Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?

George Washington Law Review

Volumn 64, Issue 3, 1996, Pages 460-530

  Green, Bruce A ^a,b,c,d  

^a FORDHAM UNIVERSITY   (United States)

^b Stein Ctr Ethics Pub Interest Law

^c PRINCETON UNIVERSITY   (United States)

^d Och Spine at New York Presbyterian Hospitals

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[No Author keywords available]

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EID: 0030493766     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (453)

1. See, e.g., ABA COMM'N ON PROFESSIONALISM, ". . . . IN THE SPIRIT OF PUBLIC SERVICE:" A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM IV(D)(7) (1986); Bryant G. Garth, Rethinking the Legal Profession's Approach to Collective Self-Improvement: Competence and the Consumer Perspective, 1983 WIS. L. REV. 639, 641; Irwin D. Miller, Preventing Misconduct by Promoting the Ethics of Attorneys' Supervisory Duties, 70 NOTRE DAME L. REV. 259, 261 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 846 n.206 (1992) (citing COMMISSION ON EVALUATION OF DISCIPLINARY ENFORCEMENT, ABA REPORT TO THE HOUSE OF DELEGATES iii (1991) [hereinafter MCKAY REPORT]); see also Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 6-7 (1988) (asserting that professional independence entails freedom from outside regulation).
2. See, e.g., ABA COMM'N ON PROFESSIONALISM, ". . . . IN THE SPIRIT OF PUBLIC SERVICE:" A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM IV(D)(7) (1986); Bryant G. Garth, Rethinking the Legal Profession's Approach to Collective Self-Improvement: Competence and the Consumer Perspective, 1983 WIS. L. REV. 639, 641; Irwin D. Miller, Preventing Misconduct by Promoting the Ethics of Attorneys' Supervisory Duties, 70 NOTRE DAME L. REV. 259, 261 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 846 n.206 (1992) (citing COMMISSION ON EVALUATION OF DISCIPLINARY ENFORCEMENT, ABA REPORT TO THE HOUSE OF DELEGATES iii (1991) [hereinafter MCKAY REPORT]); see also Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 6-7 (1988) (asserting that professional independence entails freedom from outside regulation).
3. See, e.g., ABA COMM'N ON PROFESSIONALISM, ". . . . IN THE SPIRIT OF PUBLIC SERVICE:" A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM IV(D)(7) (1986); Bryant G. Garth, Rethinking the Legal Profession's Approach to Collective Self-Improvement: Competence and the Consumer Perspective, 1983 WIS. L. REV. 639, 641; Irwin D. Miller, Preventing Misconduct by Promoting the Ethics of Attorneys' Supervisory Duties, 70 NOTRE DAME L. REV. 259, 261 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 846 n.206 (1992) (citing COMMISSION ON EVALUATION OF DISCIPLINARY ENFORCEMENT, ABA REPORT TO THE HOUSE OF DELEGATES iii (1991) [hereinafter MCKAY REPORT]); see also Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 6-7 (1988) (asserting that professional independence entails freedom from outside regulation).
4. See, e.g., ABA COMM'N ON PROFESSIONALISM, ". . . . IN THE SPIRIT OF PUBLIC SERVICE:" A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM IV(D)(7) (1986); Bryant G. Garth, Rethinking the Legal Profession's Approach to Collective Self-Improvement: Competence and the Consumer Perspective, 1983 WIS. L. REV. 639, 641; Irwin D. Miller, Preventing Misconduct by Promoting the Ethics of Attorneys' Supervisory Duties, 70 NOTRE DAME L. REV. 259, 261 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 846 n.206 (1992) (citing COMMISSION ON EVALUATION OF DISCIPLINARY ENFORCEMENT, ABA REPORT TO THE HOUSE OF DELEGATES iii (1991) [hereinafter MCKAY REPORT]); see also Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 6-7 (1988) (asserting that professional independence entails freedom from outside regulation).
5. See, e.g., ABA COMM'N ON PROFESSIONALISM, ". . . . IN THE SPIRIT OF PUBLIC SERVICE:" A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM IV(D)(7) (1986); Bryant G. Garth, Rethinking the Legal Profession's Approach to Collective Self-Improvement: Competence and the Consumer Perspective, 1983 WIS. L. REV. 639, 641; Irwin D. Miller, Preventing Misconduct by Promoting the Ethics of Attorneys' Supervisory Duties, 70 NOTRE DAME L. REV. 259, 261 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 846 n.206 (1992) (citing COMMISSION ON EVALUATION OF DISCIPLINARY ENFORCEMENT, ABA REPORT TO THE HOUSE OF DELEGATES iii (1991) [hereinafter MCKAY REPORT]); see also Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 6-7 (1988) (asserting that professional independence entails freedom from outside regulation).
6. See, e.g., ABA COMM'N ON PROFESSIONALISM, ". . . . IN THE SPIRIT OF PUBLIC SERVICE:" A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM IV(D)(7) (1986); Bryant G. Garth, Rethinking the Legal Profession's Approach to Collective Self-Improvement: Competence and the Consumer Perspective, 1983 WIS. L. REV. 639, 641; Irwin D. Miller, Preventing Misconduct by Promoting the Ethics of Attorneys' Supervisory Duties, 70 NOTRE DAME L. REV. 259, 261 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 846 n.206 (1992) (citing COMMISSION ON EVALUATION OF DISCIPLINARY ENFORCEMENT, ABA REPORT TO THE HOUSE OF DELEGATES iii (1991) [hereinafter MCKAY REPORT]); see also Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 6-7 (1988) (asserting that professional independence entails freedom from outside regulation).
7. See, e.g., Ippolito v. Florida, 824 F. Supp. 1562, 1571 & n.23 (M.D. Fla. 1993) (preferring the term "'judicial regulation' which means regulation by the court with the assistance of lawyers," to "self-regulation [which connotes] regulation by lawyers with the assistance of the court" (citing John F. Harkness, Judicial Independence Is at the Heart of Today's Lawyer Regulation, FLA. B.J., May 1993, at 12)). Some would argue that it is equally misleading to use the term "profession," rather than "business," to describe law practice. I leave that debate to others. See, e.g., MARY A. GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994); John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021 (1982); Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773; Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
8. See, e.g., Ippolito v. Florida, 824 F. Supp. 1562, 1571 & n.23 (M.D. Fla. 1993) (preferring the term "'judicial regulation' which means regulation by the court with the assistance of lawyers," to "self-regulation [which connotes] regulation by lawyers with the assistance of the court" (citing John F. Harkness, Judicial Independence Is at the Heart of Today's Lawyer Regulation, FLA. B.J., May 1993, at 12)). Some would argue that it is equally misleading to use the term "profession," rather than "business," to describe law practice. I leave that debate to others. See, e.g., MARY A. GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994); John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021 (1982); Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773; Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
9. See, e.g., Ippolito v. Florida, 824 F. Supp. 1562, 1571 & n.23 (M.D. Fla. 1993) (preferring the term "'judicial regulation' which means regulation by the court with the assistance of lawyers," to "self-regulation [which connotes] regulation by lawyers with the assistance of the court" (citing John F. Harkness, Judicial Independence Is at the Heart of Today's Lawyer Regulation, FLA. B.J., May 1993, at 12)). Some would argue that it is equally misleading to use the term "profession," rather than "business," to describe law practice. I leave that debate to others. See, e.g., MARY A. GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994); John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021 (1982); Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773; Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
10. See, e.g., Ippolito v. Florida, 824 F. Supp. 1562, 1571 & n.23 (M.D. Fla. 1993) (preferring the term "'judicial regulation' which means regulation by the court with the assistance of lawyers," to "self-regulation [which connotes] regulation by lawyers with the assistance of the court" (citing John F. Harkness, Judicial Independence Is at the Heart of Today's Lawyer Regulation, FLA. B.J., May 1993, at 12)). Some would argue that it is equally misleading to use the term "profession," rather than "business," to describe law practice. I leave that debate to others. See, e.g., MARY A. GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994); John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021 (1982); Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773; Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
11. See, e.g., Ippolito v. Florida, 824 F. Supp. 1562, 1571 & n.23 (M.D. Fla. 1993) (preferring the term "'judicial regulation' which means regulation by the court with the assistance of lawyers," to "self-regulation [which connotes] regulation by lawyers with the assistance of the court" (citing John F. Harkness, Judicial Independence Is at the Heart of Today's Lawyer Regulation, FLA. B.J., May 1993, at 12)). Some would argue that it is equally misleading to use the term "profession," rather than "business," to describe law practice. I leave that debate to others. See, e.g., MARY A. GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994); John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021 (1982); Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773; Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
12. See, e.g., Ippolito v. Florida, 824 F. Supp. 1562, 1571 & n.23 (M.D. Fla. 1993) (preferring the term "'judicial regulation' which means regulation by the court with the assistance of lawyers," to "self-regulation [which connotes] regulation by lawyers with the assistance of the court" (citing John F. Harkness, Judicial Independence Is at the Heart of Today's Lawyer Regulation, FLA. B.J., May 1993, at 12)). Some would argue that it is equally misleading to use the term "profession," rather than "business," to describe law practice. I leave that debate to others. See, e.g., MARY A. GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994); John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021 (1982); Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773; Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
13. See, e.g., Ippolito v. Florida, 824 F. Supp. 1562, 1571 & n.23 (M.D. Fla. 1993) (preferring the term "'judicial regulation' which means regulation by the court with the assistance of lawyers," to "self-regulation [which connotes] regulation by lawyers with the assistance of the court" (citing John F. Harkness, Judicial Independence Is at the Heart of Today's Lawyer Regulation, FLA. B.J., May 1993, at 12)). Some would argue that it is equally misleading to use the term "profession," rather than "business," to describe law practice. I leave that debate to others. See, e.g., MARY A. GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994); John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021 (1982); Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773; Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995).
14. See generally Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389 (1992) (analyzing tension between organized bar and government agencies regarding the professional obligations of lawyers).
15. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 48-63 (1986) (describing the various versions of the model rules adopted by the ABA beginning in 1908); Stanley A. Samad, Evolution of a Code of Lawyering: The Model Rules of Professional Conduct, 56 OHIO ST. B. ASS'N REP. 1692 (1983) (discussing the evolution of the rules of professional conduct over the past 150 years); Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 LAW & SOC. INQUIRY 677 (1989) (providing a political account of the six-year process in which the ABA developed the Model Rules of Professional Conduct).
16. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 48-63 (1986) (describing the various versions of the model rules adopted by the ABA beginning in 1908); Stanley A. Samad, Evolution of a Code of Lawyering: The Model Rules of Professional Conduct, 56 OHIO ST. B. ASS'N REP. 1692 (1983) (discussing the evolution of the rules of professional conduct over the past 150 years); Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 LAW & SOC. INQUIRY 677 (1989) (providing a political account of the six-year process in which the ABA developed the Model Rules of Professional Conduct).
17. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 48-63 (1986) (describing the various versions of the model rules adopted by the ABA beginning in 1908); Stanley A. Samad, Evolution of a Code of Lawyering: The Model Rules of Professional Conduct, 56 OHIO ST. B. ASS'N REP. 1692 (1983) (discussing the evolution of the rules of professional conduct over the past 150 years); Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 LAW & SOC. INQUIRY 677 (1989) (providing a political account of the six-year process in which the ABA developed the Model Rules of Professional Conduct).
18. See, e.g., Marjorie E. Gross, The Long Process of Change: The 1990 Amendments to the New York Code of Professional Responsibility, 18 FORDHAM URB. L.J. 283 (1990) (describing the revisions to the New York Code of Professional Responsibility adopted in 1990); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1252 (1991) (noting state revisions of the ABA Model Rules of Professional Conduct); John F. Sutton, Jr., How Vulnerable Is the Code of Professional Responsibility?, 57 N.C. L. REV. 497, 501 n.11 (1979) (noting that the modified forms of the ABA Model Code of Professional Responsibility adopted by states vary greatly).
19. See, e.g., Marjorie E. Gross, The Long Process of Change: The 1990 Amendments to the New York Code of Professional Responsibility, 18 FORDHAM URB. L.J. 283 (1990) (describing the revisions to the New York Code of Professional Responsibility adopted in 1990); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1252 (1991) (noting state revisions of the ABA Model Rules of Professional Conduct); John F. Sutton, Jr., How Vulnerable Is the Code of Professional Responsibility?, 57 N.C. L. REV. 497, 501 n.11 (1979) (noting that the modified forms of the ABA Model Code of Professional Responsibility adopted by states vary greatly).
