongoing conflict between the U.S. Department of Justice and the American Bar Association over the ethical conduct of prosecutors in their relationships with criminal defense attorneys).
18. See generally Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies over the Anti-Contact and Subpoena Rules," 53 U. Pitt. L. Rev. 291, 292 (1992) (stating that "[p]rofessional ethics rules have become the vortex of an increasingly bitter conflict between federal law enforcement officials and the defense bar, generally supported by state bar associations"); Vincent J. Marella, End the War Between Prosecution and Defense, 10 Crim. Just., No. 2, p. 34 (Summer 1995) (noting the deterioration of relations between the prosecutors and defense attorneys); Nancy J. Moore, Infra-Professional Warfare Between Prosecutors and Defense Attorneys: A Plea for an End to the Current Hostilities, 53 U. Pitt. L. Rev. 515, 515 (1992) (commenting on the ongoing conflict between the U.S. Department of Justice and the American Bar Association over the ethical conduct of prosecutors in their relationships with criminal defense attorneys).
19. See United States v. Hasting, 461 U.S. 499 (1983).
20. See Fred C. Zacharias, A Critical Look at Rules Governing Grand Jury Subpoenas of Attorneys, 76 Minn. L. Rev. 917, 919-25 (1992) [hereinafter Zacharias, A Critical Look].
21. See, e.g., John M. Burkoff, Prosecutorial Ethics: The Duty Not "To Strike Foul Blows", 53 U. Pitt. L. Rev. 271, 288 (1992) (citing examples of attorney fee forfeiture).
22. See John C. Jeffries, Jr. & Hon. John Gleeson, The Federalization of Organized Crime: Advantages of Federal Prosecution, 46 Hastings L.J. 1095, 1098-1099 (1995).
23. See, e.g., Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. Rev. 105 (1994).
24. See Symposium, 53 U. Pitt. L. Rev. 271 (1992).
25. Professor Zacharias noted the phenomenon and collected relevant authorities in 1992. See Zacharias, A Critical Look, supra note 16, at 917, 919; see also Cramton & Udell, supra note 14, at 359-386 (discussing the conflict between attorney-client privilege and subpoena power over defense attorneys).
26. Zacharias, A Critical Look, supra note 16, at 917-18.
27. Id. at 917 n.3; see Model Rules of Professional Conduct Rule 3.8(f) (1992) [hereinafter Model Rules] (providing inter alia that "[t]he prosecutor in a criminal case shall . . . not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless . . . the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding."). The decision to inject procedural restrictions on particular investigative techniques into an ethical code of general applicability may be questioned; some have argued that "it's not ethics" and have criticized turning the ethical codes into strategic weapons. See generally Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 Tex. L. Rev. 639 (1981) (arguing that the ABA rules do not promote ethical behavior); Frank O. Bowman, III, A Bludgeon By Any Other Name: The Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9 Geo. J. Legal Ethics 665 (1996) (arguing that these ethical rules are in conflict with long-standing principles of federal criminal law and are illegitimate as rules of ethics and rules of positive law). While the author strongly agrees with such concerns, the general debate about the appropriate content of ethical rules is not one this Article attempts to resolve.
28. Id. at 917 n.3; see Model Rules of Professional Conduct Rule 3.8(f) (1992) [hereinafter Model Rules] (providing inter alia that "[t]he prosecutor in a criminal case shall . . . not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless . . . the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding."). The decision to inject procedural restrictions on particular investigative techniques into an ethical code of general applicability may be questioned; some have argued that "it's not ethics" and have criticized turning the ethical codes into strategic weapons. See generally Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 Tex. L. Rev. 639 (1981) (arguing that the ABA rules do not promote ethical behavior); Frank O. Bowman, III, A Bludgeon By Any Other Name: The Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9 Geo. J. Legal Ethics 665 (1996) (arguing that these ethical rules are in conflict with long-standing principles of federal criminal law and are illegitimate as rules of ethics and rules of positive law). While the author strongly agrees with such concerns, the general debate about the appropriate content of ethical rules is not one this Article attempts to resolve.
29. Significantly, the ABA has now repealed the prior judicial approval requirement for attorney subpoenas in its model ethical rule. See Model Rules, supra note 23, Rule 3.8(f). That repeal came in the wake of adverse rulings striking down state bar ethical restrictions of the issuance of federal grand jury subpoenas as preempted by federal law (specifically, Fed. R. Crim. P. 17). See, e.g., Baylson v. Disciplinary Bd., 975 F.2d 102, 112 (3d Cir. 1992) (holding that the state rule may not be enforced against federal prosecutors), cert. denied, 507 U.S. 984 (1993). But cf. Whitehouse v. United States Dist. Court, 53 F.3d 1349 (1st Cir. 1995) (holding that a rule similar to Model Rule 3.8(f), adopted by a federal court as a local rule, is neither inconsistent with, nor overridden by, Rule 17 of the Federal Rules of Criminal Procedure).
30. United States v. Hammad, 846 F.2d 854 (2d Cir.), modified, 858 F.2d 834 (2d Cir. 1988), aff'd, 902 F.2d 1062 (2d Cir.), cert. denied, 498 U.S. 871 (1990). ABA Model Rules of Professional Conduct Rule 4.2 provided at that tune that: "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." Model Rules, supra note 23, Rule 4.2 (1989). Rule 4.2 carried forward the traditional non-communication rule of the ABA's 1969 Model Code of Professional Responsibility, DR 7-104(A)(1), which was itself derived from Canon 9 of the ABA's 1909 Canons of Professional Ethics, which had provided that "[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." See Stephen Gillers & Roy D. Simon, Jr., Regulation of Lawyers: Statutes and Standards 220 (1994).
31. See, e.g., Massiah v. United States, 377 U.S. 201, 210-11 (1964) (White, J., dissenting) (rejecting an argument, not even noted by the majority, that the ABA rule would apply even to a post-indictment undercover contact); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.) ("[T]he Government's use of such investigative techniques at this [pre-indictment] stage of a criminal matter does not implicate the sorts of ethical problems addressed by the [Model] Code [of Professional Responsibility]."), cert. denied, 452 U.S. 920 (1981); see also F. Dennis Saylor, IV & J. Douglas Wilson, Putting a Square Peg in a Round Hole: The Application of Model Rule 4.2 to Federal Prosecutors, 53 U. Pitt. L. Rev. 459, 467-74 (1992) (describing how different courts have applied Model Rule 4.2); Alafair S.R. Burke, Note, Reconciling Professional Ethics and Prosecutorial Power: The No-Contact Rule Debate, 46 Stan. L. Rev. 1635, 1642-45 (1994) (discussing the problem with limiting the no-contact rule to post-indictment communications).
32. See, e.g., Massiah v. United States, 377 U.S. 201, 210-11 (1964) (White, J., dissenting) (rejecting an argument, not even noted by the majority, that the ABA rule would apply even to a post-indictment undercover contact); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.) ("[T]he Government's use of such investigative techniques at this [pre-indictment] stage of a criminal matter does not implicate the sorts of ethical problems addressed by the [Model] Code [of Professional Responsibility]."), cert. denied, 452 U.S. 920 (1981); see also F. Dennis Saylor, IV & J. Douglas Wilson, Putting a Square Peg in a Round Hole: The Application of Model Rule 4.2 to Federal Prosecutors, 53 U. Pitt. L. Rev. 459, 467-74 (1992) (describing how different courts have applied Model Rule 4.2); Alafair S.R. Burke, Note, Reconciling Professional Ethics and Prosecutorial Power: The No-Contact Rule Debate, 46 Stan. L. Rev. 1635, 1642-45 (1994) (discussing the problem with limiting the no-contact rule to post-indictment communications).
33. Hammad, 846 F.2d at 861.
34. Richard Thornburgh, Ethics and the Attorney General: The Attorney General Responds, 74 Judicature 290, 290 (1991).
35. In re Doe, 801 F. Supp. 478, 489-93 (D.N.M. 1992) [hereinafter Thornburgh Memo] (reprinting the "Thornburgh Memo," so named after the Attorney General who issued it); see also United States v. Lopez, 765 F. Supp. 1433, 1445-46 (N.D. Cal. 1991) (describing "The Thornburgh Memo"), vacated and remanded, 989 F.2d 1032, superseded, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995). There is no direct subsequent history regarding the hotly debated Doe case because it was an opinion remanding the removal of a state disciplinary proceeding against a federal prosecutor; such remand orders are unappealable. Things Remembered, Inc. v. Petrarca, 116 S. Ct. 494, 497 (1995). The disciplinary proceeding in Doe is, however, the subject of later decisions following the Department of Justice's efforts to enjoin the New Mexico State Bar's disciplinary proceeding. See United States v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd on other grounds, 54 F.3d 825 (D.C. Cir. 1995). Because the D.C. Circuit ordered dismissal of the government's injunctive action solely due to lack of personal jurisdiction over the defendant (New Mexico's disciplinary chief), the underlying disciplinary matter remains pending in New Mexico without a ruling on the substantive contacts issue. The tortured history of the cases on the "contacts" question - with opinions on the merits vacated, remanded and unresolved on the merits - demonstrates the controversial and emotional character of the issues.
36. See Cramton & Udell, supra note 14, at 319 n.89, 321; see, e.g., William Glaberson, Thornburgh Policy Leads to a Sharp Ethics Battle, N.Y. Times, Mar. 1, 1991, at B11 (quoting a letter from the president of the ABA to Deputy Attorney General William P. Barr which stated the ABA's disagreement with the ethics rules announced by Thornburgh);
37. Monica Bay, ABA Rips Thornburgh Policies, The Recorder, Feb. 13, 1990, at 1 (reporting Thornburgh's belief that Justice Department employees do not have to follow certain professional responsibility rules); see also Mashburn, supra note 11, at 487 (describing the reaction of the ABA to Thornburgh's assertion of power); Burke, supra note 26, at 1648 (quoting an ABA report that denounced the Thornburgh memo).
38. 461 U.S. 499 (1983).
39. Id. at 504.
40. Id. at 505-07.
41. Id. at 506. Whether the prosecutors had actually committed misconduct was not addressed by the Court. See id. at 505.
42. Hasting was accompanied by what some have described as the Burger and Rehnquist Courts' restrictions on constitutional avenues of attack on various law enforcement techniques. See, e.g., Stephen A. Saltzburg, Foreword: The Flow and Ebb of Constitutional Criminal Procedure in the Warren and Burger Courts, 69 Geo. L.J. 151, 208 (1980) (arguing that the Burger Court was overprotective as well as underprotective of criminal defendants); Robert Weisberg, Foreword: Criminal Procedure Doctrine: Some Versions of the Skeptical, 76 J. Crim. L. & Criminology 832, 835 & n.6 (1985) (stating that "most writers on the Supreme Court simply assume that literal changes in doctrine or outcome carry important social and political influence," and giving examples of such writers). Thus, after Hasting, it could be argued that one of the very few tactical tools left for litigating against federal prosecutors was making ethics charges.
43. Hasting was accompanied by what some have described as the Burger and Rehnquist Courts' restrictions on constitutional avenues of attack on various law enforcement techniques. See, e.g., Stephen A. Saltzburg, Foreword: The Flow and Ebb of Constitutional Criminal Procedure in the Warren and Burger Courts, 69 Geo. L.J. 151, 208 (1980) (arguing that the Burger Court was overprotective as well as underprotective of criminal defendants); Robert Weisberg, Foreword: Criminal Procedure Doctrine: Some Versions of the Skeptical, 76 J. Crim. L. & Criminology 832, 835 & n.6 (1985) (stating that "most writers on the Supreme Court simply assume that literal changes in doctrine or outcome carry important social and political influence," and giving examples of such writers). Thus, after Hasting, it could be argued that one of the very few tactical tools left for litigating against federal prosecutors was making ethics charges.
44. See 21 U.S.C. §§ 853, 881 (1994). See generally United States v. Ursery, 116 S. Ct. 2135, 2140 (1996) (holding that civil forfeitures of property do not constitute "punishment" for double jeopardy purposes).
45. United States v. Monsanto, 491 U.S. 600, 606 (1989); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 627-28 (1989).
46. See, e.g., William Genego, The New Adversary, 54 Brook. L. Rev. 781, 783 (1988) (discussing the debate over claims that federal prosecutors engage in practices hostile to criminal defense attorneys); Steven Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889 (1987) (discussing the exception to the Bill of Rights in drug prosecutions); Michael L. Schreier, Comment, The Bill of Rights Becomes the Latest Casualty in the War on Drugs and Organized Crime-Surprisingly, Forfeiture of Attorney Fees is Consistent with the Fifth and Sixth Amendments to the United States Constitution: A Commentary on United States v. Monsanto, 109 S. Ct. 2657 (1989), and Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646 (1989)., 59 U. Cin. L. Rev. 905 (1991) (questioning whether Congress intended to include legitimate attorney fees within the criminal forfeiture net).
47. See, e.g., William Genego, The New Adversary, 54 Brook. L. Rev. 781, 783 (1988) (discussing the debate over claims that federal prosecutors engage in practices hostile to criminal defense attorneys); Steven Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889 (1987) (discussing the exception to the Bill of Rights in drug prosecutions); Michael L. Schreier, Comment, The Bill of Rights Becomes the Latest Casualty in the War on Drugs and Organized Crime-Surprisingly, Forfeiture of Attorney Fees is Consistent with the Fifth and Sixth Amendments to the United States Constitution: A Commentary on United States v. Monsanto, 109 S. Ct. 2657 (1989), and Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646 (1989)., 59 U. Cin. L. Rev. 905 (1991) (questioning whether Congress intended to include legitimate attorney fees within the criminal forfeiture net).