20. See, e.g., Marjorie E. Gross, The Long Process of Change: The 1990 Amendments to the New York Code of Professional Responsibility, 18 FORDHAM URB. L.J. 283 (1990) (describing the revisions to the New York Code of Professional Responsibility adopted in 1990); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1252 (1991) (noting state revisions of the ABA Model Rules of Professional Conduct); John F. Sutton, Jr., How Vulnerable Is the Code of Professional Responsibility?, 57 N.C. L. REV. 497, 501 n.11 (1979) (noting that the modified forms of the ABA Model Code of Professional Responsibility adopted by states vary greatly).
21. See, e.g., Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 98 (1st Cir. 1988) ("Absent promulgation by means of a statute or a court rule, ethical provisions of the ABA or other groups are not legally binding upon practitioners."); Niesig v. Team I, 558 N.E.2d 1030, 1032 (N.Y. 1990) ("we are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines"); Bruce A. Green, Doe v. Grievance Committee: On the Interpretation of Ethical Rules, 55 BROOK. L. REV. 485, 532-33 (1989) ("Neither the adoption of the Code by the ABA nor its endorsement by the Connecticut Bar Association made it enforceable against an attorney . . . .").
22. In the colonial era, responsibility for regulating lawyers was largely shared by colonial courts and legislatures. See Bruce A. Green, "Lethal Fiction": The Meaning of "Counsel" in the Sixth Amendment, 78 IOWA L. REV. 433, 465-68 (1993) (describing colonial and post-revolutionary licensing statutes). Since this nation's founding, however, the oversight of lawyers has been predominantly a judicial function. Today, it is understood that federal courts and most state courts supervise and discipline lawyers pursuant to inherent judicial authority "to admit, suspend and disbar lawyers who practice within the jurisdiction of the court." Green, supra note 6, at 530-31 nn.161-62 (citing authority); see Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. ARK. LITTLE ROCK L.J. 1, 3-6 (1989-90); see also Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 TEX. L. REV. 1805 (1995) (discussing the "broad, inherent authority in state and federal trial courts to exert a high degree of affirmative case management"); John Papachristos, Comment, Inherent Power Found, Rule 11 Lost: Taking a Shortcut to Impose Sanctions in Chambers v. NASCO, 59 BROOK. L. REV. 1225 (1993) (analyzing "the Supreme Court's arguments in favor of a broad inherent power"). Judicial regulation of lawyers' practice may also be premised on express grants of authority by legislative or state constitutional provisions. For example, federal district courts have authority to adopt local rules regulating lawyers pursuant to 28 U.S.C. § 2071 (1988), FED. R. CRIM. P. 57, and FED. R. CIV. P. 83. See Green, supra note 6, at 533 n.176. Pursuant to this authority, courts may establish standards of conduct for lawyers either through rulemaking or on an ad hoc basis in the course of adjudication. See, e.g., Theard v. United States, 354 U.S. 278, 281 (1957) (holding that disbarment by state court does not automatically result in disbarment by federal court); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 240 (2d Cir.) ("It is well established that a district court, pursuant to its rulemaking authority or on an ad hoc basis, may review a contingency fee agreement."), cert. denied, 484 U.S. 926 (1987); Jenkins v. McCoy, 882 F. Supp. 549, 553 (S.D.W. Va. 1995) (citing authority for the proposition that "courts have an inherent authority to supervise the collection of attorney fees and monitor contingent fee agreements"). For most of the past quarter century, the scope of the courts' inherent authority to regulate lawyers was considered to be extremely expansive. To be sure, rules of conduct are subject to the limits of constitutional provisions such as the First Amendment, see, e.g., Bates v. State Bar, 433 U.S. 350 (1977), as well as express statutory limits, see, e.g., Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992). Subject to that caveat, however, courts have assumed that they have authority to impose upon lawyers virtually any standard of conduct that might plausibly be justified based on any of a variety of interests, including the need to protect clients and prospective clients, the attorney-client relationship, the integrity of judicial proceedings, or the need to promote public respect for the courts or the legal profession. See, e.g., Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) ("This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. . . . The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers, . . . the traditional inherent and essential function of attorneys as officers of the courts, . . . and this court's exclusive original jurisdiction of attorney disciplinary proceedings."). The most serious recent challenge to the scope of courts' supervisory authority over lawyers has come from the United States Department of Justice, which promulgated a federal regulation in August 1994 that is intended to govern prosecutors' communications with represented individuals and, in so doing, to preempt inconsistent state and federal rules of professional conduct. See Communications with Represented Persons, 28 C.F.R. pt. 77 (1995); infra part I.
23. In the colonial era, responsibility for regulating lawyers was largely shared by colonial courts and legislatures. See Bruce A. Green, "Lethal Fiction": The Meaning of "Counsel" in the Sixth Amendment, 78 IOWA L. REV. 433, 465-68 (1993) (describing colonial and post-revolutionary licensing statutes). Since this nation's founding, however, the oversight of lawyers has been predominantly a judicial function. Today, it is understood that federal courts and most state courts supervise and discipline lawyers pursuant to inherent judicial authority "to admit, suspend and disbar lawyers who practice within the jurisdiction of the court." Green, supra note 6, at 530-31 nn.161-62 (citing authority); see Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. ARK. LITTLE ROCK L.J. 1, 3-6 (1989-90); see also Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 TEX. L. REV. 1805 (1995) (discussing the "broad, inherent authority in state and federal trial courts to exert a high degree of affirmative case management"); John Papachristos, Comment, Inherent Power Found, Rule 11 Lost: Taking a Shortcut to Impose Sanctions in Chambers v. NASCO, 59 BROOK. L. REV. 1225 (1993) (analyzing "the Supreme Court's arguments in favor of a broad inherent power"). Judicial regulation of lawyers' practice may also be premised on express grants of authority by legislative or state constitutional provisions. For example, federal district courts have authority to adopt local rules regulating lawyers pursuant to 28 U.S.C. § 2071 (1988), FED. R. CRIM. P. 57, and FED. R. CIV. P. 83. See Green, supra note 6, at 533 n.176. Pursuant to this authority, courts may establish standards of conduct for lawyers either through rulemaking or on an ad hoc basis in the course of adjudication. See, e.g., Theard v. United States, 354 U.S. 278, 281 (1957) (holding that disbarment by state court does not automatically result in disbarment by federal court); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 240 (2d Cir.) ("It is well established that a district court, pursuant to its rulemaking authority or on an ad hoc basis, may review a contingency fee agreement."), cert. denied, 484 U.S. 926 (1987); Jenkins v. McCoy, 882 F. Supp. 549, 553 (S.D.W. Va. 1995) (citing authority for the proposition that "courts have an inherent authority to supervise the collection of attorney fees and monitor contingent fee agreements"). For most of the past quarter century, the scope of the courts' inherent authority to regulate lawyers was considered to be extremely expansive. To be sure, rules of conduct are subject to the limits of constitutional provisions such as the First Amendment, see, e.g., Bates v. State Bar, 433 U.S. 350 (1977), as well as express statutory limits, see, e.g., Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992). Subject to that caveat, however, courts have assumed that they have authority to impose upon lawyers virtually any standard of conduct that might plausibly be justified based on any of a variety of interests, including the need to protect clients and prospective clients, the attorney-client relationship, the integrity of judicial proceedings, or the need to promote public respect for the courts or the legal profession. See, e.g., Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) ("This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. . . . The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers, . . . the traditional inherent and essential function of attorneys as officers of the courts, . . . and this court's exclusive original jurisdiction of attorney disciplinary proceedings."). The most serious recent challenge to the scope of courts' supervisory authority over lawyers has come from the United States Department of Justice, which promulgated a federal regulation in August 1994 that is intended to govern prosecutors' communications with represented individuals and, in so doing, to preempt inconsistent state and federal rules of professional conduct. See Communications with Represented Persons, 28 C.F.R. pt. 77 (1995); infra part I.
24. In the colonial era, responsibility for regulating lawyers was largely shared by colonial courts and legislatures. See Bruce A. Green, "Lethal Fiction": The Meaning of "Counsel" in the Sixth Amendment, 78 IOWA L. REV. 433, 465-68 (1993) (describing colonial and post-revolutionary licensing statutes). Since this nation's founding, however, the oversight of lawyers has been predominantly a judicial function. Today, it is understood that federal courts and most state courts supervise and discipline lawyers pursuant to inherent judicial authority "to admit, suspend and disbar lawyers who practice within the jurisdiction of the court." Green, supra note 6, at 530-31 nn.161-62 (citing authority); see Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. ARK. LITTLE ROCK L.J. 1, 3-6 (1989-90); see also Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 TEX. L. REV. 1805 (1995) (discussing the "broad, inherent authority in state and federal trial courts to exert a high degree of affirmative case management"); John Papachristos, Comment, Inherent Power Found, Rule 11 Lost: Taking a Shortcut to Impose Sanctions in Chambers v. NASCO, 59 BROOK. L. REV. 1225 (1993) (analyzing "the Supreme Court's arguments in favor of a broad inherent power"). Judicial regulation of lawyers' practice may also be premised on express grants of authority by legislative or state constitutional provisions. For example, federal district courts have authority to adopt local rules regulating lawyers pursuant to 28 U.S.C. § 2071 (1988), FED. R. CRIM. P. 57, and FED. R. CIV. P. 83. See Green, supra note 6, at 533 n.176. Pursuant to this authority, courts may establish standards of conduct for lawyers either through rulemaking or on an ad hoc basis in the course of adjudication. See, e.g., Theard v. United States, 354 U.S. 278, 281 (1957) (holding that disbarment by state court does not automatically result in disbarment by federal court); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 240 (2d Cir.) ("It is well established that a district court, pursuant to its rulemaking authority or on an ad hoc basis, may review a contingency fee agreement."), cert. denied, 484 U.S. 926 (1987); Jenkins v. McCoy, 882 F. Supp. 549, 553 (S.D.W. Va. 1995) (citing authority for the proposition that "courts have an inherent authority to supervise the collection of attorney fees and monitor contingent fee agreements"). For most of the past quarter century, the scope of the courts' inherent authority to regulate lawyers was considered to be extremely expansive. To be sure, rules of conduct are subject to the limits of constitutional provisions such as the First Amendment, see, e.g., Bates v. State Bar, 433 U.S. 350 (1977), as well as express statutory limits, see, e.g., Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992). Subject to that caveat, however, courts have assumed that they have authority to impose upon lawyers virtually any standard of conduct that might plausibly be justified based on any of a variety of interests, including the need to protect clients and prospective clients, the attorney-client relationship, the integrity of judicial proceedings, or the need to promote public respect for the courts or the legal profession. See, e.g., Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) ("This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. . . . The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers, . . . the traditional inherent and essential function of attorneys as officers of the courts, . . . and this court's exclusive original jurisdiction of attorney disciplinary proceedings."). The most serious recent challenge to the scope of courts' supervisory authority over lawyers has come from the United States Department of Justice, which promulgated a federal regulation in August 1994 that is intended to govern prosecutors' communications with represented individuals and, in so doing, to preempt inconsistent state and federal rules of professional conduct. See Communications with Represented Persons, 28 C.F.R. pt. 77 (1995); infra part I.
25. In the colonial era, responsibility for regulating lawyers was largely shared by colonial courts and legislatures. See Bruce A. Green, "Lethal Fiction": The Meaning of "Counsel" in the Sixth Amendment, 78 IOWA L. REV. 433, 465-68 (1993) (describing colonial and post-revolutionary licensing statutes). Since this nation's founding, however, the oversight of lawyers has been predominantly a judicial function. Today, it is understood that federal courts and most state courts supervise and discipline lawyers pursuant to inherent judicial authority "to admit, suspend and disbar lawyers who practice within the jurisdiction of the court." Green, supra note 6, at 530-31 nn.161-62 (citing authority); see Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. ARK. LITTLE ROCK L.J. 1, 3-6 (1989-90); see also Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 TEX. L. REV. 1805 (1995) (discussing the "broad, inherent authority in state and federal trial courts to exert a high degree of affirmative case management"); John Papachristos, Comment, Inherent Power Found, Rule 11 Lost: Taking a Shortcut to Impose Sanctions in Chambers v. NASCO, 59 BROOK. L. REV. 1225 (1993) (analyzing "the Supreme Court's arguments in favor of a broad inherent power"). Judicial regulation of lawyers' practice may also be premised on express grants of authority by legislative or state constitutional provisions. For example, federal district courts have authority to adopt local rules regulating lawyers pursuant to 28 U.S.C. § 2071 (1988), FED. R. CRIM. P. 57, and FED. R. CIV. P. 83. See Green, supra note 6, at 533 n.176. Pursuant to this authority, courts may establish standards of conduct for lawyers either through rulemaking or on an ad hoc basis in the course of adjudication. See, e.g., Theard v. United States, 354 U.S. 278, 281 (1957) (holding that disbarment by state court does not automatically result in disbarment by federal court); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 240 (2d Cir.) ("It is well established that a district court, pursuant to its rulemaking authority or on an ad hoc basis, may review a contingency fee agreement."), cert. denied, 484 U.S. 926 (1987); Jenkins v. McCoy, 882 F. Supp. 549, 553 (S.D.W. Va. 1995) (citing authority for the proposition that "courts have an inherent authority to supervise the collection of attorney fees and monitor contingent fee agreements"). For most of the past quarter century, the scope of the courts' inherent authority to regulate lawyers was considered to be extremely expansive. To be sure, rules of conduct are subject to the limits of constitutional provisions such as the First Amendment, see, e.g., Bates v. State Bar, 433 U.S. 350 (1977), as well as express statutory limits, see, e.g., Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992). Subject to that caveat, however, courts have assumed that they have authority to impose upon lawyers virtually any standard of conduct that might plausibly be justified based on any of a variety of interests, including the need to protect clients and prospective clients, the attorney-client relationship, the integrity of judicial proceedings, or the need to promote public respect for the courts or the legal profession. See, e.g., Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) ("This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. . . . The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers, . . . the traditional inherent and essential function of attorneys as officers of the courts, . . . and this court's exclusive original jurisdiction of attorney disciplinary proceedings."). The most serious recent challenge to the scope of courts' supervisory authority over lawyers has come from the United States Department of Justice, which promulgated a federal regulation in August 1994 that is intended to govern prosecutors' communications with represented individuals and, in so doing, to preempt inconsistent state and federal rules of professional conduct. See Communications with Represented Persons, 28 C.F.R. pt. 77 (1995); infra part I.
26. In the colonial era, responsibility for regulating lawyers was largely shared by colonial courts and legislatures. See Bruce A. Green, "Lethal Fiction": The Meaning of "Counsel" in the Sixth Amendment, 78 IOWA L. REV. 433, 465-68 (1993) (describing colonial and post-revolutionary licensing statutes). Since this nation's founding, however, the oversight of lawyers has been predominantly a judicial function. Today, it is understood that federal courts and most state courts supervise and discipline lawyers pursuant to inherent judicial authority "to admit, suspend and disbar lawyers who practice within the jurisdiction of the court." Green, supra note 6, at 530-31 nn.161-62 (citing authority); see Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. ARK. LITTLE ROCK L.J. 1, 3-6 (1989-90); see also Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 TEX. L. REV. 1805 (1995) (discussing the "broad, inherent authority in state and federal trial courts to exert a high degree of affirmative case management"); John Papachristos, Comment, Inherent Power Found, Rule 11 Lost: Taking a Shortcut to Impose Sanctions in Chambers v. NASCO, 59 BROOK. L. REV. 1225 (1993) (analyzing "the Supreme Court's arguments in favor of a broad inherent power"). Judicial regulation of lawyers' practice may also be premised on express grants of authority by legislative or state constitutional provisions. For example, federal district courts have authority to adopt local rules regulating lawyers pursuant to 28 U.S.C. § 2071 (1988), FED. R. CRIM. P. 57, and FED. R. CIV. P. 83. See Green, supra note 6, at 533 n.176. Pursuant to this authority, courts may establish standards of conduct for lawyers either through rulemaking or on an ad hoc basis in the course of adjudication. See, e.g., Theard v. United States, 354 U.S. 278, 281 (1957) (holding that disbarment by state court does not automatically result in disbarment by federal court); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 240 (2d Cir.) ("It is well established that a district court, pursuant to its rulemaking authority or on an ad hoc basis, may review a contingency fee agreement."), cert. denied, 484 U.S. 926 (1987); Jenkins v. McCoy, 882 F. Supp. 549, 553 (S.D.W. Va. 1995) (citing authority for the proposition that "courts have an inherent authority to supervise the collection of attorney fees and monitor contingent fee agreements"). For most of the past quarter century, the scope of the courts' inherent authority to regulate lawyers was considered to be extremely expansive. To be sure, rules of conduct are subject to the limits of constitutional provisions such as the First Amendment, see, e.g., Bates v. State Bar, 433 U.S. 350 (1977), as well as express statutory limits, see, e.g., Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992). Subject to that caveat, however, courts have assumed that they have authority to impose upon lawyers virtually any standard of conduct that might plausibly be justified based on any of a variety of interests, including the need to protect clients and prospective clients, the attorney-client relationship, the integrity of judicial proceedings, or the need to promote public respect for the courts or the legal profession. See, e.g., Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) ("This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. . . . The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers, . . . the traditional inherent and essential function of attorneys as officers of the courts, . . . and this court's exclusive original jurisdiction of attorney disciplinary proceedings."). The most serious recent challenge to the scope of courts' supervisory authority over lawyers has come from the United States Department of Justice, which promulgated a federal regulation in August 1994 that is intended to govern prosecutors' communications with represented individuals and, in so doing, to preempt inconsistent state and federal rules of professional conduct. See Communications with Represented Persons, 28 C.F.R. pt. 77 (1995); infra part I.
27. In the colonial era, responsibility for regulating lawyers was largely shared by colonial courts and legislatures. See Bruce A. Green, "Lethal Fiction": The Meaning of "Counsel" in the Sixth Amendment, 78 IOWA L. REV. 433, 465-68 (1993) (describing colonial and post-revolutionary licensing statutes). Since this nation's founding, however, the oversight of lawyers has been predominantly a judicial function. Today, it is understood that federal courts and most state courts supervise and discipline lawyers pursuant to inherent judicial authority "to admit, suspend and disbar lawyers who practice within the jurisdiction of the court." Green, supra note 6, at 530-31 nn.161-62 (citing authority); see Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. ARK. LITTLE ROCK L.J. 1, 3-6 (1989-90); see also Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 TEX. L. REV. 1805 (1995) (discussing the "broad, inherent authority in state and federal trial courts to exert a high degree of affirmative case management"); John Papachristos, Comment, Inherent Power Found, Rule 11 Lost: Taking a Shortcut to Impose Sanctions in Chambers v. NASCO, 59 BROOK. L. REV. 1225 (1993) (analyzing "the Supreme Court's arguments in favor of a broad inherent power"). Judicial regulation of lawyers' practice may also be premised on express grants of authority by legislative or state constitutional provisions. For example, federal district courts have authority to adopt local rules regulating lawyers pursuant to 28 U.S.C. § 2071 (1988), FED. R. CRIM. P. 57, and FED. R. CIV. P. 83. See Green, supra note 6, at 533 n.176. Pursuant to this authority, courts may establish standards of conduct for lawyers either through rulemaking or on an ad hoc basis in the course of adjudication. See, e.g., Theard v. United States, 354 U.S. 278, 281 (1957) (holding that disbarment by state court does not automatically result in disbarment by federal court); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 240 (2d Cir.) ("It is well established that a district court, pursuant to its rulemaking authority or on an ad hoc basis, may review a contingency fee agreement."), cert. denied, 484 U.S. 926 (1987); Jenkins v. McCoy, 882 F. Supp. 549, 553 (S.D.W. Va. 1995) (citing authority for the proposition that "courts have an inherent authority to supervise the collection of attorney fees and monitor contingent fee agreements"). For most of the past quarter century, the scope of the courts' inherent authority to regulate lawyers was considered to be extremely expansive. To be sure, rules of conduct are subject to the limits of constitutional provisions such as the First Amendment, see, e.g., Bates v. State Bar, 433 U.S. 350 (1977), as well as express statutory limits, see, e.g., Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992). Subject to that caveat, however, courts have assumed that they have authority to impose upon lawyers virtually any standard of conduct that might plausibly be justified based on any of a variety of interests, including the need to protect clients and prospective clients, the attorney-client relationship, the integrity of judicial proceedings, or the need to promote public respect for the courts or the legal profession. See, e.g., Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) ("This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. . . . The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers, . . . the traditional inherent and essential function of attorneys as officers of the courts, . . . and this court's exclusive original jurisdiction of attorney disciplinary proceedings."). The most serious recent challenge to the scope of courts' supervisory authority over lawyers has come from the United States Department of Justice, which promulgated a federal regulation in August 1994 that is intended to govern prosecutors' communications with represented individuals and, in so doing, to preempt inconsistent state and federal rules of professional conduct. See Communications with Represented Persons, 28 C.F.R. pt. 77 (1995); infra part I.
28. See, e.g., 1 Laws. Man. on Prof. Conduct (ABA/BNA) 01:3 (Feb. 23, 1994) (listing states adopting rules based on ABA Model Rules of Professional Conduct).
29. MODEL RULES OF PROFESSIONAL CONDUCT (1983).
30. MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1970). The one exception is California, where the California Rules of Professional Conduct depart from both ABA models. See WOLFRAM, supra note 4, at 64-65.
31. See, e.g., Rand v. Monsanto Co., 926 F.2d 596, 600 (7th Cir. 1991) (criticizing inconsistent standards in federal district courts resulting from application of state court rules of professional conduct).
32. See, e.g., In re Snyder, 472 U.S. 634, 645 n.6 (1985) ("The state code of professional responsibility does not by its own terms apply to sanctions in the federal courts."); In re American Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992) ("Federal courts may adopt state or ABA rules as their ethical standards, but whether and how these rules are to be applied are questions of federal law."), cert. denied, 507 U.S. 912 (1993).
33. See Daniel R. Coquillette, Report on Local Rules Regulating Attorney Conduct 3-4 (July 5, 1995) (on file with author) [hereinafter Coquillette Report]. Some district courts apply the ABA Model Rules; some apply the earlier ABA Model Code; some apply the standards applicable in the state in which the district court sits; some apply some combination of these; and others have not explicitly adopted any set of rules. Id.; see also Linda S. Mullenix, Multiforum Federal Practice: Ethics and Erie, 9 GEO. J. LEGAL ETHICS 89, 99-101 (1995) (discussing the various model codes and rules of professional responsibility adopted by different federal district courts); Eli J. Richardson, Demystifying the Federal Law of Attorney Ethics, 29 GA. L. REV. 137, 152 (1994) (discussing the failure of some federal courts to distinguish the applicable ethics code); Malcolm R. Wilkey, Proposal for a "United States Bar", 58 A.B.A. J. 355, 356 (1972) (advocating the development of a "uniform nationwide criteria for the admission of attorneys to practice before all United States district and appellate courts"); Harvey G. Sherzer, Note, Certification of Out-of-State Attorneys Before the Federal District Courts: A Plea for National Standards, 36 GEO. WASH. L. REV. 204, 209 (1967) (recommending the unification of the many district court rules).
34. See Daniel R. Coquillette, Report on Local Rules Regulating Attorney Conduct 3-4 (July 5, 1995) (on file with author) [hereinafter Coquillette Report]. Some district courts apply the ABA Model Rules; some apply the earlier ABA Model Code; some apply the standards applicable in the state in which the district court sits; some apply some combination of these; and others have not explicitly adopted any set of rules. Id.; see also Linda S. Mullenix, Multiforum Federal Practice: Ethics and Erie, 9 GEO. J. LEGAL ETHICS 89, 99-101 (1995) (discussing the various model codes and rules of professional responsibility adopted by different federal district courts); Eli J. Richardson, Demystifying the Federal Law of Attorney Ethics, 29 GA. L. REV. 137, 152 (1994) (discussing the failure of some federal courts to distinguish the applicable ethics code); Malcolm R. Wilkey, Proposal for a "United States Bar", 58 A.B.A. J. 355, 356 (1972) (advocating the development of a "uniform nationwide criteria for the admission of attorneys to practice before all United States district and appellate courts"); Harvey G. Sherzer, Note, Certification of Out-of-State Attorneys Before the Federal District Courts: A Plea for National Standards, 36 GEO. WASH. L. REV. 204, 209 (1967) (recommending the unification of the many district court rules).