48. See, e.g., William Genego, The New Adversary, 54 Brook. L. Rev. 781, 783 (1988) (discussing the debate over claims that federal prosecutors engage in practices hostile to criminal defense attorneys); Steven Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889 (1987) (discussing the exception to the Bill of Rights in drug prosecutions); Michael L. Schreier, Comment, The Bill of Rights Becomes the Latest Casualty in the War on Drugs and Organized Crime-Surprisingly, Forfeiture of Attorney Fees is Consistent with the Fifth and Sixth Amendments to the United States Constitution: A Commentary on United States v. Monsanto, 109 S. Ct. 2657 (1989), and Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646 (1989)., 59 U. Cin. L. Rev. 905 (1991) (questioning whether Congress intended to include legitimate attorney fees within the criminal forfeiture net).
49. Review of various statistical sources reveals, for example, that the FBI budget has increased from $621 million in 1980 to over $2.5 billion today, and the DEA budget is up from $203 million in 1980 to $823 million today. Interview with DOJ budget official (Aug. 30, 1996).
50. See, e.g., Harvey Berkman, Jobs in the Law: Changing Picture, Nat'l L.J., Aug. 15, 1994, at A1 (noting a fourfold increase in the budget for U.S. Attorneys in the last decade).
51. U.S. Dept. of Just., Bureau of Just. Statistics: Justice Expenditure and Employment in the U.S., 1979, U.S. Gov't Printing Off., Wash. D.C. 1983 at 37 [hereinafter Justice Expenditures, 1979]; Ann. Rep. of the Director of the Admin. Off. of the U.S. Courts, 1980 at 129 (1980).
52. U.S. Dept. of Just., Bureau of Just. Statistics: Justice Expenditure and Employment in the U.S., 1979, U.S. Gov't Printing Off., Wash. D.C. 1983 at 37 [hereinafter Justice Expenditures, 1979]; Ann. Rep. of the Director of the Admin. Off. of the U.S. Courts, 1980 at 129 (1980).
53. U.S. Dept. of Just., Bureau of Just. Statistics, Bull.: Justice Expenditure and Employment, 1990, U.S. Gov't Printing Office, Wash. D.C. 1992 at 6 [hereinafter Justice Expenditures, 1990]; Ann. Rep. of the Director of the Admin. Off. of the U.S. Courts, 1990 at 10 (1990); see also, Little, supra note 8, at 1040 (providing a general discussion of the criminal workload figures for the federal courts).
54. U.S. Dept. of Just., Bureau of Just. Statistics, Bull.: Justice Expenditure and Employment, 1990, U.S. Gov't Printing Office, Wash. D.C. 1992 at 6 [hereinafter Justice Expenditures, 1990]; Ann. Rep. of the Director of the Admin. Off. of the U.S. Courts, 1990 at 10 (1990); see also, Little, supra note 8, at 1040 (providing a general discussion of the criminal workload figures for the federal courts).
55. In 1979, the total expenditures for federal prosecutors and legal services was almost $16 million; for federal public defenders it was $587,000. Justice Expenditures, 1979, supra note 41, at 37. This imbalance increased dramatically by 1990. In 1990 the prosecution expenditures had reached over $82 million, and defender expenditures were just over $2 million. Justice Expenditures, 1990, supra note 42, at 6. Also compare the federal prosecution employees figures cited in the text at notes 41-42, supra, with the 251 full-time federal public defender employees in 1979 and 589 employees in 1990. Justice Expenditures 1990, supra note 42, at 6; Ann. Rep. of the Director of the Admin. Off. of the U.S. Courts 1979 at 7 (1979).
56. In 1979, the total expenditures for federal prosecutors and legal services was almost $16 million; for federal public defenders it was $587,000. Justice Expenditures, 1979, supra note 41, at 37. This imbalance increased dramatically by 1990. In 1990 the prosecution expenditures had reached over $82 million, and defender expenditures were just over $2 million. Justice Expenditures, 1990, supra note 42, at 6. Also compare the federal prosecution employees figures cited in the text at notes 41-42, supra, with the 251 full-time federal public defender employees in 1979 and 589 employees in 1990. Justice Expenditures 1990, supra note 42, at 6; Ann. Rep. of the Director of the Admin. Off. of the U.S. Courts 1979 at 7 (1979).
57. Vincent J. Marella, End the War Between Prosecution and Defense, 10 Crim. Just. 34, 34 (1995).
58. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 2017-2034 (1984) (codified at 28 U.S.C § 991); see generally Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 4-5 (1988) (discussing the purpose of the federal sentencing statute).
59. 28 U.S.C. § 994(m) (1994); see also §§ 994(h), (i), (k) (expressing congressional desires for more, or longer, federal imprisonment sentences).
60. See generally Michael Tonry, Mandatory Minimum Penalties and the U.S. Sentencing Commission's "Mandatory Guidelines", 4 Fed. Sentencing Rptr. 129, 130-131 (1991) (discussing the impact of increased minimum sentence requirements).
61. The required terms are often quite substantial, ranging from a minimum of five years up to life without parole. See, e.g. 21 U.S.C. § 841(b) (1994) (providing mandatory minimum terms of imprisonment for narcotics violators).
62. See, e.g., Lee, supra note 19 at 109 (arguing that the government motion requirement to avoid mandatory minimums gives prosecutors great discretion in sentencing); Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681 (1992) (concluding that prosecutors retain greater discretion in sentencing than judges). This author would argue that, in fact, the discretion of federal prosecutors has not been "increased" by changes in sentencing policies; rather, the discretion of other actors in the system (judges, defense attorneys, and parole authorities) has been so reduced that by comparison, the prosecutor's remaining discretion looks larger. Yet mandatory minimum sentencing statutes and specific sentencing guidelines also restrain prosecutors' discretion. In addition, internal Department of Justice constraints on charging decisions and plea agreements also limit federal prosecutors' bargaining discretion. See, e.g., Memorandum from Attorney General Re: Principles of Federal Prosecution (Oct. 12, 1993, "bluesheet") (on file with author) (directing that federal prosecutors consider in evaluating plea agreements: (i) the sentencing guidelines applicable to a particular charge; (ii) the proportionality of the sentencing range to the seriousness of the defendant's conduct; and (iii) "whether the charge achieves such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation"). The fact is, the sentencing discretion of every federal actor in the criminal justice system has been reduced by congressional legislation in the area since 1984. This Article, however, is not the place for a debate about the extent of federal prosecutors' discretion. Needless to say, they do retain significant discretion, and whether entirely accurate or not, perceptions of increased federal prosecutorial power since the mid-1980s are widespread and fuel the debate about prosecutors' ethics.
63. For a particularly extreme expression of such concerns, see Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, 405-409, 418-422 (1992).
64. See Burke, supra note 26; Cramton & Udell, supra note 14; Saylor & Wilson, supra note 26; Moore, supra note 14.
65. The article by F. Dennis Saylor and J. Douglas Wilson, supra note 26, provides a notable exception and was written by two Department of Justice attorneys who were involved in the initial Thornburgh policies regarding contacts. See also Mashburn, supra note 11, at 485 (noting the "crippling uncertainty" created by the contacts cases).
66. Model Rules, supra note 23, Rule 4.2 (1994). Until an August 1995 amendment by the ABA, the rule used to say "parties," not persons; most states still retain the old language. See Model Rules, supra note 23, Rule 4.2 (1996). The effect of the amendment was to liberalize the applicable scope of the rule, and not restrict it only to persons who are "party to a formal adjudicative proceeding." Model Rules, supra note 23, Rule 4.2 cmt. 3 (1996). It is relevant to note that the Attorney General independently decided to write her own rule by reference to "persons", and not just parties, in 1993, prior to the ABA amendment. Thus it is counter-factual to assume that Attorney General-generated ethical rules will necessarily, or even likely, be narrowly construed. For convenience this Article will generally use the ABA's Model Rules as its reference point; of course the states have often adopted rules that differ in greater or lesser degrees. But the basic "no-contact" rule is a conception expressed in every jurisdiction. See generally Gillers & Simon, supra note 25, at 219-20 (listing state variations on Model Rule 4.2).
67. Contacts Rule, supra note 10, § 77.12. The Attorney General has the same statutory authority as is granted to all "Department heads" in 5 U.S.C. § 301, to issue regulations governing (inter alia) the "conduct of its employees." See infra notes 137, 154-65 and accompanying text.
68. See, e.g., Resolution of the Conference of Chief Justices (Aug. 4, 1994) ("strongly oppos[ing]" the regulation and urging Conference members not to defer to it); Maria Rubin, The Thornburgh Memo, Now the Reno Rule: A Case of Ethics, N.Y. L.J. 1 (Sept. 23, 1994) (arguing that the "Reno rule . . . threatens serious disruption of the attorney-client relationship protected by the Code of Professional Responsibility").
69. See, e.g., Resolution of the Conference of Chief Justices (Aug. 4, 1994) ("strongly oppos[ing]" the regulation and urging Conference members not to defer to it); Maria Rubin, The Thornburgh Memo, Now the Reno Rule: A Case of Ethics, N.Y. L.J. 1 (Sept. 23, 1994) (arguing that the "Reno rule . . . threatens serious disruption of the attorney-client relationship protected by the Code of Professional Responsibility").
70. Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992) (invalidating the analogous Pennsylvania rule). But see Whitehouse v. United States Dist. Court, 53 F.3d 1349, 1366 (1st Cir. 1995) (reaching the opposite conclusion regarding a federal court's "local" rule similar to Model Rule 3.8(f)).
71. See supra note 24 and accompanying text. It will be interesting to see whether state authorities that have adopted the ABA's version of Rule 3.8(f) will now also adopt the ABA's repeal of the judicial approval requirement. If they do, cases like Whitehouse will be moot because most federal courts have simply adopted whatever formulation of ethical rules their state has adopted by reference.
72. And in fact, Rule 4.2 is not inconsistent with the Attorney General regulation, because 4.2 has an "authorized by law" exception and the Attorney General's regulation, if it is valid, constitutes "law."
73. ABA Comm. on Professional Ethics and Professional Responsibility, Formal Op. 396 (1995). The opinion was divided, with two of eight members dissenting. It represents an extreme interpretation of Rule 4.2. For example, it extends the no-contact rule for corporate employees beyond a "control group" to "anyone 'whose . . . statement may constitute an admission.'" Id. at 16; cf. Wright v. Group Health Hosp., 691 P.2d 564, 569 (Wash. 1984) (en banc) (limiting rule to those with "managing" authority). The author is currently a member of this ABA Committee, but was not a member when Opinion 95-396 was issued.
74. Interestingly, while there has been sabre-rattling regarding the Attorney General's regulation since it was adopted in late 1994, see infra note 112, there has yet to be a direct litigation conflict about it. A direct resolution was anticipated in the Ferrara case, but the D.C. Circuit declined to address the substantive issue, issuing instead a narrow procedural ruling that the district court had lacked personal jurisdiction over the head of New Mexico's disciplinary authority. United States v. Ferrara, 54 F.3d 825, 832 (D.C. Cir. 1995).
75. The Office of Attorney General was created in the first Judiciary Act in 1789. ch. 20, 1 Stat. 92-93 (1789) (establishing the office of the Attorney General, presumably an Executive Branch official "whose duty it shall be to prosecute and conduct all suits . . . in which the United States shall be concerned, and to give his advice . . . when required by the President of the United States"). See generally Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy 15-40 (1992) (discussing the history of the office of the Attorney General and the Department of Justice); Susan L. Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L. J. 561, 567 (discussing the position and responsibility of the Attorney General at its inception).
76. The Office of Attorney General was created in the first Judiciary Act in 1789. ch. 20, 1 Stat. 92-93 (1789) (establishing the office of the Attorney General, presumably an Executive Branch official "whose duty it shall be to prosecute and conduct all suits . . . in which the United States shall be concerned, and to give his advice . . . when required by the President of the United States"). See generally Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy 15-40 (1992) (discussing the history of the office of the Attorney General and the Department of Justice); Susan L. Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L. J. 561, 567 (discussing the position and responsibility of the Attorney General at its inception).
77. Undeniably, Reno's regulation differed from Attorney General Barr's initial proposal, in tone as well as in some matters of substance. It was also far better developed than the simple seven-page Thornburgh memo. Nevertheless, it did not retreat from Attorney General Thornburgh's initial claim of preemptive authority; and it carries forward six exceptions for contacts made by federal prosecutors with post-indictment represented parties. Contacts Rule, supra note 10, § 77.6. To many outside observers, the "Reno Rule" is more similar to the Thornburgh memo than politics would have predicted.
78. See Jamie S. Gorelick, Government Contact with Persons Represented by Counsel, Remarks at the Judicial Conference of the District of Columbia Circuit (May 1990).
79. See supra notes 14-50 and accompanying text (discussing root causes in mid-1980s).
80. Cramton & Udell, supra note 14, at 315; see also Fred C. Zacharias, Federalizing Legal Ethics, 73 Tex. L. Rev. 335, 339-41 (1994) ("The rules governing professional conduct in the various state and federal jurisdictions have become irreconcilably diverse.").