35. See Daniel R. Coquillette, Report on Local Rules Regulating Attorney Conduct 3-4 (July 5, 1995) (on file with author) [hereinafter Coquillette Report]. Some district courts apply the ABA Model Rules; some apply the earlier ABA Model Code; some apply the standards applicable in the state in which the district court sits; some apply some combination of these; and others have not explicitly adopted any set of rules. Id.; see also Linda S. Mullenix, Multiforum Federal Practice: Ethics and Erie, 9 GEO. J. LEGAL ETHICS 89, 99-101 (1995) (discussing the various model codes and rules of professional responsibility adopted by different federal district courts); Eli J. Richardson, Demystifying the Federal Law of Attorney Ethics, 29 GA. L. REV. 137, 152 (1994) (discussing the failure of some federal courts to distinguish the applicable ethics code); Malcolm R. Wilkey, Proposal for a "United States Bar", 58 A.B.A. J. 355, 356 (1972) (advocating the development of a "uniform nationwide criteria for the admission of attorneys to practice before all United States district and appellate courts"); Harvey G. Sherzer, Note, Certification of Out-of-State Attorneys Before the Federal District Courts: A Plea for National Standards, 36 GEO. WASH. L. REV. 204, 209 (1967) (recommending the unification of the many district court rules).
36. See Daniel R. Coquillette, Report on Local Rules Regulating Attorney Conduct 3-4 (July 5, 1995) (on file with author) [hereinafter Coquillette Report]. Some district courts apply the ABA Model Rules; some apply the earlier ABA Model Code; some apply the standards applicable in the state in which the district court sits; some apply some combination of these; and others have not explicitly adopted any set of rules. Id.; see also Linda S. Mullenix, Multiforum Federal Practice: Ethics and Erie, 9 GEO. J. LEGAL ETHICS 89, 99-101 (1995) (discussing the various model codes and rules of professional responsibility adopted by different federal district courts); Eli J. Richardson, Demystifying the Federal Law of Attorney Ethics, 29 GA. L. REV. 137, 152 (1994) (discussing the failure of some federal courts to distinguish the applicable ethics code); Malcolm R. Wilkey, Proposal for a "United States Bar", 58 A.B.A. J. 355, 356 (1972) (advocating the development of a "uniform nationwide criteria for the admission of attorneys to practice before all United States district and appellate courts"); Harvey G. Sherzer, Note, Certification of Out-of-State Attorneys Before the Federal District Courts: A Plea for National Standards, 36 GEO. WASH. L. REV. 204, 209 (1967) (recommending the unification of the many district court rules).
37. See infra notes 327-328 and accompanying text.
38. Coquillette Report, supra note 13.
39. See id. at 38-41. Eli J. Richardson recently made a similar recommendation. See Richardson, supra note 13, at 184 ("Each federal court should identify in its local rules a single code that governs attorneys' conduct in the court to the exclusion of all other codes.").
40. See Coquillette Report, supra note 13, at 38-39.
41. Id. at 39-41.
42. See supra note 10.
43. A committee of the Association of the Bar of the City of New York recently divided almost equally between these two options. See Committee on Professional Responsibility, Uniform Ethics Rules in Federal Court: Jurisdictional Issues in Professional Regulation, 50 REC. ASS'N B. CITY N.Y. 842, 842 (1995) [hereinafter Uniform Ethics Rules]. Nine members favored a federal rule adopting the ABA Model Rules, while the other eight favored a choice-of-law rule directing federal courts to apply specified state rules of ethics. Id. In her recently published article, Linda S. Mullenix takes a similar approach to the question of what ethical rules should apply in federal court. She begins by describing the federal courts' application of inconsistent sets of ethical rules as well as, in some cases, their reliance on common law or procedural rules. See Mullinex, supra note 13, at 100-02. She perceives this hodgepodge of authority to create difficulties for litigators in ascertaining what standard of professional conduct to uphold in any given case. As an interim solution, she suggests a uniform federal choice-of-law provision to guide the determination of which federal district's ethical rules should apply when the potentially applicable rules are inconsistent. See id. at 127. For the long term, she urges the federal judiciary to promulgate a uniform code of professional responsibility for federal practitioners. See id. at 126. She does not, however, address the nature of such a code. By contrast, this Article does not agree that the existence of differently worded rules is the root of the problem for litigators. Rather, this Article argues that federal litigators are potentially subject to inconsistent standards of conduct largely because courts render inconsistent interpretations of rules that are substantially similar, if not identical, in wording. See infra part II. The adoption of a single set of federal rules will not go far toward establishing uniformity unless those rules are more detailed and less ambiguous than the ABA-drafted rules on which courts presently rely. A uniform set of ambiguous and open-textured rules would invite courts of different districts, and even different courts of the same district, to render inconsistent interpretations, as they presently do. See infra part II.B.2. Litigators would remain uncertain about what conduct is expected of them. Thus, while taking as its starting point the need for federal rules of ethics, this Article focuses on the nature of the rules that federal courts should adopt and the process by which uniform rules should be developed. See infra part III.
44. Fred C. Zacharias has explored the possibilities of various federal legislative approaches to regulating lawyers' professional conduct. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 379-86, 396-406 (1994). Although his proposals are principally directed at the adoption of uniform standards to govern aspects of the professional conduct of both state and federal practitioners, see id. at 379-87, 396-99, he briefly explores the possibility of a uniform code applicable only in federal courts, see id. at 399-400. He is unenthusiastic about this option because it does not address the principal concern of his article, namely, the disparity of professional standards among the states. Id. at 399-400. Zacharias is one among several commentators who have addressed the inconsistency of state court standards of practice and the question of whether federal rules of conduct should be adopted to remedy this problem. See, e.g., Samuel J. Brakel & Wallace D. Loh, Regulating the Multistate Practice of Law, 50 WASH. L. REV. 699, 716-19 (1975); Stephen B. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 FORDHAM URB. L.J. 969, 969 (1992); Committee on Counsel Responsibility, Risks of Violation of Rules of Professional Responsibility by Reason of the Increased Disparity Among the States, 45 BUS. LAW. 1229, 1235-36 (1990); Judith A. McMorrow, Rule 11 and Federalizing Lawyer Ethics, 1991 B.Y.U. L. REV. 959, 976-81; Duncan T. O'Brien, Multistate Practice and Conflicting Ethical Obligations, 16 SETON HALL L. REV. 678, 678-81 (1986); Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 FORDHAM L. REV. 125, 127 (1991). This Article, in contrast, deals with the more realistically solvable problem of inconsistent federal court standards.
45. Fred C. Zacharias has explored the possibilities of various federal legislative approaches to regulating lawyers' professional conduct. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 379-86, 396-406 (1994). Although his proposals are principally directed at the adoption of uniform standards to govern aspects of the professional conduct of both state and federal practitioners, see id. at 379-87, 396-99, he briefly explores the possibility of a uniform code applicable only in federal courts, see id. at 399-400. He is unenthusiastic about this option because it does not address the principal concern of his article, namely, the disparity of professional standards among the states. Id. at 399-400. Zacharias is one among several commentators who have addressed the inconsistency of state court standards of practice and the question of whether federal rules of conduct should be adopted
46. Fred C. Zacharias has explored the possibilities of various federal legislative approaches to regulating lawyers' professional conduct. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 379-86, 396-406 (1994). Although his proposals are principally directed at the adoption of uniform standards to govern aspects of the professional conduct of both state and federal practitioners, see id. at 379-87, 396-99, he briefly explores the possibility of a uniform code applicable only in federal courts, see id. at 399-400. He is unenthusiastic about this option because it does not address the principal concern of his article, namely, the disparity of professional standards among the states. Id. at 399-400. Zacharias is one among several commentators who have addressed the inconsistency of state court standards of practice and the question of whether federal rules of conduct should be adopted to remedy this problem. See, e.g., Samuel J. Brakel & Wallace D. Loh, Regulating the Multistate Practice of Law, 50 WASH. L. REV. 699, 716-19 (1975); Stephen B. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 FORDHAM URB. L.J. 969, 969 (1992); Committee on Counsel Responsibility, Risks of Violation of Rules of Professional Responsibility by Reason of the Increased Disparity Among the States, 45 BUS. LAW. 1229, 1235-36 (1990); Judith A. McMorrow, Rule 11 and Federalizing Lawyer Ethics, 1991 B.Y.U. L. REV. 959, 976-81; Duncan T. O'Brien, Multistate Practice and Conflicting Ethical Obligations, 16 SETON HALL L. REV. 678, 678-81 (1986); Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 FORDHAM L. REV. 125, 127 (1991). This Article, in contrast, deals with the more realistically solvable problem of inconsistent federal court standards.
47. Fred C. Zacharias has explored the possibilities of various federal legislative approaches to regulating lawyers' professional conduct. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 379-86, 396-406 (1994). Although his proposals are principally directed at the adoption of uniform standards to govern aspects of the professional conduct of both state and federal practitioners, see id. at 379-87, 396-99, he briefly explores the possibility of a uniform code applicable only in federal courts, see id. at 399-400. He is unenthusiastic about this option because it does not address the principal concern of his article, namely, the disparity of professional standards among the states. Id. at 399-400. Zacharias is one among several commentators who have addressed the inconsistency of state court standards of practice and the question of whether federal rules of conduct should be adopted to remedy this problem. See, e.g., Samuel J. Brakel & Wallace D. Loh, Regulating the Multistate Practice of Law, 50 WASH. L. REV. 699, 716-19 (1975); Stephen B. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 FORDHAM URB. L.J. 969, 969 (1992); Committee on Counsel Responsibility, Risks of Violation of Rules of Professional Responsibility by Reason of the Increased Disparity Among the States, 45 BUS. LAW. 1229, 1235-36 (1990); Judith A. McMorrow, Rule 11 and Federalizing Lawyer Ethics, 1991 B.Y.U. L. REV. 959, 976-81; Duncan T. O'Brien, Multistate Practice and Conflicting Ethical Obligations, 16 SETON HALL L. REV. 678, 678-81 (1986); Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 FORDHAM L. REV. 125, 127 (1991). This Article, in contrast, deals with the more realistically solvable problem of inconsistent federal court standards.
48. Fred C. Zacharias has explored the possibilities of various federal legislative approaches to regulating lawyers' professional conduct. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 379-86, 396-406 (1994). Although his proposals are principally directed at the adoption of uniform standards to govern aspects of the professional conduct of both state and federal practitioners, see id. at 379-87, 396-99, he briefly explores the possibility of a uniform code applicable only in federal courts, see id. at 399-400. He is unenthusiastic about this option because it does not address the principal concern of his article, namely, the disparity of professional standards among the states. Id. at 399-400. Zacharias is one among several commentators who have addressed the inconsistency of state court standards of practice and the question of whether federal rules of conduct should be adopted to remedy this problem. See, e.g., Samuel J. Brakel & Wallace D. Loh, Regulating the Multistate Practice of Law, 50 WASH. L. REV. 699, 716-19 (1975); Stephen B. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 FORDHAM URB. L.J. 969, 969 (1992); Committee on Counsel Responsibility, Risks of Violation of Rules of Professional Responsibility by Reason of the Increased Disparity Among the States, 45 BUS. LAW. 1229, 1235-36 (1990); Judith A. McMorrow, Rule 11 and Federalizing Lawyer Ethics, 1991 B.Y.U. L. REV. 959, 976-81; Duncan T. O'Brien, Multistate Practice and Conflicting Ethical Obligations, 16 SETON HALL L. REV. 678, 678-81 (1986); Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 FORDHAM L. REV. 125, 127 (1991). This Article, in contrast, deals with the more realistically solvable problem of inconsistent federal court standards.
49. Fred C. Zacharias has explored the possibilities of various federal legislative approaches to regulating lawyers' professional conduct. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 379-86, 396-406 (1994). Although his proposals are principally directed at the adoption of uniform standards to govern aspects of the professional conduct of both state and federal practitioners, see id. at 379-87, 396-99, he briefly explores the possibility of a uniform code applicable only in federal courts, see id. at 399-400. He is unenthusiastic about this option because it does not address the principal concern of his article, namely, the disparity of professional standards among the states. Id. at 399-400. Zacharias is one among several commentators who have addressed the inconsistency of state court standards of practice and the question of whether federal rules of conduct should be adopted to remedy this problem. See, e.g., Samuel J. Brakel & Wallace D. Loh, Regulating the Multistate Practice of Law, 50 WASH. L. REV. 699, 716-19 (1975); Stephen B. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 FORDHAM URB. L.J. 969, 969 (1992); Committee on Counsel Responsibility, Risks of Violation of Rules of Professional Responsibility by Reason of the Increased Disparity Among the States, 45 BUS. LAW. 1229, 1235-36 (1990); Judith A. McMorrow, Rule 11 and Federalizing Lawyer Ethics, 1991 B.Y.U. L. REV. 959, 976-81; Duncan T. O'Brien, Multistate Practice and Conflicting Ethical Obligations, 16 SETON HALL L. REV. 678, 678-81 (1986); Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 FORDHAM L. REV. 125, 127 (1991). This Article, in contrast, deals with the more realistically solvable problem of inconsistent federal court standards.
50. Fred C. Zacharias has explored the possibilities of various federal legislative approaches to regulating lawyers' professional conduct. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 379-86, 396-406 (1994). Although his proposals are principally directed at the adoption of uniform standards to govern aspects of the professional conduct of both state and federal practitioners, see id. at 379-87, 396-99, he briefly explores the possibility of a uniform code applicable only in federal courts, see id. at 399-400. He is unenthusiastic about this option because it does not address the principal concern of his article, namely, the disparity of professional standards among the states. Id. at 399-400. Zacharias is one among several commentators who have addressed the inconsistency of state court standards of practice and the question of whether federal rules of conduct should be adopted to remedy this problem. See, e.g., Samuel J. Brakel & Wallace D. Loh, Regulating the Multistate Practice of Law, 50 WASH. L. REV. 699, 716-19 (1975); Stephen B. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 FORDHAM URB. L.J. 969, 969 (1992); Committee on Counsel Responsibility, Risks of Violation of Rules of Professional Responsibility by Reason of the Increased Disparity Among the States, 45 BUS. LAW. 1229, 1235-36 (1990); Judith A. McMorrow, Rule 11 and Federalizing Lawyer Ethics, 1991 B.Y.U. L. REV. 959, 976-81; Duncan T. O'Brien, Multistate Practice and Conflicting Ethical Obligations, 16 SETON HALL L. REV. 678, 678-81 (1986); Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 FORDHAM L. REV. 125, 127 (1991). This Article, in contrast, deals with the more realistically solvable problem of inconsistent federal court standards.
51. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
52. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
53. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
54. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
55. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
56. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
57. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
58. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
59. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
60. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
61. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. a, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
62. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking provisions). In the past decade, the most controversial example of federal agency regulation of law practice was the proceeding brought against Kaye, Scholer, Fierman, Hays, and Handler ("Kaye Scholer") by the Office of Thrift Supervision. The case has occasioned a flurry of professional and academic commentary. See, e.g., Dennis E. Curtis, Old Knights and New Champions: Kaye, Scholer, The Office of Thrift Supervision, and the Pursuit of the Dollar, 66 S. CAL. L. REV. 985 (1993); Joyce A. Hughes, Law Firm Kaye, Scholer, Lincoln S&L and the OTS, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 177 (1993); David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993); Nancy A. Combs, Comment, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer, 82 CAL. L. REV. 663 (1994); Charles R. Zubrzycki, Note, Current Developments, The Kaye, Scholer Case: Attorneys' Ethical Duties to Third Parties in Regulatory Situations, 6 GEO. J. LEGAL ETHICS 977 (1993). In many ways, the Kaye Scholer case seemed to reprise the controversy two decades earlier surrounding the SEC's attempts to police lawyers appearing before that agency. See, e.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 536-37 (2d Cir. 1973) (sanctioning lawyer who had negligently prepared an erroneous opinion letter used to sell securities); SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (holding that a lawyer knowing of substantial misrepresentations in proxy statement is liable for aiding and abetting securities fraud by closing merger). See generally ABA Section of Corp., Banking and Business Law Ad Hoc Comm., SEC Standard of Conduct for Lawyers: Comments on the SEC Rule Proposal, 37 BUS. LAW. 915 (1982) (announcing the response by the ABA to the SEC's proposed standards of professional conduct for lawyers); David H. Barber, Lawyer Duties in Securities Transactions Under Rule 2(e): The Carter Opinions, 1982 B.Y.U. L. REV. 513, 514 (assessing "the current status of administrative actions brought by the SEC against lawyers pursuant to Rule 2(e) . . . in an attempt to identify the duties of securities lawyers under that section"); Robert A. Downing & Richard L. Miller, Jr. The Distortion and Misuse of Rule 2(e), 54 NOTRE DAME LAW. 774 (1979) (discussing the existence and scope of the SEC's statutory authority to regulate the professionals practicing before it); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma, 33 BUS. LAW. 1389 (1978); Steven C. Krane, The Attorney Unshackled: SEC Rule 2(e) Violates Client's Sixth Amendment Right to Counsel, 57 NOTRE DAME LAW. 50 (1981) (discussing the SEC's regulation of the securities bar).
63. Although federal agencies have not ordinarily attempted to regulate the practice of non-agency lawyers before federal courts, they have exercised their authority to regulate the practice of private lawyers in agency proceedings. See Coquillette Report, supra note 13, at 26 n.14 (citing inter alia, Securities and Exchange Commission, Canons of Ethics, 17 C.F.R. §§ 200.50-.72 (1994); Patent and Trademark Office Code of Professional Responsibility, 37 C.F.R. §§ 10.20-.112 (1994); Immigration and Naturalization Service Regulations, 8 C.F.R. § 292.3 (1994); Internal Revenue Service Rules Applicable to Disciplinary Proceedings, 31 C.F.R. §§ (A) 10.50-.59 (1994)); see generally Arthur Best, Shortcomings of Administrative Agency Lawyer Discipline, 31 EMORY L.J. 535 (1982) (describing the regulation of attorneys in agency proceedings by the Securities and Exchange Commission ("SEC") and Federal Communications Commission); Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and Government Service, 22 SAN DIEGO L. REV. 971 (1985) (examining the professional responsibility standards employed by the Immigration and Naturalization Service to regulate the conduct of practitioners); Note, SEC Disciplinary Proceedings Against Attorneys Under Rule 2(e), 79 MICH. L. REV. 1270 (1981) (discussing the authority of the SEC to discipline attorneys under general rulemaking
64. See Communications with Represented Persons, 59 Fed. Reg. 39,910 (1994) (to be codified at 28 C.F.R. pt. 77) (proposed Aug. 4, 1994) [hereinafter Communications with Represented Persons (Final Rule)]; infra part II.
65. See S. 3, 104th Cong., 1st Sess. § 502 (1995) ("Notwithstanding the ethical rules or the rules of the court of any State, Federal rules of conduct adopted by the Attorney General shall govern the conduct of prosecutions in the courts of the United States."); Coquillette Report, supra note 13, at 36-38.
66. The DOJ has taken issue with two other provisions of the ABA Model Rules. The first, Model Rule 3.8(f) of the ABA Model Rules, limits the circumstances under which a prosecutor may issue a grand jury subpoena to a lawyer in order to obtain testimony about the lawyer's client. In 1986, the United States District Court for the District of Massachusetts adopted a similar restriction, which the government challenged unsuccessfully. See United States v. Klubock, 639 F. Supp. 117, 117 (D. Mass. 1986), aff'd by an equally divided court, 832 F.2d 664 (1st Cir. 1987) (en banc). Following the ABA's amendment of the Model Rules to include Model Rule 3.8(f), the government opposed the adoption of this provision by other federal district courts with relative success. Compare Petition of Almond, 603 A.2d 1087, 1087 (R.I. 1992) (rejecting United States Attorney's request to exempt federal prosecutors licensed in the state from the provision requiring prior judicial approval for attorney subpoenas) with Baylson v. Disciplinary Bd., 975 F.2d 102, 104 (3d Cir. 1992) (holding that the rule may not be enforced against federal prosecutors in Pennsylvania). 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, 359-86 (1992) (discussing "the controversy arising out of the increased use of subpoenas to lawyers"); David A. Hoffman et al., Attorney Subpoenas and Massachusetts Rule PF 15, 74 MASS. L. REV. 95, 96-97 (1989) (identifying "the problem the attorney subpoena poses for the attorney-client relationship"); Max D. Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U. PA. L. REV. 1783, 1795-815 (1988) (discussing the judicial response to the increased use of attorney subpoenas); Robert N. Weiner, Federal Grand Jury Subpoenas to Attorneys: A Proposal for Reform, 23 AM. CRIM. L. REV. 95, 125-33 (1985) (proposing administrative action to protect the attorney-client relationship modeled after the regulations promulgated by the DOJ for subpoenas to journalists); Patricia A. Mellon, Comment, Attorneys' Subpoenas: The Constitutional, Ethical and Practical Issues, 60 TEMP. L.Q. 121 (1987) (concluding that "the threat attorneys' subpoenas pose to the attorney-client relationship mandates some restraint on the use of such subpoenas"). To a lesser extent, the DOJ has resisted application of ABA Model Rule 3.3(d), which requires lawyers in ex parte proceedings to 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." According to the accompanying commentary, this rule would apply in grand jury proceedings. It would therefore seem to require prosecutors, as an ethical matter, to disclose exculpatory evidence to the grand jury when seeking an indictment. In December 1993, the DOJ filed a civil lawsuit in Colorado, in part seeking to enjoin the application of that state's version of this rule. See United States v. Colorado Supreme Court Grievance Comm., 871 F. Supp. 1328, 1328 (D. Colo. 1994). The DOJ's legal challenge was subsequently dismissed on jurisdictional grounds. Id. at 1330.
67. The DOJ has taken issue with two other provisions of the ABA Model Rules. The first, Model Rule 3.8(f) of the ABA Model Rules, limits the circumstances under which a prosecutor may issue a grand jury subpoena to a lawyer in order to obtain testimony about the lawyer's client. In 1986, the United States District Court for the District of Massachusetts adopted a similar restriction, which the government challenged unsuccessfully. See United States v. Klubock, 639 F. Supp. 117, 117 (D. Mass. 1986), aff'd by an equally divided court, 832 F.2d 664 (1st Cir. 1987) (en banc). Following the ABA's amendment of the Model Rules to include Model Rule 3.8(f), the government opposed the adoption of this provision by other federal district courts with relative success. Compare Petition of Almond, 603 A.2d 1087, 1087 (R.I. 1992) (rejecting United States Attorney's request to exempt federal prosecutors licensed in the state from the provision requiring prior judicial approval for attorney subpoenas) with Baylson v. Disciplinary Bd., 975 F.2d 102, 104 (3d Cir. 1992) (holding that the rule may not be enforced against federal prosecutors in Pennsylvania). 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, 359-86 (1992) (discussing "the controversy arising out of the increased use of subpoenas to lawyers"); David A. Hoffman et al., Attorney Subpoenas and Massachusetts Rule PF 15, 74 MASS. L. REV. 95, 96-97 (1989) (identifying "the problem the attorney subpoena poses for the attorney-client relationship"); Max D. Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U. PA. L. REV. 1783, 1795-815 (1988) (discussing the judicial response to the increased use of attorney subpoenas); Robert N. Weiner, Federal Grand Jury Subpoenas to Attorneys: A Proposal for Reform, 23 AM. CRIM. L. REV. 95, 125-33 (1985) (proposing administrative action to protect the attorney-client relationship modeled after the regulations promulgated by the DOJ for subpoenas to journalists); Patricia A. Mellon, Comment, Attorneys' Subpoenas: The Constitutional, Ethical and Practical Issues, 60 TEMP. L.Q. 121 (1987) (concluding that "the threat attorneys' subpoenas pose to the attorney-client relationship mandates some restraint on the use of such subpoenas"). To a lesser extent, the DOJ has resisted application of ABA Model Rule 3.3(d), which requires lawyers in ex parte proceedings to 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." According to the accompanying commentary, this rule would apply in grand jury proceedings. It would therefore seem to require prosecutors, as an ethical matter, to disclose exculpatory evidence to the grand jury when seeking an indictment. In December 1993, the DOJ filed a civil lawsuit in Colorado, in part seeking to enjoin the application of that state's version of this rule. See United States v. Colorado Supreme Court Grievance Comm., 871 F. Supp. 1328, 1328 (D. Colo. 1994). The DOJ's legal challenge was subsequently dismissed on jurisdictional grounds. Id. at 1330.