81. Compare, e.g., United States v. Hammad, 846 F.2d 854, 858-60 (2d Cir. 1988) (holding that ABA Model Code rule prohibiting lawyer from communicating with a party reopresented by counsel applies to criminal prosecutions), modified, 858 F.2d 834 (2d Cir. 1988), aff'd, 902 F.2d 1062 (2d Cir.), cert. denied, 498 U.S. 871 (1990), with United States v. Ryans, 903 F.2d 731, 734-41 (10th Cir. 1990) (rejecting Hammad and interpreting ABA Model Code provision as not applying to "undercover investigations of unindicted suspects" who have counsel). This was an entirely new development; contrary claims of "historically" imposed state bar discipline against federal prosecutors are unsupported and simply inaccurate. Cf. Corinna B. Lain, Prosecutorial Ethics Under the Reno Rule: Authorized by Law?, 14 Crim. Just. Ethics 17, 26 (Summer/Fall 1995) (supporting the "historical" claim only by reference to a law journal article, which itself cites cases only from 1979 and no cases based on violation of an ethical rule as opposed to a federal statute).
82. For example, in United States v. Lopez the federal prosecutor acted in San Francisco but was a member only of the Arizona State Bar. 765 F. Supp. 1433 (N.D. Cal. 1991), vacated and remanded, 989 F.2d 1032 (9th Cir.), superseded, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995). A reasonable prosecutor attempting to evaluate a proposed course of action a priori might plausibly consider California's unique rules, Arizona's rules, the ABA's 1970 Model Code, its 1983 Model Rules, or the Department of Justice's memoranda emanating from Attorneys General of both parties (Bush's and Carter's). These rules have many differences in language, not to mention in interpretive application by their respective disciplinary bodies.
83. For example, in the "Unabomber" case, federal prosecutors from New Jersey, California, Montana and Washington D.C. have been assigned to the prosecution team. See Victoria Slind-Flor, New Unabomber Prosecutor Team, Nat'l L.J., Apr. 22, 1996, at A13. Almost all sections in the Department of Justice's Criminal Division, based in Washington D.C., employ attorneys to investigate and prosecute cases within their subject matter areas in many different jurisdictions across the nation. Historically, there have not been sufficient numbers of Assistant U.S. Attorneys in all districts to handle particularly complex or unusual matters, and the Attorney General has had to move her attorneys around to meet the Department's needs. Congress has recognized this reality, by requiring only that federal prosecutors be a member of the bar of any recognized jurisdiction rather than of the particular State in which they are based. See infra notes 262-66 and accompanying text (discussing this legislative requirement).
84. Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,911 (1994) (to be codified at 28 C.F.R. § 77).
85. Id.
86. Specifically Richard Thornburgh, William Barr, and Janet Reno.
87. United States v. Hammad, 846 F.2d 854 (2d Cir.), modified, 858 F.2d 834 (2d Cir. 1988), aff'd, 902 F.2d 1062 (2d Cir.), cert. denied, 498 U.S. 871 (1990).
88. United States v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd, 54 F.3d 825 (D.C. Cir. 1995).
89. United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991), vacated and remanded, 989 F.2d 1032 (9th Cir.), superseded, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995).
90. See supra note 25 (describing Hammad's subsequent history).
91. See Ferrara, 54 F.3d at 826-827.
92. Although the Ninth Circuit initially vacated the district court's opinion in May 1993, its opinion contained damaging, and clearly erroneous, factual statements about the federal prosecutor's personal behavior. Thus the Solicitor General took the unusual step of authorizing a rehearing en banc petition. It was not until the panel amended its erroneous statements about the prosecutor in September 1993 that the Department was able to live with the opinion; by that time both Attorneys General Barr and Reno had published proposed versions of the preemptive contacts regulation.
93. In the interest of full disclosure the author must note that he was Chief of the U.S. Attorney's Appellate Section in San Francisco during the pendency of Lopez, and was a member of the legal team representing the government's position, as well as the interests of the individual prosecutor involved, on appeal.
94. 21 U.S.C. § 841(b) (1994) provides that at least a ten-year imprisonment sentence must be imposed on persons convicted of violations involving over five kilograms of cocaine. Lopez's recommended sentence under the sentencing guidelines likely would have been in excess of ten years. But the statutory mandatory minimum is most significant, because only a government motion reciting "substantial assistance" by the defendant to the government's prosecution efforts can result in a sentence lower than a required mandatory minimum. See 18 U.S.C. § 3553(e) (1994). The intent of this provision, and one of its very real effects, is to compel defendants with helpful information to plea bargain with the government at an early stage of the proceedings. Other aspects of the mandatory minimum penalty structure render it highly controversial. See generally Hon. William W. Schwarzer, Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges, 66 S. Cal. L. Rev. 405 (1992) (disclosing research finding about sentencing disparities under the mandatory minimum sentencing laws); David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1286-89 (1995) (discussing mandatory minimum sentencing for offenses involving crack cocaine and the disparate impact of penalties on black defendants).
95. 21 U.S.C. § 841(b) (1994) provides that at least a ten-year imprisonment sentence must be imposed on persons convicted of violations involving over five kilograms of cocaine. Lopez's recommended sentence under the sentencing guidelines likely would have been in excess of ten years. But the statutory mandatory minimum is most significant, because only a government motion reciting "substantial assistance" by the defendant to the government's prosecution efforts can result in a sentence lower than a required mandatory minimum. See 18 U.S.C. § 3553(e) (1994). The intent of this provision, and one of its very real effects, is to compel defendants with helpful information to plea bargain with the government at an early stage of the proceedings. Other aspects of the mandatory minimum penalty structure render it highly controversial. See generally Hon. William W. Schwarzer, Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges, 66 S. Cal. L. Rev. 405 (1992) (disclosing research finding about sentencing disparities under the mandatory minimum sentencing laws); David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1286-89 (1995) (discussing mandatory minimum sentencing for offenses involving crack cocaine and the disparate impact of penalties on black defendants).
96. The Federal Bail Reform Act, 18 U.S.C. § 3142(e) (1994), states a rebuttable presumption that narcotics traffickers should be detained pre-trial. Lopez was not likely to be released unless he could strike a cooperation deal with the government. See United States v. Lopez, 765 F. Supp. 1433, 1439-40 (N.D. Cal. 1991), vacated and remanded, 989 F.2d 1032 (9th Cir.), superseded, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995).
97. The co-defendant's lawyer later testified that this was because Lopez "feared that [his lawyer] . . . would resign," Lopez, 4 F.3d at 1457, because Lopez understood that his lawyer had a policy of not representing any criminal defendant who wanted to cooperate with the government. Lopez, 765 F. Supp. at 1438-39. The co-defendant's lawyer did not say this to the prosecutor, however, and the prosecutor assumed that Lopez did not want his lawyer to know about possible cooperation because that lawyer was being paid by others higher up in the drug ring, a common problem in narcotics conspiracy cases. Lopez, 4 F.3d at 1457. This was not an unreasonable assumption, in light of investigative information the prosecutor possessed that Lopez's family had been threatened. See Brief for the United States at 6, United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993) (No. 91-10274) (filed with the Ninth Circuit on Oct. 25, 1991) [hereinafter Lopez Brief] (on file with author).
98. Lopez brief, supra note 81, at 7.
99. Transcript of Proceedings at 4-25, United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1990) (No. 89-0689) (on file with author).
100. Lopez, 4 F.3d at 1457; see Lopez, 765 F. Supp. at 1442-43.
101. Lopez, 4 F.3d at 1457; Lopez, 765 F. Supp. at 1442. There is no constitutional problem with such an initiated waiver by a defendant in custody. Moreover, there is a strong counter-balancing constitutional right of self-representation under Faretta v. California, 422 U.S. 806 (1975), which is undoubtedly at odds with any reading of Rule 4.2 that would prohibit a defendant's waiver. An entirely prohibitory reading is likely unconstitutional, and should be avoided.
102. Faretta, 422 U.S. at 812.
103. Cramton & Udell, supra note 14 at 351-52; see Model Rules, supra note 23, Rule 4.2; Ariz. R. Prof. Conduct ER 4.2; Cal. R. Prof. Conduct 2-100 (C)(3) (West 1996). Only Florida has eliminated the "authorized by law" exception, although the comment to its rule still confusingly retains a reference to the concept. See Fla. R. Prof. Conduct 4-4.2 & cmt. (West 1996).
104. 4B Op. Off. Legal Counsel 576, 576 (1980); Thornburgh Memo, supra note 29.
105. 4 F.3d at 1461.
106. United States v. Lopez, 765 F. Supp. 1433, 1462 n.49 (S.D. Cal. 1991), vacated and remanded, 989 F.2d 1032 (9th Cir.), superseded, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995). This complaint was made in Arizona, where the prosecutor (a former Chief of the U.S. Attorney's criminal division in Phoenix) is a member of the bar. The propriety of filing this complaint is highly debatable, even if regrettably consistent with an increasing tendency to use personalized ethical charges as strategic weaponry. Indeed, even the critical district judge in Lopez noted, while dismissing the indictment against Lopez, that because the federal prosecutor had followed Department of Justice policy, "referral [of the prosecutor] to the state bar for disciplinary proceedings would be unfair." Id. at 1462.
107. Order of Dismissal, In re Member of the State Bar of Arizona, No. 90-1922 (July 23, 1996) (on file with author). In the interim, defendant Lopez was tried, convicted, and sentenced to over 11 years (135 months) imprisonment. Lopez is currently appealing that sentence, but the government is cross-appealing because of the same district judge's unfounded critical remarks in support of a downward departure. Lopez Brief, supra note 81, at 17-18.
108. The toll is psychological, as well as monetary if the prosecutor must retain counsel or pay any costs at all associated with the charges, such as simple long-distance telephone charges to keep track of events hundreds of miles away.
109. The final cruel irony is that Lopez's lawyer's decision to block Lopez's potential cooperation effectively sent Lopez to jail for the very mandatory imprisonment term that he might have avoided by contacting the prosecutor. See supra note 91. Thus the Ninth Circuit had no kind words for Lopez's original lawyer; two judges wrote separately to condemn the ethics of that attorney's apparent policy of refusing to pursue cooperation with the government even when it represents the only possible relief for a client facing a lengthy mandatory imprisonment sentence. Lopez, 4 F.3d at 1464-65 (Fletcher, J., concurring, joined by T. Nelson, J.).
110. See Lopez, 4 F.3d at 1463-64. Although the Ninth Circuit panel's initial opinion in March 1993 reversed the sanction of dismissal, it was hostile in tone and left in place the district judge's completely unsupported personal accusation of misleading conduct against the individual federal prosecutor. See Lopez, 989 F.2d at 1041. The Solicitor General authorized a petition for rehearing with a suggestion of rehearing en banc. In response to the government's demonstration that there was absolutely no record evidence to support any accusation of misconduct against the prosecutor and the serious suggestion that an en banc court should review the panel s opinion, the panel amended its earlier opinion to remove the language offensive to the individual prosecutor. Compare Lopez 4 F.3d at 1462 ("the finding is not sustainable" based on the record) with Lopez 989 F.2d at 1041 (accepting the district court finding). However, this did not occur until September 1993, and the erroneous prior opinion damaging to the prosecutor was printed in the hardbound Federal Reporter volume. That initial opinion continues to be erroneously cited by researchers. See Lyn M. Morton, Note, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline?, 7 Geo. J. Legal Ethics 1083, 1096-97 (1994) (reciting the erroneous finding despite the Ninth Circuit's 1993 correction). This fact, and the panel's overall unfavorable tone toward the Department of Justice, could provide little encouragement to the Attorney General that fair results could be ensured by working diligently within the regulatory status quo.
111. Lopez is not over even now. Although the Ninth Circuit directed that on remand, "resolution of [evidentiary] conflicts would be essential" before imposing any sanction for the government's actions in the case, Lopez, 4 F.3d at 1462, the district court granted a downward sentencing departure for Lopez on the basis of alleged "government misconduct" but without conducting any hearing to resolve the evidentiary conflicts. See Lopez Brief, supra note 81, at 32-35. Such unsubstantiated statements continue to besmirch an experienced and honest prosecutor, and the government has filed an appeal from the sentencing judgment. Id.
112. Janet Reno took the oath of office to become Attorney General on March 12, 1993. Sam V. Meddis, 'Break With The Past': Reno Offers Creative Tactics, USA Today, Mar. 12, 1993 at 4A.
113. See generally Bowman, supra note 23 (explaining how ethical rules conflicted with long-standing principles of federal criminal law). In issuing its Model Rules, the ABA has strongly advised against such tactical use of ethical provisions: "The Rules are designed to provide guidance . . . . [T]he purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons." Model Rules, supra note 23, Scope at 8.
114. Contacts Rule, supra note 10, § 77.11. Under the final regulation, the Attorney General has "exclusive authority" to interpret and apply the regulation to specific factual contexts. Id. Only when the Attorney General determines that a federal prosecutor's violation of her regulation has been "willful" does the rule leave to state disciplinary authorities the decision of what discipline (in addition to any Departmental discipline) to impose on that attorney. Id. § 77.12.
115. See Communications with Represented Persons, 58 Fed. Reg. 39,976 (1993)
116. See Communications with Represented Persons, 59 Fed. Reg. 10,086 (1994) (to be codified at 28 C.F.R. § 77) (proposed Mar. 3, 1994). Publication of proposed changes in the United States Attorneys Manual is not required by law and is quite unusual. It is a measure of Attorney General Reno's good faith that she chose to advise all interested parties of the content of these proposed internal rules, and sought their comments on these changes as well as on the substantive rule.
117. See Communications with Represented Persons, 59 Fed. Reg. 39,910 (1994) (to be codified at 28 C.F.R. § 77).
118. See, e.g., United States v. Balter, 91 F.3d 427, 435-36 (3d Cir. 1996) ("[W]ith the exception of the Second Circuit, every court of appeals . . . has held . . . that rules such as . . . Rule 4.2 do not apply to pre-indictment investigations."). As noted in the final publication notice, "this rule is not designed to diminish the ethical responsibilities of government attorneys," but rather only to clarify them and "provide a uniform rule." 59 Fed. Reg. at 39,913.
119. Contacts Rule, supra note 10, § 77.1; cf. State v. Nicholson, 463 P.2d 633, 636 (Wash. 1969) (holding that contacts rule does not apply to criminal matters at all).
120. Contacts Rule, supra note 10, § 77.5.
121. Contacts Rule, supra note 10, §§ 77.8, 77.9; see also 59 Fed. Reg. 10,086, 10,097 (reprinting the U.S. Attorney Manual). Cf. United States v. Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973) (holding that the no-contacts rule was never meant to apply to preindictment setting), cert. denied, 415 U.S. 989 (1974).
122. See Contacts Rule, supra note 10, § 77.10.
123. See Contacts Rule, supra note 10, § 77.6; see also 59 Fed. Reg. at 39,919-22 (discussing comments received by the department in response to the proposed exceptions). Of course it is true that the regulation is less restrictive than the Hammad vision, or the now-discredited district court's interpretation in Lopez. But these cases were undoubtedly a distinct minority view. By placing restrictions on prosecutors in jurisdictions where few or none existed before, the Reno rule significantly advanced the interests of the Department of Justice's critics. It is far from a demonstration of any "fox guarding the henhouse" critique. See Lain, supra note 66, at 21 & n.69.
124. See 59 Fed. Reg. at 10,097-99 (reprinting changes to U.S. Attorney's Manual); 59 Fed. Reg. at 39,928 (final U.S. Attorney's Manual changes to be "substantially similar" to March 1994 draft). The U.S. Attorneys Manual also extends the general prohibition on post-charge contacts to pre-indictment "targets" of criminal investigations, an extremely substantial extension of existing regulating authority. Id.
125. 59 Fed. Reg. at 39,918. This enforcement promise extended to violations of U.S. attorney regulations, not merely to violations of the C.F.R.
126. There is absolutely no evidence that Attorney General Reno will not enforce her promise on the no-contacts regulations; any suggestion to the contrary is unsupported cynicism flowing from a prior time when there was no regulation, and the Department's internal disciplinary office was relatively new. More significantly, no state has ever disciplined a federal prosecutor for violation of an ethical rule. Thus to suggest that Department of Justice monitoring will be less effective than "polic[ing] by an external source," is entirely ahistorical. Lain, supra note 66, at 19, 21 (making such a suggestion).
127. 59 Fed. Reg. at 39,927.
128. Immediately after promulgation of the contacts regulation, a number of state authorities threatened to discipline federal prosecutors who violated state contacts rules, "promulgation of the proposed regulation notwithstanding." Letter from Stanley G. Feldman, Chief Justice, Arizona Supreme Court, to Janet A. Napolitano, United States Attorney, District of Arizona (Aug. 26, 1994). Accord Resolution of the Ill. State Bar Assoc. (Nov. 18, 1994) (threatening enforcement of state rules notwithstanding 28 C.F.R. § 77); Letter from Joseph T. Walsh, Justice, Supreme Court of Delaware, to David C. Glebe, Delaware Disciplinary Counsel (Sept. 21, 1994) ( that "federal prosecutors in Delaware relying on the Department's new rule may be acting at their peril").
129. Such "local" federal court rules are adopted for use by a particular federal district or circuit court by authority of 28 U.S.C. § 2071 (1994), as opposed to uniform rules of national application promulgated by the U.S. Judicial Conference under the Rules Enabling Act, Pub. L. No. 100-702, 102 Stat. 4648-50 (codified at 28 U.S.C. §§ 2072-74) and approved by Congress. There are, as of now, no such national court rules addressing lawyer ethics. Because of the congressional submission requirement in § 2074, such national rules undoubtedly would pose a far more difficult issue if they were in conflict with an Attorney-General-promulgated set of ethical rules. An unadulterated separation of powers confrontation likely would be presented.
130. 5 U.S.C. § 553(b) (1994).
131. 5 U.S.C. § 706(2)(A) (1994).
132. 5 U.S.C. § 301 (1994); see infra notes 137, 154-64 and accompanying text. A less formal promulgation, such as the "Thornburgh Memo," lacks preemptive power because congressional authorization cannot be said to embrace such a large, informal power.
133. 28 U.S.C. § 2071 (1994).
134. 135 U.S. 1 (1890).
135. 177 U.S. 459 (1900).
136. See infra parts II.C.2, II.C.3.
137. U.S. Const, art. II, § 2.
138. 5 U.S.C. § 101 (1994) (listing the Executive departments); 28 U.S.C. § 503 (1994) (designating the Attorney General as "the head of the Department of Justice").
139. See 1 Stat. 92-93 (1789).
140. 5 U.S.C. § 101. Professor Susan Bloch has usefully noted that the 1789 Attorney General's position was "much weaker than the position we know today," and that the first Congress was relatively more concerned with the other three original cabinet offices of Secretary of War, Foreign Affairs, and Treasury. Bloch, supra note 61, at 567, 570-82. Much rich historical data is provided by Professor Bloch. Her conclusions, however, do not detract from those offered here: all executive branch offices are more powerful today than envisioned in 1789; and the Attorney General's position as one of the original "Big Four" cannot be ignored as indicative of her deep historical stature.
141. 28 U.S.C. § 503 (1994). Interestingly an initial draft of the First Judiciary Act would have had the Attorney General appointed by the Supreme Court; and the bill as finally passed was simply silent as to who would appoint the Attorney General. See Bloch, supra note 61, at 567 n.24, 571 n.32.
142. Pub. L. No. 89-554, 80 Stat. 611, (codified at 28 U.S.C. § 501); 5 U.S.C. § 101.
143. U.S. Const, art. II, § 2.
144. U.S. Const, art. II, § 3.
145. This is not an argument I have seen anywhere; it is the subject of an article on which I am currently working. The idea is that "faithfully" carries with it some connotation of good ethics, as well as "loyalty" to congressional directives. Leading discussions of the President's "faithful execution" obligations do not address this question. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 582-85 (1994) (arguing that the hierarchical structure of Article II is confirmed by the Take Care Clause); Arthur S. Miller, The President and Faithful Execution of the Laws, 40 Vand. L. Rev. 389 (1987) (addressing the Faithful Execution provision in the contexts of (1) presidential power when the Constitution is silent; (2) the presidency and statutory mandates; (3) the president's constitutional duty to enforce Supreme Court decrees; and (4) the President and international law).
146. This is not an argument I have seen anywhere; it is the subject of an article on which I am currently working. The idea is that "faithfully" carries with it some connotation of good ethics, as well as "loyalty" to congressional directives. Leading discussions of the President's "faithful execution" obligations do not address this question. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 582-85 (1994) (arguing that the hierarchical structure of Article II is confirmed by the Take Care Clause); Arthur S. Miller, The President and Faithful Execution of the Laws, 40 Vand. L. Rev. 389 (1987) (addressing the Faithful Execution provision in the contexts of (1) presidential power when the Constitution is silent; (2) the presidency and statutory mandates; (3) the president's constitutional duty to enforce Supreme Court decrees; and (4) the President and international law).
147. See 28 U.S.C. § 519 (1994) ("[T]he Attorney General shall supervise all litigation . . . and shall direct all United States attorneys [and] assistant United States Attorneys."); see also 28 U.S.C. § 547 (1994) ("[U.S. Attorneys] shall (1) prosecute for all offenses against the United States"). Centralized supervisory authority has not always been the case; until 1870 when the Department of Justice was created, the federal "District Attorneys" were "not responsible to the Attorney General." Clayton, supra note 61, at 16; see generally John G. Heinberg, Centralization in Federal Prosecutions, 15 Mo. L. Rev. 244 (1950) (discussing the development of centralized supervisory authority).
148. 28 U.S.C. § 515(a) (1994).
149. Id. § 516 (1994) (emphasis added).
150. Id. § 519 (1994).
151. Id.
152. See, e.g., Hoffa v. United States, 385 U.S. 293, 315 (1966) (Warren, C.J., dissenting) (agreeing with majority that "[t]here are some situations where the law could not adequately be enforced without" undercover investigative activity); Lewis v. United States, 385 U.S. 206, 208 (1966) (noting "the necessity for some undercover police activity"); Sorrells v. United States, 287 U.S. 435, 441 (1932) (holding that undercover work is "frequently essential to the enforcement of the law").
153. 28 U.S.C. § 533 (1994) (emphasis added); see also 28 U.S.C. § 534(a)(1) (1994) ("The Attorney General shall . . . acquire . . . crime, and other records.").
154. 5 U.S.C. § 301 (1994) (emphasis added).
155. See Contacts Rule, supra note 10, § 77.1; Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,915 (1994) (to be codified at 28 C.F.R. § 77) (relying on the foregoing statutory authorities); infra notes 174-241 and accompanying text.
156. It is only the preemptive assertion of such regulations that is new; the Attorney General has of course long employed internal, written conduct rules governing federal prosecutors. See U.S. Dep't of Justice, The United States Attorney's Manual (1995) [hereinafter USAM].
157. Lawrence H. Tribe, American Constitutional Law 479 (2d ed. 1988); see Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
158. William B. Lockhart et al., Constitutional Law 287 (7th ed. 1991); see also Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1008 (1995) ("The proper scope of federal authority [with regard to the States] has been in dispute since the Framing . . . .").
159. William B. Lockhart et al., Constitutional Law 287 (7th ed. 1991); see also Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1008 (1995) ("The proper scope of federal authority [with regard to the States] has been in dispute since the Framing . . . .").
160. See S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. Rev. 685, 687-99 (1991).
161. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824); accord Tribe, supra note 140, at 500.
162. U.S. Const., art. VI. The supremacy of federal laws over state law was perhaps the premier distinction of the Constitution, as compared to the prior Articles of Confederation which left the federal union ineffective as against the states. See Jesse H. Choper, The Scope of National Power Vis-B-vis the States: The Dispensability of Judicial Review, 86 Yale L.J. 1552, 1555-56 (1977).
163. Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190, 203 (1983); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
164. Rath Packing, 430 U.S. at 525-26. In fact, the only difficult preemption cases arise where federal preemption is asserted by implication. Lockhart, supra note 141, at 287; see Tribe, supra note 140, at 501 (describing express preemption cases as relatively "simple"). Indeed, one leading scholar has defined the term "federal preemption" as referring only to those instances where "federal law overrides state laws . . . even though Congress has not expressed its intent with clarity." Ronald D. Rotunda, Sheathing the Sword of Federal Preemption, 5 Const. Commentary 311, 311 (1988).
165. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
166. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
167. Were the hypothecated full ethical code promulgated by the Attorney General, we may assume that she would expressly state an intention that it preempt local authorities (as she has done with regard to the discrete contacts regulation). But such an express statement by a Department Head, as opposed to one by Congress, is not sufficient in itself to establish preemption. The difference is the basic constitutional distinction between Legislative and Executive federal powers. A regulation must be valid federal law to preempt, and a regulator's bare pronouncement is not law unless it falls within authority granted by Congress. Even if a regulator's express intention is to preempt, the question remains whether such a result is within the regulator's statutory grant of power from Congress. If it is not, then even the most vigorous express regulatory statement of preemption is impotent.
168. Hillsborough County v. Automated Medical Labs., 471 U.S. 707, 713 (1985) (citing cases).
169. It is a fundamental preliminary requirement that federal regulations must first be validly promulgated under the relevant section of the Administrative Procedure Act, 5 U.S.C. § 553 (1994), before they can be given preemptive effect, because procedurally invalid regulations are of no effect. 5 U.S.C. § 552(a)(1) (1994); see United States v. Allegheny-Ludlum Steel, 406 U.S. 742, 758 (1972).
170. Fidelity Fed. Savings & Loan v. De la Cuesta, 458 U.S. 141, 153-54 (1982).
171. United States v. Shimer, 367 U.S. 374, 383 (1961). In Shimer, as in virtually all such cases of regulatory preemption, there was a broadly stated policy in a congressional statute, but an executive department head decided on a particularly strong interpretation of those policies that preempted state law, where the statute easily could have been read otherwise. Id. at 381-83. The same is so here, because the Attorney General seeks, and needs, no deference as to whether a general policy of effective federal law enforcement has been congressionally authorized. She has merely interpreted that general congressional purpose in a specifically preemptive manner. See Fred C. Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors, or, Who Should Regulate the Regulators?: Response To Little, 65 Fordham L. Rev. 429, 434-35 (1996) [hereinafter Zacharias, Who Can Best Regulate].