68. The DOJ has taken issue with two other provisions of the ABA Model Rules. The first, Model Rule 3.8(f) of the ABA Model Rules, limits the circumstances under which a prosecutor may issue a grand jury subpoena to a lawyer in order to obtain testimony about the lawyer's client. In 1986, the United States District Court for the District of Massachusetts adopted a similar restriction, which the government challenged unsuccessfully. See United States v. Klubock, 639 F. Supp. 117, 117 (D. Mass. 1986), aff'd by an equally divided court, 832 F.2d 664 (1st Cir. 1987) (en banc). Following the ABA's amendment of the Model Rules to include Model Rule 3.8(f), the government opposed the adoption of this provision by other federal district courts with relative success. Compare Petition of Almond, 603 A.2d 1087, 1087 (R.I. 1992) (rejecting United States Attorney's request to exempt federal prosecutors licensed in the state from the provision requiring prior judicial approval for attorney subpoenas) with Baylson v. Disciplinary Bd., 975 F.2d 102, 104 (3d Cir. 1992) (holding that the rule may not be enforced against federal prosecutors in Pennsylvania). 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, 359-86 (1992) (discussing "the controversy arising out of the increased use of subpoenas to lawyers"); David A. Hoffman et al., Attorney Subpoenas and Massachusetts Rule PF 15, 74 MASS. L. REV. 95, 96-97 (1989) (identifying "the problem the attorney subpoena poses for the attorney-client relationship"); Max D. Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U. PA. L. REV. 1783, 1795-815 (1988) (discussing the judicial response to the increased use of attorney subpoenas); Robert N. Weiner, Federal Grand Jury Subpoenas to Attorneys: A Proposal for Reform, 23 AM. CRIM. L. REV. 95, 125-33 (1985) (proposing administrative action to protect the attorney-client relationship modeled after the regulations promulgated by the DOJ for subpoenas to journalists); Patricia A. Mellon, Comment, Attorneys' Subpoenas: The Constitutional, Ethical and Practical Issues, 60 TEMP. L.Q. 121 (1987) (concluding that "the threat attorneys' subpoenas pose to the attorney-client relationship mandates some restraint on the use of such subpoenas"). To a lesser extent, the DOJ has resisted application of ABA Model Rule 3.3(d), which requires lawyers in ex parte proceedings to 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." According to the accompanying commentary, this rule would apply in grand jury proceedings. It would therefore seem to require prosecutors, as an ethical matter, to disclose exculpatory evidence to the grand jury when seeking an indictment. In December 1993, the DOJ filed a civil lawsuit in Colorado, in part seeking to enjoin the application of that state's version of this rule. See United States v. Colorado Supreme Court Grievance Comm., 871 F. Supp. 1328, 1328 (D. Colo. 1994). The DOJ's legal challenge was subsequently dismissed on jurisdictional grounds. Id. at 1330.
69. The DOJ has taken issue with two other provisions of the ABA Model Rules. The first, Model Rule 3.8(f) of the ABA Model Rules, limits the circumstances under which a prosecutor may issue a grand jury subpoena to a lawyer in order to obtain testimony about the lawyer's client. In 1986, the United States District Court for the District of Massachusetts adopted a similar restriction, which the government challenged unsuccessfully. See United States v. Klubock, 639 F. Supp. 117, 117 (D. Mass. 1986), aff'd by an equally divided court, 832 F.2d 664 (1st Cir. 1987) (en banc). Following the ABA's amendment of the Model Rules to include Model Rule 3.8(f), the government opposed the adoption of this provision by other federal district courts with relative success. Compare Petition of Almond, 603 A.2d 1087, 1087 (R.I. 1992) (rejecting United States Attorney's request to exempt federal prosecutors licensed in the state from the provision requiring prior judicial approval for attorney subpoenas) with Baylson v. Disciplinary Bd., 975 F.2d 102, 104 (3d Cir. 1992) (holding that the rule may not be enforced against federal prosecutors in Pennsylvania). 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, 359-86 (1992) (discussing "the controversy arising out of the increased use of subpoenas to lawyers"); David A. Hoffman et al., Attorney Subpoenas and Massachusetts Rule PF 15, 74 MASS. L. REV. 95, 96-97 (1989) (identifying "the problem the attorney subpoena poses for the attorney-client relationship"); Max D. Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U. PA. L. REV. 1783, 1795-815 (1988) (discussing the judicial response to the increased use of attorney subpoenas); Robert N. Weiner, Federal Grand Jury Subpoenas to Attorneys: A Proposal for Reform, 23 AM. CRIM. L. REV. 95, 125-33 (1985) (proposing administrative action to protect the attorney-client relationship modeled after the regulations promulgated by the DOJ for subpoenas to journalists); Patricia A. Mellon, Comment, Attorneys' Subpoenas: The Constitutional, Ethical and Practical Issues, 60 TEMP. L.Q. 121 (1987) (concluding that "the threat attorneys' subpoenas pose to the attorney-client relationship mandates some restraint on the use of such subpoenas"). To a lesser extent, the DOJ has resisted application of ABA Model Rule 3.3(d), which requires lawyers in ex parte proceedings to 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." According to the accompanying commentary, this rule would apply in grand jury proceedings. It would therefore seem to require prosecutors, as an ethical matter, to disclose exculpatory evidence to the grand jury when seeking an indictment. In December 1993, the DOJ filed a civil lawsuit in Colorado, in part seeking to enjoin the application of that state's version of this rule. See United States v. Colorado Supreme Court Grievance Comm., 871 F. Supp. 1328, 1328 (D. Colo. 1994). The DOJ's legal challenge was subsequently dismissed on jurisdictional grounds. Id. at 1330.
70. The DOJ has taken issue with two other provisions of the ABA Model Rules. The first, Model Rule 3.8(f) of the ABA Model Rules, limits the circumstances under which a prosecutor may issue a grand jury subpoena to a lawyer in order to obtain testimony about the lawyer's client. In 1986, the United States District Court for the District of Massachusetts adopted a similar restriction, which the government challenged unsuccessfully. See United States v. Klubock, 639 F. Supp. 117, 117 (D. Mass. 1986), aff'd by an equally divided court, 832 F.2d 664 (1st Cir. 1987) (en banc). Following the ABA's amendment of the Model Rules to include Model Rule 3.8(f), the government opposed the adoption of this provision by other federal district courts with relative success. Compare Petition of Almond, 603 A.2d 1087, 1087 (R.I. 1992) (rejecting United States Attorney's request to exempt federal prosecutors licensed in the state from the provision requiring prior judicial approval for attorney subpoenas) with Baylson v. Disciplinary Bd., 975 F.2d 102, 104 (3d Cir. 1992) (holding that the rule may not be enforced against federal prosecutors in Pennsylvania). 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, 359-86 (1992) (discussing "the controversy arising out of the increased use of subpoenas to lawyers"); David A. Hoffman et al., Attorney Subpoenas and Massachusetts Rule PF 15, 74 MASS. L. REV. 95, 96-97 (1989) (identifying "the problem the attorney subpoena poses for the attorney-client relationship"); Max D. Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U. PA. L. REV. 1783, 1795-815 (1988) (discussing the judicial response to the increased use of attorney subpoenas); Robert N. Weiner, Federal Grand Jury Subpoenas to Attorneys: A Proposal for Reform, 23 AM. CRIM. L. REV. 95, 125-33 (1985) (proposing administrative action to protect the attorney-client relationship modeled after the regulations promulgated by the DOJ for subpoenas to journalists); Patricia A. Mellon, Comment, Attorneys' Subpoenas: The Constitutional, Ethical and Practical Issues, 60 TEMP. L.Q. 121 (1987) (concluding that "the threat attorneys' subpoenas pose to the attorney-client relationship mandates some restraint on the use of such subpoenas"). To a lesser extent, the DOJ has resisted application of ABA Model Rule 3.3(d), which requires lawyers in ex parte proceedings to 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." According to the accompanying commentary, this rule would apply in grand jury proceedings. It would therefore seem to require prosecutors, as an ethical matter, to disclose exculpatory evidence to the grand jury when seeking an indictment. In December 1993, the DOJ filed a civil lawsuit in Colorado, in part seeking to enjoin the application of that state's version of this rule. See United States v. Colorado Supreme Court Grievance Comm., 871 F. Supp. 1328, 1328 (D. Colo. 1994). The DOJ's legal challenge was subsequently dismissed on jurisdictional grounds. Id. at 1330.
71. See infra parts I.C, II.B.
72. See infra notes 126-131 and accompanying text.
73. See infra note 133 and accompanying text.
74. See infra part I.C.2.
75. See infra notes 145-146 and accompanying text.
76. See infra part II.B.1.
77. On December 1, 1995, Professor Coquillette presented a second report to the Committee on Rules of Practice and Procedure. See Daniel R. Coquillette, Study of Recent Federal Cases (1990-1995) Involving Rules of Attorney Conduct 1 (Dec. 1, 1995) (on file with author) [hereinafter Coquillette Study]. It reported the results of a study of published federal court decisions addressing the rules governing attorney conduct over a five-year period. See id. at 2-5. Professor Coquillette found that 46% of the disputes involving attorney conduct concerned conflict-of-interest rules, and that the remaining cases generally addressed only a handful of ethical rules, including principally the rules against communicating with represented parties, the advocate-witness disqualification rules, and rules dealing with attorneys' fees. See id. at 3-4. Sixteen categories of ethical rules were never once addressed in decisions published during the five-year period, and many other categories were rarely addressed. Id. at 4-5. Based on his study, Professor Coquillette presented an option that had not been included in his initial report: "adopting uniform national federal rules for attorney conduct only in certain key areas, and then stipulating that all other cases be governed by state standards." Id. at 5. Additionally, Professor Coquillette's report appended an earlier draft of this Article, see id. app. IV, and briefly described and discussed its proposal. See id. at 5-6. The study notes that, consistent with the proposal made in this Article, the Judicial Conference might adopt an independent set of detailed rules "in limited, narrow areas - rather than 'across the board.'" Id. at 6. In response to this Article's advocacy of a more comprehensive set of rules, however, the Coquillette Study notes that "[w]hether this would be seen as a benefit to the hundreds of thousands of American lawyers and law students who have had to learn at least two other model systems, is open to debate." Id. at 6 n*. This implicit criticism is taken up later in this Article. See infra part III.F. At the same time, Professor Coquillette notes, perhaps half-seriously, that "if this Committee recommends the entirely new federal 'rules of conduct for lawyers' proposed by Professor Green, this Reporter would eagerly seize his place in history by creating an entirely new draft code." Coquillette Study, supra, at 6 n*. The observation may overlook the process this Article proposes for developing federal rules of ethics - a process that certainly would make it difficult for any individual to claim credit for the final product. See infra part III.A. Coquillette's eagerness to carry the laboring oar also suggests, however, both that developing a new set of ethics rules would be far less laborious than some might fear and that at least one of the leading authorities on legal ethics would enthusiastically participate in the project.
78. As Professor Coquillette notes, uniform rules could be adopted pursuant to either a special act of Congress or the existing Rules Enabling Act, 18 U.S.C. §§ 2071-2077 (1994). Coquillette Report, supra note 13, at 38.
79. See, e.g., Geoffrey C. Hazard, Jr., Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure, 137 U. PA. L. REV. 2237, 2237 (1989) (concluding that the Federal Rules of Civil Procedure are "a major triumph of law reform");
80. Peter G. McCabe, Renewal of the Federal Rulemaking Process, 44 AM. U. L. REV. 1655, 1656 (1995) (citing authority describing the success of the Federal Rules of Civil Procedure). 35 See infra notes 285-288 and accompanying text.
81. See 5 U.S.C. § 301 (1994).
82. 28 C.F.R. § 45.735-1 (1989) ("[A]ttorneys employed by the Department [of Justice] should be guided in their conduct by the Code of Professional Responsibility of the American Bar Association."). This provision was not updated following the ABA's adoption of the Model Rules in 1983.
83. See, e.g., 28 C.F.R. § 50.2 (1989) (restricting communications with news media in pending cases); 28 C.F.R. § 50.10 (1989) (restricting issuance of subpoenas to members of the news media).
84. See, e.g., DEPARTMENT OF JUSTICE MANUAL § 9-2.161(a) (Supp. 1993) (regulating issuance of grand jury subpoenas to lawyers); id. § 9-7.302 (regulating monitoring of oral and wire communications); id. § 9-2.142 (regulating dual and successive prosecutions in state and federal court); id. § 9-11.153 (requiring warnings to grand jury witnesses).