172. 177 U.S. 459 (1900).
173. Id. at 470.
174. Id. at 462-63.
175. Id. at 467 (emphasis added).
176. Id. at 467.
177. Id. at 467-68.
178. At the time, § 301 provided that department heads were authorized "to prescribe regulations, not inconsistent with law, for . . . the custody, use, and preservation of the [Department's] records, papers and property." 5 U.S.C. § 301 (1900). Not until 1958 did Congress amend the statute to provide that: "This section does not authorize withholding information from the public or limiting the availability of records to the public." 5 U.S.C. § 301 (1994). It is this amendment that generated the Supreme Court's decision in Chrysler Corp. v. Brown, 441 U.S. 281, 311-12 (1979). See infra note 253.
179. Boske, 177 U.S. at 469-70. The statute merely authorized regulations to govern the "custody, use, and preservation" of agency records. 5 U.S.C. § 301. It did not require their nondisclosure, particularly not to a valid state court request.
180. Boske, 177 U.S. at 468.
181. Id. at 468 (emphasis added). The Court cited no less authority than McCullough v. Maryland, 17 U.S. (4 Wheat) 316 (1819), for this statement.
182. Boske, 177 U.S. at 470 (emphasis added).
183. Indeed, Boske's language was simply a precursor for the now well-established "Chevron" deference due to executive agency interpretations of generalized statutory authority. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984); see Babbitt v. Sweet Home Chapter, 115 S. Ct. 2407, 2416 (1995); cf. Lain, supra note 66, at 28 (asserting that Chevron established a "new" deferential approach).
184. Rice v. Santa Fe Elevator, 331 U.S. 218, 230 (1947).
185. Id.
186. Id. (noting that such is the presumption "unless [preemption] was the clear and manifest purpose of Congress," in which case the Supremacy Clause plainly controls).
187. Tribe, supra note 140, at 499 n.13.
188. Free v. Bland, 369 U.S. 663, 666 (1962).
189. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581-83 (1979); accord Ridgway v. Ridgway, 454 U.S. 46 (1981) (holding that a state divorce decree was overridden by federal enactments); McCarty v. McCarty, 453 U.S. 210 (1981) (holding that federal law preempts state community property laws).
190. Ridgway, 454 U.S. at 53, 57.
191. Id. at 57; see also McCarty, 453 U.S. at 236-37 (Rehnquist, J., dissenting) (arguing that no preemption of state community property law could be inferred because no federal statute positively required it by direct enactment). The McCarty majority plainly rejected this dissenting view. Id. at 210.
192. Corinna Lain, a third-year law student, has rested an argument against the Attorney General's preemptive contacts regulation on a purported general "presumption against preemption." Lain, supra note 66, at 24, 25. Her argument, however, conflates the burden on a proponent to demonstrate that the regulation at issue is within the general "ends" of Congress's purpose, see Boske v. Comingore, 177 U.S. 459, 470 (1900), with the burden on a challenger to demonstrate inappropriate means once the ends of Congress are established. See Lain, supra note 66, at 25 & n.155. Undoubtedly the Supreme Court has demonstrated shifting analysis in specific preemption cases. See supra notes 140-43 and accompanying text. But no case states an unbending "presumption against preemption" in all cases. Rather, preemption is analyzed neutrally and contextually in an effort to honestly discern congressional purposes as well as subsequent regulatory compatibility with those purposes.
193. Professor Zacharias has noted that while "[f]orty-nine states adopted the [ABA's 1969] Model Code, with virtually no changes . . . [m]any jurisdictions rejected the [ABA's 1983] Model Rules" and "[o]thers adopted idiosyncratic mixtures." Zacharias, Federalizing Legal Ethics, supra note 65, at 339.
194. See id. at 340 & n.24 (citing Stephen B. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 Fordham Urb. L.J. 969, 969-72 (1992)); see also Rand v. Monsanto Co., 926 F.2d 596, app. at 601-03 (7th Cir. 1991) (demonstrating the dissimilarity between federal district courts in their adoption of various ethical codes and rules).
195. Memorandum from Daniel Coquillette, Committee on Rules of Practice and Procedure of the Judicial Conference of the U.S., Local Rules Regulating Attorney Conduct In the Federal Courts (July 5, 1995) at 1. Having been "directed to prepare a study of all federal local rules governing attorney conduct," Professor Coquillette identified "seven fundamentally different approaches" among the 94 districts. Id. "[W]ithin these 'groups' there are great variations." Id. Finally, the Federal Circuit courts have adopted non-uniform and "independent conduct codes" of their own. See Linda S. Mullenix, Multiforum Federal Practice: Ethics and Erie, 9 Geo. J. Legal Ethics 89, 101 (1995).
196. Memorandum from Daniel Coquillette, Committee on Rules of Practice and Procedure of the Judicial Conference of the U.S., Local Rules Regulating Attorney Conduct In the Federal Courts (July 5, 1995) at 1. Having been "directed to prepare a study of all federal local rules governing attorney conduct," Professor Coquillette identified "seven fundamentally different approaches" among the 94 districts. Id. "[W]ithin these 'groups' there are great variations." Id. Finally, the Federal Circuit courts have adopted non-uniform and "independent conduct codes" of their own. See Linda S. Mullenix, Multiforum Federal Practice: Ethics and Erie, 9 Geo. J. Legal Ethics 89, 101 (1995).
197. For example, Professor Coquillette identifies two federal districts in California whose local rules state that they will apply both the 1992 California Rules of Professional Conduct and one of the ABA models - but these sets of rules are quite divergent. Coquillette, supra note 177, at 4-5. He also identifies some federal districts that apply undefined "standards of attorney conduct not included in any rule." Id. at 15.
198. For example, an attorney practicing in the Northern District of California after Judge Patel's Lopez decision would not be irrational in refraining from speaking with any represented defendant, despite the defendant's initiation, voluntary and adamant waiver, and written judicial authorization, even though such communication would seem to be permitted by every jurisdiction in the nation. Indeed, even the qualifier, "would seem to be," in the preceding sentence reflects the uncertainty that pervades this area.
199. The Deputy Attorney General is a congressionally authorized position, and is second in command at the Department of Justice.
200. Jamie S. Gorelick, Within the Law, Wash. Post, May 21, 1995, at C7; accord Mullenix, supra note 177, at 131 ("[O]ne is reminded of the old adage that no person can serve two masters. Nor can one serve three or four . . . .").
201. Coquillette, supra note 177, at 19.
202. Jamie S. Gorelick & Geoffrey M. Klineberg, Justice Department Contacts with Represented Persons: A Sensible Solution, 78 Judicature 136, 143 (1994).
203. As Professor Coquillette has noted, "Certainly, the current disarray and the problematic application of rules governing attorney conduct in the federal courts should legitimately worry Congress." Coquillette, supra note 177, at 37.
204. See 5 U.S.C. § 553(b) (1994) (notice and comment provisions). This hypothetical question assumes that Congress has issued no specific authorization for the Attorney General to so preempt. Proposed § 502, see supra notes 1-5 and accompanying text, would, of course, change this current reality. For if Congress were to so expressly authorize the Attorney General to promulgate preemptive ethical rules, it is difficult to imagine such a law lacking substantive preemptive validity. See Zacharias, Federalizing Legal Ethics, supra note 65, at 337 & n.4. Even the recent revival of Commerce Clause limitations on congressional power in United States v. Lopez, 115 S. Ct. 1624 (1995), would not seem likely to apply to federal criminal law enforcement and its undoubtable effects on interstate commercial activity. See id. at 1630 (restricting congressional authority to activities that "substantially affect" interstate commerce). The case for validity seems even stronger in light of additional constitutional sources of authority for such legislation, such as Article I.
205. See, e.g., Leis v. Flynt, 439 U.S. 438, 442 (1979) ("Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States . . . ."). Yet the Court's choice of words here is significant. The phrase "has been left exclusively to" plainly indicates that such regulation could, if necessary, become the object of federal regulation. The passive voice obscures the actor: it is Congress that has left this authority to the states, by non-action. It could assume, or delegate, these functions if it so desired.
206. The Conference of State Chief Justices apparently has so concluded. See Res. XII, Conference of Chief Justices (Aug. 4, 1994); Comment on Proposed Regulation, Special Comm. of the Conference of Chief Justices (March 31, 1994) [hereinafter Committee Report]. This group is composed of the chief justices of the highest court in each state, and as Professor Coquillette notes it "represents the interests of the state courts." Coquillette, supra note 177, at 33. State courts could lose the power of promulgation as well as discipline over federal prosecutors, were a fully preemptive code of ethics to be accepted. But see infra notes 318-21 and accompanying text (suggesting that the Attorney General could preempt the promulgation function while leaving discipline with the states that desired to keep it). Thus, the state's interests in opposing federal preemption of their authority are neither neutral nor surprising.
207. The Conference of State Chief Justices apparently has so concluded. See Res. XII, Conference of Chief Justices (Aug. 4, 1994); Comment on Proposed Regulation, Special Comm. of the Conference of Chief Justices (March 31, 1994) [hereinafter Committee Report]. This group is composed of the chief justices of the highest court in each state, and as Professor Coquillette notes it "represents the interests of the state courts." Coquillette, supra note 177, at 33. State courts could lose the power of promulgation as well as discipline over federal prosecutors, were a fully preemptive code of ethics to be accepted. But see infra notes 318-21 and accompanying text (suggesting that the Attorney General could preempt the promulgation function while leaving discipline with the states that desired to keep it). Thus, the state's interests in opposing federal preemption of their authority are neither neutral nor surprising.
208. 5 U.S.C. §§ 551-559, 701-706 (1994).
209. See Chrysler Corp. v. Brown, 441 U.S. 281 (1979).
210. United States v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd on other grounds, 54 F.3d 825 (D.C. Cir. 1995).
211. Coquillette, supra note 177; Mullenix, supra note 177, at 105 ("[T]he federal practitioner undoubtedly may sleep troubled in the knowledge that he or she has absolutely no way of knowing in advance what conduct standards apply . . . .").
212. This is indeed the substance of the arguments made by Professor Samuel Dash, Justice Department Contacts with Represented Persons: A Sensible Solution, 78 Judicature 137 (1994), and by the Conference of Chief Justices in their March and August 1994 resolutions against the Attorney General's proposed contacts regulation. See Committee Report, supra note 187. Yet as Judge Weinstein has noted in the contextually distinct field of class action litigation: "[T]o the extent the enforcement of a state ethics rule might frustrate congressional ends, the Supremacy Clause would be a bar to any such enforcement." County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1407, 1415 (E.D.N.Y. 1989). The argument must be, therefore, that a preemptive ethical code promulgated by the Attorney General does not fall within existing "congressional ends."
213. Committee Report, supra note 187 at 23; accord Coquillette, supra note 177, at 29 ("The Conference of Chief Judges agreed that for a substantive regulation to have force and effect of law the regulation had to be rooted in a specific grant of power.").
214. Committee Report, supra note 187 at 12, 13; see supra notes 165-73 and accompanying text (discussing scope of federal preemption).
215. Dash, supra note 192, at 138. The Chief Justices' Committee Report makes the identical assertion. See Committee Report, supra note 187, at 13.
216. Fidelity Fed. Sav. & Loan v. De la Cuesta, 458 U.S. 141, 154 (1982) (emphasis added).
217. Tribe, supra note 140, at 500, 505 n.23. The only inquiry left in such a case is whether Congress has legislated within its own constitutionally-delegated authority.
218. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
219. Hillsborough County v. Automated Medical Lab., 471 U.S. 707, 713 (1985).
220. Id. (citations omitted) (emphasis added).
221. Rath Packing, 430 U.S. at 525.
222. Thornburgh Memo, supra note 29; see United States v. Lopez, 765 F. Supp. 1433,1447 (N.D. Cal. 1991) (critiquing the merits of the Thornburgh Memorandum), vacated and remanded, 989 F.2d 1032 (9th Cir.), superseded, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995).
223. 28 U.S.C. § 533 (1994).
224. Indeed, it is Congress that proposed the Bill of Rights and enacted The Federal Rules of Criminal Procedure, both of which contain significant constraints on federal criminal investigation and prosecution. An implied legislative requirement of fairness, if it needs support, seems unmistakable.
225. See supra note 129 and accompanying text.
226. See supra note 13 and accompanying text. The Attorney General's contacts regulation fully acknowledged state authority in this regard. She expressly did not seek to exempt federal prosecutors from all state ethics control: "The Department also recognizes that with respect to most matters, Department attorneys are subject to the bar rules and disciplinary proceedings of the states in which they are licensed." Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,912 (1994) (to be codified at 28 C.F.R. § 77).
227. Thus proponents of the Attorney General's regulatory authority also go too far, but in the other direction, when they assert that the "presumption against preemption [in traditional areas of state control] has been clearly overcome by the regulation's express preemption provision." Gorelick & Kleinberg, supra note 183, at 145 (emphasis added). While Congress can overcome the anti-preemption presumption simply by express statement, a regulator lacks such absolute authority. Express statement by a regulator does not end the inquiry. The question remains whether the regulator's statutory powers are sufficient to imply a congressionally-approved preemption power in the field at issue.
228. The Burke Note cites Neagle, but only at the end of a footnote. Burke, supra note 26, at 1649 n.93.
229. 135 U.S. 1 (1890).