85. See Communications with Represented Persons, 28 C.F.R. pt. 77 (1995).
86. MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-104 (1970). This rule was based on Canon 9 of the 1908 ABA Canons of Professional Ethics which provided in pertinent part: "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."
87. CANONS OF PROFESSIONAL ETHICS Canon 9 (1908). This provision in turn derived from a century-old principle.
88. See generally John Leubsdorf, Communicating with Another Lawyer's Client: The Lawyer's Veto and the Client's Interests, 127 U. PA. L. REV. 683, 684-85 (1979) (discussing the origins of DR 7-104).
89. See Massiah v. United States, 377 U.S. 201, 211 (1964) (White, J., dissenting) ("Lawyers are forbidden to interview the opposing party because of the supposed imbalance of legal skill and acumen between the lawyer and the party litigant . . . ."); In re Atwell, 115 S.W.2d 527, 528 (Mo. Ct. App. 1938) ("The rule is to prohibit lawyers from taking advantage of litigants who are represented by counsel.").
90. See Bruce A. Green, A Prosecutor's Communications with Represented Suspects and Defendants: What Are the Limits?, 24 CRIM. L. BULL. 283, 285 & n.7 (1988); see also United States v. Batchelor, 484 F. Supp. 812, 813 (E.D. Pa. 1980) (noting that the rule "insur[es] that laypersons not make decisions of major legal implication without the advice of counsel"); MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-18 ("The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer . . . ."); Laws. Man. on Prof. Conduct (ABA/BNA) 71:302 (June 22, 1988) ("The purpose of the restriction on communications with parties represented by counsel is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer.").
91. See Bruce A. Green, A Prosecutor's Communications with Represented Suspects and Defendants: What Are the Limits?, 24 CRIM. L. BULL. 283, 285 & n.7 (1988); see also United States v. Batchelor, 484 F. Supp. 812, 813 (E.D. Pa. 1980) (noting that the rule "insur[es] that laypersons not make decisions of major legal implication without the advice of counsel"); MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-18 ("The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer . . . ."); Laws. Man. on Prof. Conduct (ABA/BNA) 71:302 (June 22, 1988) ("The purpose of the restriction on communications with parties represented by counsel is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer.").
92. As amended in August 1995, Model Rule 4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.2 (1995).
93. See STEPHEN GILLERS & ROY D. SIMON, JR., REGULATION OF LAWYERS: STATUTES AND STANDARDS 270-72 (1996) (identifying selected state variations of Model Rule 4.2).
94. See supra note 13 and accompanying text.
95. See, e.g., Moran v. Burbine, 475 U.S. 412 (1986).
96. See Massiah v. United States, 377 U.S. 201, 206-07 (1964).
97. See Maine v. Moulton, 474 U.S. 159, 180 (1985).
98. See Patterson v. Illinois, 487 U.S. 285, 300 (1988).
99. See, e.g., United States v. Lemonakis, 485 F.2d 941, 954-56 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974); State v. Yatman, 320 So. 2d 401, 402-03 (Fla. Dist. Ct. App. 1975); State v. Cotton, 341 So. 2d 355, 359 (La. 1976); State v. Gilcrist, 531 P.2d 814, 816-17 (Wash. Ct. App. 1975); State v. Britton, 203 S.E.2d 462, 466-67 (W. Va. 1974).
100. See Green, supra note 43, at 285 & n.8.
101. For commentary addressing these interpretive issues and related issues concerning the no-contact rule's application to prosecutors, see Committee on Criminal Law, Establishing Ethical Standards for Federal Prosecutors and Defense Lawyers, 49 REC. ASS'N B. CITY N.Y. 21, 32-35 (1994) [hereinafter Establishing Ethical Standards]; Cramton & Udell, supra note 25; Green, supra note 43; F. Dennis Saylor & 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 (1992); William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903 (1993); H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 COLUM. L. REV. 1137 (1987); Neals-Erik Delker, Comment, Ethics and the Federal Prosecutor: The Continuing Conflict over the Application of Model Rule 4.2 to Federal Attorneys, 44 AM. U. L. REV. 855 (1995).
102. For commentary addressing these interpretive issues and related issues concerning the no-contact rule's application to prosecutors, see Committee on Criminal Law, Establishing Ethical Standards for Federal Prosecutors and Defense Lawyers, 49 REC. ASS'N B. CITY N.Y. 21, 32-35 (1994) [hereinafter Establishing Ethical Standards]; Cramton & Udell, supra note 25; Green, supra note 43; F. Dennis Saylor & 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 (1992); William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903 (1993); H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 COLUM. L. REV. 1137 (1987); Neals-Erik Delker, Comment, Ethics and the Federal Prosecutor: The Continuing Conflict over the Application of Model Rule 4.2 to Federal Attorneys, 44 AM. U. L. REV. 855 (1995).
103. For commentary addressing these interpretive issues and related issues concerning the no-contact rule's application to prosecutors, see Committee on Criminal Law, Establishing Ethical Standards for Federal Prosecutors and Defense Lawyers, 49 REC. ASS'N B. CITY N.Y. 21, 32-35 (1994) [hereinafter Establishing Ethical Standards]; Cramton & Udell, supra note 25; Green, supra note 43; F. Dennis Saylor & 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 (1992); William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903 (1993); H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 COLUM. L. REV. 1137 (1987); Neals-Erik Delker, Comment, Ethics and the Federal Prosecutor: The Continuing Conflict over the Application of Model Rule 4.2 to Federal Attorneys, 44 AM. U. L. REV. 855 (1995).
104. For commentary addressing these interpretive issues and related issues concerning the no-contact rule's application to prosecutors, see Committee on Criminal Law, Establishing Ethical Standards for Federal Prosecutors and Defense Lawyers, 49 REC. ASS'N B. CITY N.Y. 21, 32-35 (1994) [hereinafter Establishing Ethical Standards]; Cramton & Udell, supra note 25; Green, supra note 43; F. Dennis Saylor & 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 (1992); William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903 (1993); H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 COLUM. L. REV. 1137 (1987); Neals-Erik Delker, Comment, Ethics and the Federal Prosecutor: The Continuing Conflict over the Application of Model Rule 4.2 to Federal Attorneys, 44 AM. U. L. REV. 855 (1995).
105. For commentary addressing these interpretive issues and related issues concerning the no-contact rule's application to prosecutors, see Committee on Criminal Law, Establishing Ethical Standards for Federal Prosecutors and Defense Lawyers, 49 REC. ASS'N B. CITY N.Y. 21, 32-35 (1994) [hereinafter Establishing Ethical Standards]; Cramton & Udell, supra note 25; Green, supra note 43; F. Dennis Saylor & 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 (1992); William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903 (1993); H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 COLUM. L. REV. 1137 (1987); Neals-Erik Delker, Comment, Ethics and the Federal Prosecutor: The Continuing Conflict over the Application of Model Rule 4.2 to Federal Attorneys, 44 AM. U. L. REV. 855 (1995).
106. For commentary addressing these interpretive issues and related issues concerning the no-contact rule's application to prosecutors, see Committee on Criminal Law, Establishing Ethical Standards for Federal Prosecutors and Defense Lawyers, 49 REC. ASS'N B. CITY N.Y. 21, 32-35 (1994) [hereinafter Establishing Ethical Standards]; Cramton & Udell, supra note 25; Green, supra note 43; F. Dennis Saylor & 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 (1992); William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903 (1993); H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 COLUM. L. REV. 1137 (1987); Neals-Erik Delker, Comment, Ethics and the Federal Prosecutor: The Continuing Conflict over the Application of Model Rule 4.2 to Federal Attorneys, 44 AM. U. L. REV. 855 (1995).
107. For commentary addressing these interpretive issues and related issues concerning the no-contact rule's application to prosecutors, see Committee on Criminal Law, Establishing Ethical Standards for Federal Prosecutors and Defense Lawyers, 49 REC. ASS'N B. CITY N.Y. 21, 32-35 (1994) [hereinafter Establishing Ethical Standards]; Cramton & Udell, supra note 25; Green, supra note 43; F. Dennis Saylor & 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 (1992); William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903 (1993); H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 COLUM. L. REV. 1137 (1987); Neals-Erik Delker, Comment, Ethics and the Federal Prosecutor: The Continuing Conflict over the Application of Model Rule 4.2 to Federal Attorneys, 44 AM. U. L. REV. 855 (1995).
108. See Ethical Restraints of the ABA Code of Professional Responsibility on Fed. Criminal Investigations, 4 Op. Off. Legal Counsel 576 (1980).
109. See, e.g., United States v. Ryans, 903 F.2d 731, 739-40 (10th Cir.), cert. denied, 498 U.S. 855 (1990); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983); United States v. Partin, 601 F.2d 1000, 1005-06 (9th Cir. 1979), cert. denied, 446 U.S. 964 (1980).
110. 858 F.2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990).
111. United States v. Hammad, 846 F.2d 854 (2d Cir.), modified, 858 F.2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990).
112. See Hammad, 858 F.2d at 839. No decision since Hammad has found that the no-contact rule was violated because the government employed an improper investigative technique. As one district judge recently observed, "[i]n practice, . . . the broad exceptions to the rule noted in Hammad may operate to swallow the Rule itself except in perhaps the most egregious instances of misconduct." United States v. Ward, 895 F. Supp. 1000, 1005 (N.D. Ill. 1995).
113. See Hammad, 858 F.2d at 842.
114. See id. at 839; United States v. Lopez, 765 F. Supp. 1433, 1452 (N.D. Cal. 1991) (prosecutor misled federal magistrate in seeking authorization to speak with represented defendant), vacated, 989 F.2d 1032 (9th Cir.), amended, 4 F.3d 1455 (9th Cir. 1993).
115. See, e.g., In re Brey, 490 N.W.2d 15 (Wis. 1992).
116. Disciplinary proceedings were brought against federal prosecutors on rare occasion, however. See United States v. Ferrara, 54 F.3d 825 (D.C. Cir. 1995); Kolibash v. Committee on Legal Ethics, 872 F.2d 571 (4th Cir. 1989); In re John Doe, 801 F. Supp. 478 (D.N.M. 1992).
117. Memorandum from Dick Thornburgh, United States Attorney General, to United States Attorneys 9 (June 8, 1989) (on file with author) [hereinafter Thornburgh Memorandum].
118. Id.
119. Id. at 3.
120. See, e.g., Jerry E. Norton, Ethics and the Attorney General, 74 JUDICATURE 203, 207 (1991);
121. ABA Adds Two Model Rules on Subpoenas, Practice Sales, 6 Laws. Man. on Prof. Conduct (ABA/BNA) 25, 27 (Feb. 28, 1990) (opposing "any attempt by the Department of Justice unilaterally to exempt its lawyers from the professional conduct rules that apply to all lawyers under applicable rules of the jurisdictions in which they practice.").
122. See, e.g., Norton, supra note 66, at 207 (asserting that the Thornburgh Memorandum portends "that state codes of professional conduct will simply not apply to attorneys who have as their client the federal government"); William Glaberson, Thornburgh Policy Leads to a Sharp Ethics Battle, N.Y. TIMES, March 1, 1991, at B4 (reporting that defense lawyers perceived "that the department was using the memorandum to give prosecutors a wink of ecouragement [sic] to ignore the rules of ethics when the rules got in the way of obtaining a conviction"); Tom Watson, AG Decrees Prosecutors May Bypass Counsel, LEGAL TIMES, Sept. 25, 1989, at 1, 29 (reporting that Neil Sonnett, President of the National Association of Criminal Defense Lawyers, described the memorandum as "a green light to ignore the Code of Professional Responsibility"); see also Cramton & Udell, supra note 25, at 321-22 (describing private bar's objections to, Thornburgh Memorandum).
123. See, e.g., Norton, supra note 66, at 207 (asserting that the Thornburgh Memorandum portends "that state codes of professional conduct will simply not apply to attorneys who have as their client the federal government"); William Glaberson, Thornburgh Policy Leads to a Sharp Ethics Battle, N.Y. TIMES, March 1, 1991, at B4 (reporting that defense lawyers perceived "that the department was using the memorandum to give prosecutors a wink of ecouragement [sic] to ignore the rules of ethics when the rules got in the way of obtaining a conviction"); Tom Watson, AG Decrees Prosecutors May Bypass Counsel, LEGAL TIMES, Sept. 25, 1989, at 1, 29 (reporting that Neil Sonnett, President of the National Association of Criminal Defense Lawyers, described the memorandum as "a green light to ignore the Code of Professional Responsibility"); see also Cramton & Udell, supra note 25, at 321-22 (describing private bar's objections to, Thornburgh Memorandum).