230. I am at a loss to understand Professor Zacharias' suggestion that Neagle is inapposite because some statute specifically authorized the Attorney General to act. See Zacharias, Who Can Best Regulate, supra note 153, at 436 n.34. In rendering its preemption conclusion, the Court expressly noted that "[i]t is not supposed that any special act of Congress exists which authorizes" the executive action at issue. Neagle, 135 U.S. at 58 (emphasis added). Rather, that action was simply "derived from the general scope of his duties under the laws of the United States." Id. at 59 (emphasis added). That is precisely what the Attorney General argues now, regarding ethical conduct rules.
231. There is no general federal murder statute; it is an area left primarily and historically to the states. For example, it was not until President Kennedy was assassinated in 1963 that murder of the President was made a federal offense; thus local authorities handled that investigation. See Little, supra note 8, at 1072-73. Even where federal authority does exist to prosecute the murder of specified federal agents, see, e.g., 18 U.S.C. § 1114 (1994) (listing federal employees protected by the federal murder statute), prosecutorial jurisdiction over such murders is dual, not exclusively federal-that is, the state as well as federal authorities may prosecute. Little, supra note 8, at 1035-36.
232. Neagle, 135 U.S. at 76.
233. Id. at 47 ("[T]he press of California was filled with the conjectures of a probable attack by Terry on Justice Field."). Justice Field sat as the designated Circuit Justice for the Ninth Circuit; at that time, the Ninth Circuit had only one regular Circuit Judge. See 39 F. at v. The facts of Neagle are rich indeed. David Terry was a former California Supreme Court Justice (albeit of some ill repute; that Court was in its infancy in 1857), and thus a former colleague of Field's, who had sat on the California Supreme Court from 1857 to 1863 when President Lincoln elevated him to the Supreme Court in the middle of the Civil War. The underlying case over which Field later presided involved an apparently gold-digging younger woman who was contesting her paramour's estate and subsequently married her lawyer in that action. That lawyer was Terry. For a detailed account of "the Terry tragedy" and frontier justice in general, see Carl Brent Swisher, Stephen J. Field, Craftsman of the Law 321-361 (1930).
234. Neagle, 135 U.S. at 52.
235. Id. at 52-53.
236. Id. at 4-5. In this fascinating drama, an arrest warrant was also issued for Justice Field, but it was ultimately quashed upon orders from California's Governor and Attorney General. Id. at 4 & n.1.
237. Id. at 6-7; In re Neagle, 39 F. 833, 865 (C.C.N.D. Cal. 1889). The suggestion has been made that this proceeding was not entirely free from influence by Justice Field, who of course was a colleague of the district judge. See Swisher, supra note 213, at 356 (quoting the State's lawyer, and future U.S. Senator from California, Stephen White, who charged that "[t]he case is practically being tried by Field, though he is behind the scenes.").
238. Neagle, 135 U.S. at 54.
239. Neagle, 39 F. at 842 (quoting Rev. Stat. § 753).
240. Neagle, 135 U.S. at 58-68.
241. Id. at 58, 63. Another question of implied statutory authority was whether Justice Field was on "official" business, when no statute required him to sit more than once every two years in any district within his Circuit. Id. at 55. The Supreme Court had no difficulty in finding Justice Field's more frequent trips to his home state of California to be "official," however, because the number of districts in the Ninth Circuit "required" more frequent visits. Id. The necessity of traveling by railroad to visit far-flung districts, while not expressed in the statute, was "as much an obligation imposed by the law as if it had said [so] in words." Id. at 56. This too demonstrates the Court's readiness to give broad contextual meaning to statutes when necessity so demands.
242. Id. at 58-59.
243. Id. at 59.
244. See id. at 76 (holding that Neagle "is not liable to answer in the courts of California" for his shooting of Terry). Justice Lamar, joined by Chief Justice Fuller, dissented at length. Id. at 76-99. Justice Field reportedly "took no part in [the] decision." Id. at 99.
245. Ex Parte Siebold, 100 U.S. 371 (1880).
246. Id. at 395 (1880) (emphasis added).
247. Neagle, 135 U.S. at 59. Prior to killing Terry, deputy marshal Neagle had learned that Terry was on Field's train and had telegraphed ahead to local authorities for assistance. The Court's opinion does not reveal precisely what then transpired, but found it "sufficient to say that this resulted in no available aid to assist in keeping the peace." Id. at 52.
248. Id. at 61-62 (quoting Tennessee v. Davis, 100 U.S. 257, 262-63 (1879)).
249. Id. at 64 (emphasis added).
250. Id. at 64-68.
251. Id. at 67. The Court noted its view that in two earlier cases, the Attorney General had been found to have implied authority to take specific actions not expressly authorized by any congressional act. Id. at 66-67 (citing United States v. San Jacinto Tin Co., 125 U.S. 273, 279-80 (1887) and United States v. Hughes, 52 U.S. (11 How.) 552 (1850)). Upon reading these decisions, however, it is plain that neither case necessarily required the broad holding and statements that Neagle expressed.
252. See, e.g., Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,917 (1994) (to be codified at 28 C.F.R. § 77) (the Attorney General notes the intergovernmental immunity doctrine, without citing Neagle); Tribe, supra note 140, at 511-514 & n. 12 (citing Neagle as the case in which the intergovernmental immunity doctrine emerged).
253. 135 U.S. at 62.
254. See supra notes 74, 77-95 and accompanying text (discussing Lopez). See generally Kolibash v. Committee on Legal Ethics, 872 F.2d 571, 575 (4th Cir. 1989) (ordering removal of state disciplinary proceeding against federal prosecutor because "state professional disciplinary proceedings could be used to interfere with the duties of federal officials.") So too does an "ethical" rule that unevenly sets a procedural hurdle (prior judicial approval) for federal prosecutors issuing subpoenas to other lawyers that is not placed before private practitioners; such unequal treatment could at least give a rational Attorney General pause. See United States v. Klubock, 832 F.2d 664, 675 (1st Cir. 1987) (Breyer, J., dissenting from equally divided en banc affirmance) (arguing that Rule 3.8(f) equivalent violates Supremacy Clause and "federal prosecutors . . . need not [follow it].").
255. U.S. Const, art. II, § 3; see supra notes 129 & 205 and accompanying text.
256. See Neagle, 135 U.S. at 63-65. The Court had briefly addressed other statutory grants. See In re Neagle, 39 F. 833, 858-59 (C.C.N.D. Cal. 1889). As an alternative ground for its decision, the Neagle Court also noted a statute that described the power of federal marshals. Neagle, 135 U.S. at 68. However, this was plainly a secondary basis for the Court's decision, coming as it did only after the far broader discussion of the Executive's implied powers. Moreover, it could not suffice to resolve the issue of the Attorney General's authority to direct any marshal to protect federal judges outside of court. Thus the federal marshal statute was an incomplete ground for the decision in Neagle, as well as an alternative one.
257. 28 U.S.C. §§ 515(a), 516, 519, 533, 547 (1994).
258. Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,915 (1994) (to be codified at 28 C.F.R. § 77).
259. To take a more extreme hypothetical, if a State enacted a law that all federal undercover narcotics agents should be arrested and disciplined for common law fraud, the Attorney General's authorization of such investigative techniques would be held preemptive. See, e.g., Connecticut v. Marra, 528 F. Supp. 381, 384-85 (D. Conn. 1981) (dismissing prosecution of State bribery charges against an FBI informant); accord Baucom v. Martin, 677 F.2d 1346 (11th Cir. 1982) (finding that any conviction of an FBI agent for his participation in a bribery of a state prosecutor would contravene the Supremacy Clause).
260. See USAM, supra note 139, at § 9-27.001.
261. Neagle is not an isolated case. See, for example Ponzi v. Fessenden, 258 U.S. 254 (1922), in which the Attorney General was held to have the power to transfer certain prisoners. The Court noted that "there is no express authority authorizing the transfer . . . . Yet we have no doubt that it exists." Id. at 261-62. That certainty was based on the Attorney General's position as "head of the Department of Justice" and the same general statutory authorities discussed above. Id. at 262. The point is that the Attorney General is an important federal figure, possessed by that very stature of many specific powers authorized in furtherance of Congress' general statutory purpose - effective enforcement of federal law.
262. 5 U.S.C. § 301 (1994) reads in relevant part: "The head of an Executive department . . . may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property."
263. Id.
264. See supra notes 154-64 and accompanying text.
265. Compare 5 U.S.C. § 301 with Boske v. Comingore, 177 U.S. 459, 467 (1900) (describing powers delegated to the heads of executive departments).
266. See Zacharias, Who Can Best Regulate, supra note 153, at 440 (stating that the Attorney General's conclusion "feels wrong").
267. Leis v. Flynt, 439 U.S. 438, 442 (1979) (per curiam), quoted in the Committee Report, supra note 187, at 12. As a per curiam opinion and summary disposition, Flynt is somewhat less authoritative than a signed and argued Opinion of the Court. Edelman v. Jordan, 415 U.S. 651, 671 (1974); Robert L. Stern, Supreme Court Practice § 4.28 (7th ed. 1993). This seems particularly true in light of the odd fact that although four Justices voted to hear argument in Flynt, see 439 U.S. at 445 (White, J., dissenting); id. at 457 (Stevens, J. dissenting with Marshall and Brennan, JJ.), the case was apparently neither briefed nor argued after certiorari was granted. Id. at 438.
268. Cf. Coquillette, supra note 177 at 31 (assuming the preemptive effect of federal regulation as well as federal judicial rulemaking in this area); Zacharias, Federalizing Legal Ethics, supra note 65, at 337 n.4 (suggesting that Congress could lawfully enact a preemptive federal ethical code); see also Flynt, 439 U.S. at 442 (suggesting that the authority is merely left to the States, not reserved to them). Additionally, the Flynt Court apparently felt it necessary to note that the lawyer's claim at issue was "not a right granted . . . by [federal] statute," suggesting that if it had been, the state would have been ousted of authority. Id.
269. Boske, 177 U.S. at 470.
270. Capital Cities Cable v. Crisp, 467 U.S. 691, 699 (1984) (citations omitted). The Attorney General cited Capital Cities when she issued her final contacts regulation. Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,915 (1994) (to be codified at 28 C.F.R. § 77). The Capital Cities language came from Justice Harlan's opinion in United States v. Shimer, 367 U.S. 374, 383 (1961), in which the statement was not followed by citation. But it is interesting to consider whether the grandson (the 1961 Justice Harlan) could really have been unaware of his namesake's (the first Justice Harlan) echoingly similar words in Boske.
271. Again, any assertion to the opposite effect - that Attorney General preemption requires express approval by Congress, is erroneous in light of these cases. See, e.g., Dash, supra note 192, at 138 (asserting that preemption requires congressional approval); see supra notes 146, 194-98 and accompanying text.
272. 5 U.S.C. § 301 (1994).
273. Without noting Boske, a student piece argues that § 301 cannot provide the Attorney General with preemptive authority here because a later Supreme Court decision, Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979), limits § 301 to procedural "housekeeping" regulations. Lain, supra note 66, at 22-23. Lain notes that "one can argue that Chrysler was improperly decided" but "it nevertheless remains the law." Id. at 23 n.112. Professor Zacharias apparently accepts this reading of Chrysler. Zacharias, Who Can Best Regulate, supra note 153, at 430 n.4. Chrysler, however, ought not be read so broadly. First, it neither cited, nor purported to overrule, the Boske standard for regulatory deference in the preemption field. Second, Chrysler was undoubtedly limited to a very specific 1958 amendment to § 301 that was designed to prohibit nondisclosure regulations. Chrysler, 441 U.S. at 310. In the face of a specific statute forbidding disclosure of certain trade secret documents, the Court concluded that § 301 was insufficient to authorize certain disclosure regulations that contradicted the statute. Id. at 309-312. Chrysler did not address, and did not involve, regulations issued under the unamended portion of § 301, in force since 1790, permitting department heads to regulate "their business" and "the conduct of [their] employees." Nor is there, in the ethics context, any specifically opposed federal statute - such as 18 U.S.C. § 1905 in Chevron - to limit the scope of § 301's authority over conduct. Third, the "housekeeping statute" language and the procedural versus substantive rules distinction mentioned in Chambers v. NASCO, Inc., 501 U.S. 32, 51-55 (1991), came directly from House and Senate reports that were limited to the 1958 nondisclosure amendment. That language ought not to be read more broadly than its origin; similarly, the Court's decision in Chrysler ought not be read far beyond its specific context. Finally, of course, the Attorney General relies on far more statutory authority for the present regulation than § 301 alone. Nothing in Chrysler requires, or even hints, that the Attorney General has no authority at all under § 301 to regulate the ethical conduct of her prosecutors. Whether such regulations have preemptive force in a particular context is unaddressed, and not controlled, by Chrysler.
274. Congress has held hearings on federal prosecutorial ethics. See, e.g., Exercise of Federal Prosecutorial Authority in a Changing Legal Environment, H.R. Rep. No. 986, 101st Cong., 2d Sess. (1990) (discussing Congress' concerns regarding federal prosecutorial ethics). This indicates that Congress does view the topic as one of federal concern.
275. 765 F. Supp. 1433 (N.D. Cal 1991), vacated and remanded, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995).
276. 801 F. Supp. 478 (D.N.M. 1992).
277. 846 F.2d 854 (2d Cir.), modified, 858 F.2d 834 (2d Cir. 1988), aff'd, 902 F.2d 1062 (2d Cir.), cert. denied, 498 U.S. 871 (1990).
278. See, e.g., Utah State Bar Op. No. 95-05 (1996) reprinted in ABA/BNA Lawyers' Manual on Professional Conduct 55-56 (1996) (proposing to find that the Attorney General's regulation has no effect in Utah, and moreover that only Utah case law can be considered in applying Rule 4.2's "authorized by law" exception).
279. The Attorney General noted, when issuing the final contacts rule, 28 C.F.R. § 77 (1995), that the Supreme Court has previously endorsed the preemptive regulatory authority of the Attorney General under § 301, and its predecessors, in Georgia v. United States, 411 U.S. 526, 536 (1973) and Touhy v. Ragen, 340 U.S. 462 (1951). Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,915 (1994) (to be codified at 28 C.F.R. § 77). Significantly, Touhy relied dispositively on Boske. Touhy, 340 U.S. at 469-70. Chrysler is not in conflict; that opinion simply concludes that regulations promulgated pursuant to & 301 cannot override a conflicting federal statutory command. See Chrysler, 441 U.S. at 308-12. This seems irrelevant to the federal-state preemption debate on ethics here. See supra note 253 and accompanying text (discussing Chrysler).
280. There is, of course, authority for the proposition that congressional silence in the face of other activity can indicate acceptance. See Evans v. United States, 504 U.S. 255, 269 (1992); Ford Motor Credit v. Milhollin, 444 U.S. 555, 565-68 (1980). In addition, the introduction of § 502 suggests that if Congress does act, it will act to endorse the Attorney General's actions in this area. On the other hand, the fact that a Senator has felt it necessary to introduce § 502 could suggest an inference that Congress believes the Attorney General needs a more express grant of authority; and the fact that § 502 has not been enacted could be read to indicate congressional disapproval. That such directly contrary inferences can be drawn from the same meager set of legislative facts is why reading such legislative records is often no better than reading tea leaves. See supra note 5 and accompanying text; see also Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) (stating that the courts reliance on legislative history "is not merely a waste of research time and ink; it is a false and disruptive lesson in the law").
281. See infra part III.
282. Pub. L. No. 96-132, § 3(a), 93 Stat. 1040, 1044 (1979), reprinted in 1979 U.S.C.C.A.N. 2003.
283. United States v. Ferrara, 847 F. Supp. 964, 969-70 (D.D.C. 1993); Committee Report, supra note 187, at 14-16.
284. Nothing in the legislative history explains the insertion of this language, for the first time, in 1979. In fact, the Senate Report did contain a section entitled "Professional Responsibility," which discussed the level of resources provided for the Department's Office of Professional Responsibility, but this discussion did not mention the state bar licensing requirement. S. Rep. No. 173, 96th Cong., 1st Sess., at 8, reprinted in 1979 U.S.C.C.A.N. 2003, 2010. This suggests there was no congressionally perceived link between issues of professional responsibility and the licensing requirement of § 3(a). While it is always possible to miss something when reviewing 1112 pages, the thick volume of one week's hearings on the 1979 Department of Justice appropriations bill also yielded nothing to the author's review regarding § 3(a).
285. See Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,916 (1994) (to be codified at 28 C.F.R. § 77).
286. See, e.g., Cal. Bus. & Prof. Code § 6125 (West 1996) ("No person shall practice law in California unless the person is an active member of the state bar.").
287. Zacharias, Federalizing Legal Ethics, supra note 65, at 341.
288. Coquillette, supra note 177, at 3-4 (reporting seven "variant models" within the district courts); id. at 8 (reporting that 11 districts have "no local rule at all" on the topic). See, e.g., Whitehouse v. United States Dist. Court, 53 F.3d 1349, 1353 (1st Cir. 1995) (noting that the District of Rhode Island simply "issued an order incorporating the [state] Rules of Professional Conduct."); IBM Corp. v. Levin, 579 F.2d 271, 279 n.2 (3d Cir. 1978) (noting that the district court's local rule stated that "the conduct of practitioners before it was to be governed by the disciplinary rules of the Code as amended by the Supreme Court of New Jersey").
289. See, e.g., Whitehouse, 53 F.3d at 1355 (holding that "local rules" are valid unless they conflict with an act of Congress or the Federal Rules of Criminal Procedure, they are unconstitutional, or they are not within the district court's regulatory power); Dash, supra note 192, at 138 (discussing the limitations of the preemptive power of the Attorney General under the Supremacy Clause); Mashburn, supra note 11, at 520-21 (arguing that a federal court should preempt state rules of professional responsibility only to accomplish important federal objectives).
290. Accord Coquillette, supra note 177, at 31 ("[W]ith proper authority, through an Act of Congress, federal agencies could pass valid regulations which supersede local rules governing attorney conduct.").
291. 28 U.S.C. § 2071(a) (1994) (emphasis added).
292. Id.
293. 28 U.S.C. § 2071(b). Then First Circuit Judge Stephen Breyer found this procedural requirement violated by a local district court rule that merely incorporated a state rule 3.8(f) equivalent. United States v. Klubock, 832 F.2d 664, 674-75 (1st Cir. 1987) (Breyer, J., dissenting).
294. Amended versions of both these rules became effective on December 1, 1995. The Third Circuit has noted that § 2071 and Rule 83 "probably must be read in pari materia" Rodgers v. United States Steel Corp., 508 F.2d 152, 163 (3d Cir. 1975), cert. denied 423 U.S. 832 (1975).
295. See generally Jack B. Weinstein, Reform of Court Rule-making Procedures
296. 28 U.S.C § 2071.
297. 5 U.S.C. § 301 (1994).
298. This is to be contrasted with a court's "inherent" authority to regulate the conduct of "attorneys who appear before it." Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991). However, Congress may limit this authority "by statute and rule." Id. at 47.
299. I have found no authority even of a general nature which attempts to answer this specific inquiry.
300. See, e.g., Rodgers v. United States Steel Corp., 508 F.2d 152, 163 (3d Cir. 1975) (holding that "[t]here is no general grant of legislative authority to regulate the practice of law" in § 2071 or Rule 83, and striking down a local rule avowedly intended to prevent "barratry"), cert. denied, 432 U.S. 832 (1975). In Chambers, the Supreme Court held in a 5-4 decision, that the court had the "inherent" authority to sanction conduct occurring "beyond the court's confines." Chambers, 501 U.S. at 44. But see id. at 60 (Scalia, J., dissenting) (disagreeing with the conclusion that the court's inherent authority reaches beyond the court's confines). The majority's "beyond-court" holding seemed to be limited by reference to "disobedience to the orders of the Judiciary." Id. at 44.
301. Rodgers, 508 F.2d at 163.
302. For example, wholesale federal court adoption of state ethical rules without limitation theoretically allows federal courts to discipline for advertising, fee, and solicitation violations, even if the matter never comes to federal court. This seems a farfetched effort under 28 U.S.C § 2071 (1994).
303. 5 U.S.C. § 301 (1994).
304. 28 U.S.C. § 2071.
305. This is the theory by which the Third Circuit struck down a district court's local attorney subpoena rule in Baylson v. Disciplinary Bd., 975 F.2d 102, 112 (3d Cir. 1992) (finding that the judicial approval requirement of the local rule conflicted with the grand jury subpoena provisions of the Federal Rules of Criminal Procedure). But see Whitehouse v. United States Dist. Court, 53 F.3d 1349 (1st Cir. 1995) (reaching a contrary result).
306. See Chrysler Corp. v. Brown, 441 U.S. 281, 295-296 (1979).
307. Perhaps the murkiness of the issue is another good reason for the Attorney General, as well as federal district courts, to cautiously restrain any rulemaking forays into the area of prosecutorial ethics. See infra notes 342-59 and accompanying text.
308. Consider, for example, "local" rules purporting to exempt court employees from Title VII regulations, labor regulations, OSHA safety regulations, and the like. Surely the nationally promulgated and applicable C.F.R.s would override local court rules attempting such exemption.
309. See Baylson, 975 F.2d at 107, 110-11; see also United States v. Klubock, 832 F.2d 649, 659 (1st Cir. 1987) (Campbell, J., dissenting) (noting that the advisory committee comment to Fed. R. Crim. P. 57 appeared to limit local court rules to "matters of detail"); Sara S. Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum. L. Rev. 1433, 1474 (1984) (arguing that "specialized rather than a general federal common law is essential to the . . . separation of power required by the Constitution").
310. See, e.g., Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718, 724 (6th Cir. 1993) (holding that federal courts have inherent authority to discipline attorneys who come before them).
311. E.g., id. (citing an unpublished district court decision, Stone v. City of Philadelphia, 1986 WL 13483 at *4 (D. Pa. Nov. 25, 1986), and a Third Circuit opinion, IBM Corp. v. Levin, 579 F.2d 271, 279 n.2 (3d Cir. 1978), neither of which address inherent authority). It also should at least be noted that the head of the Executive Branch presumably has some "inherent authority." Might this not extend to the "inherent authority" to regulate federal law enforcers, and to protect them from unfair sanction by hostile state authorities?
312. E.g., United States v. Furey, 514 F.2d 1098, 1103 (2d Cir. 1975) (asserting that "federal courts . . . possess the inherent power" to dismiss a case for delay even in the absence of a constitutional violation). See generally supra notes 32-35 and accompanying text (discussing supervisory authority). Contra United States v. Hasting, 461 U.S. 499, 505 (1982) (holding that a court, in using its supervisory power to discipline prosecutors, may not ignore the harmless-error analysis).
313. United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991); United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).
314. Cf. United States v. Dennis, 843 F.2d 652, 657 (2d Cir. 1988) (stating that "the sanction, absent some serious prejudice to the witness or taint to the trial, should be disciplinary action," not court sanctions).
315. Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991); cf. Whitehouse v. United States Dist. Court, 53 F.3d 1349, 1356 (1st Cir. 1995) (quoting authorities that invoke inherent regulatory power over attorneys who practice before them but without discussing the reach of such power to regulate conduct not before the court).
316. Barrera-Moreno, 951 F.2d at 1092; United States v. Lau Tung Tam, 714 F.2d 209, 210 (2d. Cir.), cert. denied, 464 U.S. 942 (1983) (holding that the Federal judicial supervision of prosecutorial activity outside court is extremely limited, if it exists at all).
317. Simpson, 927 F.2d at 1091 (reversing dismissal of indictment as a sanction for a government undercover investigation founded on prostitution, heroin use, and shoplifting). Judge Kozinski wrote that "sleazy investigatory tactics alone . . . do not provide . . . [an occasion] for the exercise of the supervisory power." Id. at 1090.
318. Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,917 (1994) (to be codified at 28 C.F.R. § 77). I hope that the foregoing analysis separates this Article from the "dismissive" critique that Professor Zacharias levels at the Attorney General's one-sentence treatment. Zacharias, Who Can Best Regulate, supra note 153, at 444.
319. See Chambers, 501 U.S. at 43.
320. See id. at 43 (discussing the scope of the courts power).
321. Id. at 57.
322. United States v. Williams, 504 U.S. 36, 45 (1992) (stating that supervisory power deals "with the court's power to control its own procedures"); id. at 47-48 (noting court's involvement with grand juries).
323. This, of course, is quite different from "perfectly" clear. There undoubtedly will be instances of conduct that can be argued to fall on either side of the line. The concept, however, is useful for the general run of cases. The grayness of the line at certain points counsels restraint on the part of courts as well as the Attorney General in attempting to regulate too aggressively. See supra notes 342-59 and accompanying text.
324. See Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,917 (1994) (to be codified at 28 C.F.R. § 77) (acknowledging "deference to the court's supervisory authority over the parties . . . before it").
325. California, for example, charges annual dues of $478, a relatively high figure that has generated substantial controversy within the bar's membership. See Lawyers Vote to Retain State Bar, L.A. Times, June 26, 1996, at B10.
326. Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69, 70-71 n.13, 79 (1995).
327. Professor Green asserts that this last regulatory body - private lawyer peer pressure - is "unlikely to affect prosecutors' conduct" and "unlikely to discourage prosecutorial excesses." Green, supra note 306, at 70-71 n.13. My empirical experiences as a federal prosecutor lead me to a different general conclusion (of course subject to specific exceptions): prosecutors are often - at times, too often - worried about peer criticism from lawyers both within and without their office. Certainly this is true of federal prosecutors who are actively looking for, or seriously expect to look for, outside employment. The effectiveness of this regulatory mechanism presumably would be enhanced were the Attorney General to actively adopt a non-career prosecutor preference, as is recommended below. See infra notes 357-59 and accompanying text. Like Professor Green (who also was once a federal prosecutor), however, I can offer no support other than experiential assertions as to the general effectiveness of this fifth regulatory mechanism.
328. Wilkins, supra note 6, at 873.
329. Green, supra note 306, at 72, 91.
330. Id. at 91 n.120, 93-95.
331. Wilkins, supra note 6, at 873. Professor Wilkins and Green expressly decline to provide specific suggestions to implement their visions, as beyond the objectives of their present efforts. Thus, after constructing his valuable theoretical model at length, Wilkins expressly notes that "designing such a system [concretely] is beyond the scope of this Article." Id. Similarly, having surveyed the inadequacies of the present federal prosecutor regulatory system, Professor Green concludes his effort by recommending in general terms that existing "authorities should strive to craft a disciplinary process that is . . . more effective than each of the component parts." Green, supra note 306, at 95.
332. Wilkins, supra note 6, at 810.
333. Id. at n.36.
334. See Gorelick, supra note 181, at C7 ("Unfortunately, there are 50 different sets of state ethics rules, subjecting department attorneys to conflicting requirements.").
335. See Green, supra note 306, at 83 n.78 (stating that "[n]one of the reported [federal disciplinary committee] decisions involve federal prosecutors"); see also id. at 88-89 n.111 (noting the dearth of reported disciplinary proceedings brought by state authorities against federal prosecutors, let alone finally resolved against them, and citing only three decisions, none of which involved actual imposition of discipline). Indeed, the single decision that reports a state disciplinary result is one that exonerates the federal prosecutor. United States v. Kelly, 550 F. Supp. 901, 903 (D. Mass. 1982). It is important to focus on local disciplinary actions where the Attorney General believes the prosecutor was undeserving of sanction. For surely the Attorney General ought not complain about ethical discipline of a federal prosecutor whom the Attorney General believes intentionally violated a fair ethical rule.
336. See Green, supra note 306, at 70, 85 n.88.
337. Gorelick & Klineberg, supra note 183, at 142.
338. But see Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 Fordham L. Rev. 125, 127 (1991) (speculating that although a Federal code of ethics might initially allow enforcement to "remain[] local," disciplinary authority ultimately would also become federal "when it became clear both that some states were enforcing the Federal Code much more actively than others and that the state supreme courts often disagreed" in interpretation).
339. Enforcement under the new rule is not entirely preemptive, however. If the Attorney General concludes that a violation of her regulation has been "willful," the matter is then to be sent to state authorities for discipline (presumably in addition to whatever discipline the Attorney General imposes). Contacts Rule, supra note 10, § 77.12. This is probably because the Attorney General's discipline of her employees tops out at terminating their employment, and willful violators of any important ethical rule may well be deserving of more serious, licensing, discipline. Of course, the Attorney General has retained the authority to determine whether a violation is "willful," rather than allow state authorities to inquire. Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,927 (1994) (to be codified at 28 C.F.R. § 77). Nevertheless, her sensible decision to leave some discipline to state authorities implicitly acknowledges that the enforcement function need not be entirely preempted, and is separable from the determination of substantive rule content.
340. Conciliation is now at least partially underway; in the Spring and Summer of 1996, Department of Justice officials and a members of the State Chief Justices' Conference met and discussed alternatives to the preemptive contacts regulation. Interviews with Jamie Gorelick, Deputy Attorney General, and Michael Zimmerman, Utah Chief Justice (Feb. and June, 1996).
341. See 59 Fed. Reg. at 39,918 (noting at least one critical comment of "the fox maintain[ing] . . . guard over the hen-house").
342. Dept. of Just., Gen. Admin. Estimates for Fiscal Year 1997, at 22.
343. According to the 1993 OPR Annual Report, 685 cases were opened by OPR regarding allegations against DOJ employees in 1993. 1993 Ann. Rep. of the Off. of Prof. Resp., pt. III, § A, at 4. Of these, 164 matters involved allegations of misconduct or professional or unethical conduct. Id. at 7. If an overall ethical code were adopted for OPR to enforce, and if state and local federal authorities were ousted from enforcement jurisdiction, one can only speculate on the order of magnitude by which these numbers would increase. Interestingly, 100% of the attorney misconduct matters in which OPR found the allegations to be substantiated in 1993 resulted in discipline. See id. at 9.
344. See, Model Rules, supra note 23, Rule 1.13; Cal. R. of Prof. Conduct Rule 3-600 (West 1996).
345. Wilkins, supra note 6, at 818.
346. Id.
347. Id.
348. Compare Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 Wm. & Mary L. Rev. 1303, 1357-60 (1995) (noting that ethical codes mandate client-lawyer discussion on various topics).
349. See Wilkins, supra note 6, at 819-20.
350. That is, they pursue the interests of the investigatory agents with whom they are working (e.g., FBI or DEA), or the interests of the parties injured by the crime at issue.
351. For example, departmental ethics instructors often remind prosecutors that even the defendant is a member of "the public," and thus his or her rights are part of "the client" mix.
352. See Wilkins, supra note 6, at 818, 820 (providing matrices that fail to note government lawyers as possible actors and that omit "the public" as a possible client).
353. Id. at 820.
354. See Model Rules, supra note 23, Rule 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."). Some have suggested that this Rule, plainly written for civil practice, might nevertheless be applied to federal prosecutors presenting cases to grand juries, as an "end run" around the rule of United States v. Williams, 504 U.S. 36 (1992), that prosecutors need not introduce exculpatory evidence before the grand jury. See United States v. Colorado Supreme Court, 87 F.3d 1161, 1165-66 (10th Cir. 1996) (reinstating a suit for injunctive relief after finding that federal prosecutor plaintiffs sufficiently alleged "injury in fact" from a proposed application of Rule 3.3(d)).
355. Green, supra note 306, at 83-84, 88-91.
356. See Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,918 (1994) (to be codified at 28 C.F.R. § 77). This is, of course, not necessarily so, but if OPR did not increase its enforcement activity after state authorities were preempted, it is likely that Congress would step in.
357. This is particularly so because the traditional state "reluctan[ce] to proceed against federal prosecutors," Green, supra note 306, at 90, ought to be reduced if it is the Department itself which becomes the enforcer.
358. This likely systemic increase in discipline of federal prosecutors also ought to give opponents of the Attorney General's preemption some pause, as a normative matter. If the goal is increased discipline of federal prosecutors, perhaps a stronger federal ethical code and enforcement body is exactly what they should advocate.
359. See supra notes 299-01 and accompanying text.
360. See Judith Resnik, History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memory, and Limited Imagination, 98 W. Va. L. Rev. 171, 191 (1995).
361. Accord, Wilkins, supra note 6, at 829 & n.118 (noting that the bar spent a total of $74.4 million on the disciplinary system in 1988).
362. OPR's staff attorneys have almost tripled in four years, from six in 1992 to 18 today. Interview with John T. Ezell III, Deputy Chief of OPR (Sept. 1996). This demonstrates a healthy increase in the resources devoted to evaluating allegations of federal prosecutorial misconduct. Yet a mere 19 lawyers could hardly enforce a comprehensive federal ethics code that preempted all local authority across the nation.
363. See Schneyer, supra note 318, at 125 (hypothesizing creation of the "National Disciplinary Commission for Lawyers" sometime in the next 50 years).
364. Of course all this cost would be avoided if a decision were made simply to not enforce the new federal Attorney General code. Such an option seems to be politically unviable, and the present Attorney General is committed to a responsible enforcement system. See Communications with Represented Persons, 59 Fed. Reg. 39,910, 39,918 (1994) (to be codified at 28 C.F.R. § 77) (containing Attorney General statement that she takes prosecutorial misconduct "very seriously" and intends to "fully . . . enforce these rules and to issue . . . strong sanctions for any violation"). The author declines to presume a normative universe of unenforced prosecutorial ethical rules; this article presumes a responsible and concerned Attorney General.
365. See, e.g., United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993), appeals docketed, No. 95-10366 and No. 95-10394 (filed Aug. 18, 1995 and Sept. 1, 1995); United States v. Hammad, 846 F.2d 854, 857 (2d Cir. 1988) (declining to hold that DR 7-104(A)(1) is "limited in application to civil disputes or that it is coextensive with the sixth amendment"), modified, 858 F.2d 834 (2d Cir. 1988), aff'd, 902 F.2d 1062 (2d Cir.), cert. denied, 498 U.S. 871 (1990); In re Doe, 801 F. Supp. 478, 481 (D.N.M 1992) (holding that the case was improvidently removed pursuant to 28 U.S.C. § 1442 and, thus, remanded case to the New Mexico Disciplinary Board).
366. See, e.g., Gerald H. Goldstein, Government Lawyers: Above the Law? ,Wash. Post, May 2, 1995, at A19 (criticizing "the history of Justice Department self-regulation" and describing the new proposal as an "astounding proposal to . . . consolidate more power in the Justice Department").
367. The ABA, the National Bar Association, and the Federal Bar Association are but a few of the myriad associations that purport to represent national groups of practicing attorneys.
368. Indeed, Congress could immediately end Attorney General preemption in this area simply by unambiguously legislating a contrary intent. See supra notes 5 & 148 and accompanying text.
369. Challenges may also have lagged because the content of the Attorney General's regulation is reasonably evaluated as normatively inoffensive.
370. Others commentators have examined this issue more closely. See Lawrence J. Fox, Justice Department Rules Undermine Our Legal System, 21 Litig. News, Mar. 1996, at 6-7.
371. See Wilkins, supra note 6, at 846.
372. Historically, Attorneys General have not always acted in good faith. Thus, while this author's model would presume a good-faith Attorney General, see supra note 344, a legitimate danger of an exclusive Department of Justice system is the possibility that a bad faith actor might one day occupy the office. See infra note 355.
373. Gerald H. Goldstein, Government Lawyers: Above the Law?, 19 The Champion, July 1995, at 3; Harvey Berkman, GAO: DOJ Ethics Probers Lax, Nat'l L.J., Apr. 17, 1995, at A16.
374. Gerald H. Goldstein, Government Lawyers: Above the Law?, 19 The Champion, July 1995, at 3; Harvey Berkman, GAO: DOJ Ethics Probers Lax, Nat'l L.J., Apr. 17, 1995, at A16.
375. Green, supra note 306, at 85. This is not a criticism of the OPR attorneys, who in the author's experience are dedicated, hard-working, and dispassionate. It is simply a human characteristic of any internal institutional regulatory group.
376. See, e.g., United States v. Haldeman, 559 F.2d 31, 51-52 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977) (affirming conviction of former Attorney General John Mitchell).
377. A trend toward career federal prosecutors has already been noted. See Harvey Berkman, Jobs in the Law: Changing Picture, Nat'l L. J., Aug. 15, 1994, at A1.
378. A quick summary of the argument would be: Since Neagle it has been clear that states may not penalize federal agents for their authorized, official conduct. It is, however, unclear whether revocation of a state license based on a failure to fulfill state licensing requirements would be a prohibited "penalty," so long as the attorney's practice remains unaffected. Surely, for example, a state may remove from its rolls a federal prosecutor who refuses to pay state bar dues, or even just pays them late (if that same sanction is visited on all attorneys who pay late). So long as federal prosecutors are permitted to continue practicing in their courts, removal from the state rolls of actively licensed attorneys might be within the state's discretion as "licensor" where a federal prosecutor refuses to follow the state bar's rules.
379. For example, the Department of Justice presently relies on two such talented lawyers: Jack Keeny, the Acting Assistant Attorney General for the Criminal Division, who has been with the Department 45 years, since 1951, and David Margolis, Associate Deputy Attorney General, who is a youthful 56 and has been with the Department "only" since 1965.
380. This article is already too long to permit consideration of Professor Zacharias' provocative assertion that Congress might actually be "the most suitable [ethics] decision maker . . . ." Zacharias, Who Can Best Regulate, supra note 153, at 431. My initial reaction is that the present situation is far from being so bad as to require a "fix" involving such a dramatic institutional shift; and that numerous factors give one pause regarding Congress' institutional capacity to be reflective and nuanced regarding lawyers' ethical rules.
381. This is not an entirely unrealistic vision, c.f. Fred C. Zacharias, A. Nouveau Realist's View of Interjurisdictional Practice Rules, 36 S. Tex. L. Rev. 1037 (1995) (suggesting that a uniform interjurisdictional rule would not undermine any one jurisdiction's ability to regulate lawyers and insure that lawyers conduct themselves accordingly). The Department of Justice attorneys and representatives of the Conference of State Chief Justices are presently meeting to determine whether the present situation can be resolved by a mutually acceptable rule.
382. In fact, the contact regulation is arguably the product of just such diverse views. First promulgated under one Administration, it was refined and revised by "outsiders" brought in to staff the new Administration's Attorney General office. It also benefited from substantial comment periods spanning three Federal Register publications over two years. See supra notes 99-101 and accompanying text. Such independent and repeated redrafting is unlikely to be the norm. It should, instead, be affirmatively institutionalized.
383. There is no constitutional objection to such state enforcement, since it would not be mandatory but rather simply permitted, for those states interested in maintaining that function. See New York v. United States, 505 U.S. 144, 161, 168-69 (1992).
384. See Schneyer, supra note 318, at 127.
385. See Attorney General Encourages Bar Involvement, 9 Criminal Justice, Summer 1994, at 47.
386. See, e.g., Cal. R. Prof. Conduct Rule 2-100 cmt. (West 1996) ("applicable law" for the "authorized by law" exception "includes the authority of government prosecutors and investigators to conduct criminal investigations"). The author speaks from some experience, having served pro bono as an officer of the Bar Association of San Francisco's Ethics Committee while employed as an Assistant United States Attorney for the Northern District of California from 1989-1994.
387. See Wilkins, supra note 6, at 873; Green, supra note 306, at 95.
388. Wilkins, supra note 6, at 851, 873.
389. Berger v. United States, 295 U.S. 78, 88 (1935).