124. See, e.g., Norton, supra note 66, at 207 (asserting that the Thornburgh Memorandum portends "that state codes of professional conduct will simply not apply to attorneys who have as their client the federal government"); William Glaberson, Thornburgh Policy Leads to a Sharp Ethics Battle, N.Y. TIMES, March 1, 1991, at B4 (reporting that defense lawyers perceived "that the department was using the memorandum to give prosecutors a wink of ecouragement [sic] to ignore the rules of ethics when the rules got in the way of obtaining a conviction"); Tom Watson, AG Decrees Prosecutors May Bypass Counsel, LEGAL TIMES, Sept. 25, 1989, at 1, 29 (reporting that Neil Sonnett, President of the National Association of Criminal Defense Lawyers, described the memorandum as "a green light to ignore the Code of Professional Responsibility"); see also Cramton & Udell, supra note 25, at 321-22 (describing private bar's objections to, Thornburgh Memorandum).
125. See, e.g., Norton, supra note 66, at 207 (asserting that the Thornburgh Memorandum portends "that state codes of professional conduct will simply not apply to attorneys who have as their client the federal government"); William Glaberson, Thornburgh Policy Leads to a Sharp Ethics Battle, N.Y. TIMES, March 1, 1991, at B4 (reporting that defense lawyers perceived "that the department was using the memorandum to give prosecutors a wink of ecouragement [sic] to ignore the rules of ethics when the rules got in the way of obtaining a conviction"); Tom Watson, AG Decrees Prosecutors May Bypass Counsel, LEGAL TIMES, Sept. 25, 1989, at 1, 29 (reporting that Neil Sonnett, President of the National Association of Criminal Defense Lawyers, described the memorandum as "a green light to ignore the Code of Professional Responsibility"); see also Cramton & Udell, supra note 25, at 321-22 (describing private bar's objections to, Thornburgh Memorandum).
126. In the Second Circuit, for example, decisions stated that the rule applied both "to government attorneys . . . [and] to non-attorney government law enforcement officers when they act as the alter ego of government prosecutors," United States v. Jamil, 707 F.2d 638, 645 (2d Cir. 1983) (citations omitted); that the rule generally applied to criminal investigations, United States v. Hammad, 858 F.2d 834, 838-39 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990); that the rule excepts communications that are "authorized by law," which includes "legitimate investigative techniques in conducting or supervising criminal investigations," id. at 839; and that "the use of informants to gather evidence against a suspect" prior to indictment "will frequently fall within the ambit of such authorization." Id. These pronouncements left open a variety of questions. For example, when is a federal investigator an "alter ego" of the prosecutor? Are post-arrest and post-indictment investigative techniques also within the "authorized by law" exception? Which investigative techniques are illegitimate? When is the use of informants outside the "authorized by law" exception? See Establishing Ethical Standards, supra note 53, at 34 ("Lacking a 'bright-line' rule, defense lawyers and courts have focused on various aspects of the Hammad opinion in challenging and evaluating the propriety of the prosecutor's conduct." (discussing United States v. Santopiero, 809 F. Supp. 1008 (D. Conn. 1992) and United States v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989))).
127. See, e.g., United States v. Heinz, 983 F.2d 609, 615 n.2 (5th Cir. 1993) (Parker, J., concurring in part and dissenting in part); United States v. Scozzafava, 833 F. Supp. 203, 208 (W.D.N.Y. 1993), aff'd, 60 F.3d 810 (2d Cir. 1995).
128. See, e.g., United States v. Ferrara, 847 F. Supp. 964, 968-69 (D.D.C. 1993), aff'd, 54 F.3d 825 (D.C. Cir. 1995); United States v. Lopez, 765 F. Supp. 1433, 1445-50 (N.D. Cal. 1991), vacated, 989 F.2d 1032 (9th Cir.), amended, 4 F.3d 1455 (9th Cir. 1993); United States v. Abreu, 747 F. Supp. 493, 500 (N.D. Ind. 1990).
129. The petard was a medieval weapon which, by the use of explosives, was designed to blast open the heavy doors of an enemy's fortress, but which had an unfortunate tendency to misfire, causing its engineer, in Shakespeare's phrase, to be "hoist with his own petar." WILLIAM SHAKESPEARE, HAMLET act 3, sc. 4, line 208 (T.J.B. Spencer ed., 1980).
130. In re John Doe, 801 F. Supp. 478, 480 (D.N.M. 1992).
131. Cf. United States v. Klubock, 639 F. Supp. 117, 125-26 (D. Mass. 1986) (holding that state authority to regulate the legal profession by enforcing its rules of professional conduct extends to the regulation of federal prosecutors, except insofar as state rules actually conflict with federal law), aff'd, 832 F.2d 649 (1st Cir.), aff'd on reh'g, 832 F.2d 664 (1st Cir. 1987).
132. See Cramton & Udell, supra note 25, at 354 ("[B]ecause many federal courts adopt state ethics rules as local court rules, giving them the force of federal law, the Supremacy Clause is not greatly implicated in these conflicts.").
133. See Whitehouse v. United States Dist. Court, 53 F.3d 1349, 1365 (1st Cir. 1995); Cramton & Udell, supra note 25, at 297, 384-86 (addressing separation-of-powers issue in context of federal court rule restricting prosecutors from issuing subpoenas to lawyers). The DOJ continues to mischaracterize the issue of regulation of federal prosecutors principally as a question of the applicability of state rules of professional conduct. Thus, in defending proposed federal legislation that would explicitly authorize the DOJ to adopt preemptive rules governing its lawyers' conduct, the Deputy Attorney General recently argued: "The attorney general cannot permit an individual state court rule to override the ethical and law enforcement responsibilities of a prosecutor acting under the authority of the federal government to enforce federal law." Jamie S. Gorelick, Within the Law, WASH. POST, May 21, 1995, at C7. 76 An ancillary question was whether state disciplinary authorities had authority to sanction federal prosecutors licensed by the state for violating DR 7-104 as applied and interpreted by the federal district court in which the prosecutor practiced. Until now, courts have found that state authorities may discipline federal government lawyers for misconduct in federal court proceedings. See, e.g., Kolibash v. Committee on Legal Ethics, 872 F.2d 571, 576 (4th Cir. 1989) (ruling that state bar disciplinary proceeding may be removed to federal court); Waters v. Barr, 747 P.2d 900, 902 (Nev. 1987) (holding that state supreme court had authority to discipline Assistant United States Attorneys).
134. See Whitehouse v. United States Dist. Court, 53 F.3d 1349, 1365 (1st Cir. 1995); Cramton & Udell, supra note 25, at 297, 384-86 (addressing separation-of-powers issue in context of federal court rule restricting prosecutors from issuing subpoenas to lawyers). The DOJ continues to mischaracterize the issue of regulation of federal prosecutors principally as a question of the applicability of state rules of professional conduct. Thus, in defending proposed federal legislation that would explicitly authorize the DOJ to adopt preemptive rules governing its lawyers' conduct, the Deputy Attorney General recently argued: "The attorney general cannot permit an individual state court rule to override the ethical and law enforcement responsibilities of a prosecutor acting under the authority of the federal government to enforce federal law." Jamie S. Gorelick, Within the Law, WASH. POST, May 21, 1995, at C7. 76 An ancillary question was whether state disciplinary authorities had authority to sanction federal prosecutors licensed by the state for violating DR 7-104 as applied and interpreted by the federal district court in which the prosecutor practiced. Until now, courts have found that state authorities may discipline federal government lawyers for misconduct in federal court proceedings. See, e.g., Kolibash v. Committee on Legal Ethics, 872 F.2d 571, 576 (4th Cir. 1989) (ruling that state bar disciplinary proceeding may be removed to federal court); Waters v. Barr, 747 P.2d 900, 902 (Nev. 1987) (holding that state supreme court had authority to discipline Assistant United States Attorneys).
135. See, e.g., United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir. 1983) (holding that use of informant to talk with defendant after he retained counsel but before he was formally charged did not violate his Fifth or Sixth Amendment rights to counsel or the ABA Model Rules); United States v. Guerrerio, 675 F. Supp. 1430, 1436-37 (S.D.N.Y. 1987) (holding that prosecuting attorney's alleged violation of rule prohibiting direct communication by an attorney with party he knows to be represented by counsel did not mandate suppression of suspect's recorded statement).
136. For example, in United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991), vacated, 989 F.2d 1032 (9th Cir.), amended, 4 F.3d 1455 (9th Cir. 1993), the defendant initiated communications with the prosecution, whereupon the Assistant United States Attorney obtained a federal magistrate's permission to speak with the defendant in defense counsel's absence. Rather than simply defending his conduct on the ground that it comported with DR 7-104, the prosecutor invoked the Thornburgh Memorandum as a principal justification. The district court excoriated him for doing so, characterizing the memorandum as "nothing less than a frontal assault on the legitimate powers of the court." Id. at 1461. Moreover, the court construed the prosecutor's conduct in seeking the magistrate's permission far more harshly than it need have done, finding, on the basis of a fairly ambiguous record, that the prosecutor had misled the magistrate about why the defendant was disinclined to include the defense attorney in discussions with the prosecutor. On appeal, the United States Court of Appeals for the Ninth Circuit initially determined that this finding of fact was not clearly erroneous, United States v. Lopez, 989 F.2d 1032, 1040 (9th Cir.), amended, 4 F.3d 1455 (9th Cir. 1993), although it reversed the district court's order dismissing the indictment, concluding that the remedy was inappropriate. Id. at 1042. At the government's urging, the court of appeals subsequently revised its opinion to observe that, although the magistrate judge apparently did not have a full understanding of the facts surrounding Lopez's request, the district court's "finding that [the prosecutor] materially misled the magistrate judge . . . is not sustainable without resolving certain conflicts in the testimony . . . as to what [the prosecutor] knew and when he knew it." 4 F.3d at 1462.
137. Communications with Represented Persons, 57 Fed. Reg. 54, 737 (1992) (to be codified at 28 C.F.R. pt. 77) (proposed Nov. 20, 1992) [hereinafter Communications with Represented Persons (1992)].
138. See id. at 54,741.
139. See id. at 54,740-41.
140. Id. at 54,737; see Jamie S. Gorelick & Geoffrey M. Klineberg, Justice Department Contacts with Represented Persons: A Sensible Solution, 78 JUDICATURE 136, 142-43 (1994).
141. Communications with Represented Persons (1992), supra note 79, at 54,740.
142. Id.
143. The regulation would have codified restrictions contained in the case law. For example, it would have provided that, once the defendant's Sixth Amendment right to counsel attached, prosecutors "may not deliberately elicit incriminating information from the represented person concerning the pending criminal charges." Id. at 54,743. This restriction is already imposed by decisions applying the right to counsel to police interrogation. See, e.g., Massiah v. United States, 377 U.S. 201, 206 (1964) (holding that "petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel"). Similarly, at that stage of proceedings, the regulation would have imposed restrictions on undercover agents' and informants' presence at meetings between the defendant and the defense lawyer. See Communications with Represented Persons (1992), supra note 79, at 54,743. Similar limits have been recognized in Supreme Court and lower court decisions dealing with the socalled "spy in the enemy camp." See, e.g., Weatherford v. Bursey, 429 U.S. 545, 557-58 (1977) (holding that undercover agent's presence at a meeting between defendant and defendant's counsel was not a violation of the defendant's Sixth Amendment rights as long as agent did not communicate the substance of the conversation); United States v. Melvin, 650 F.2d 641, 644 (5th Cir. 1981) (finding dismissal of indictment inappropriate when defendant had failed to show any prejudice resulting from undercover agents' presence at a meeting between himself and his counsel); United States v. Levy, 577 F.2d 200, 208 (3d Cir. 1978) (reversing conviction because informant's revelation of defense strategy to prosecuting attorneys was violative of defendant's Sixth Amendment rights).
144. Communications with Represented Persons (1992), supra note 79, at 54,742.
145. See id.
146. Id.
147. See Communications with Represented Persons, 58 Fed. Reg. 39,976, 39,982 (1993) (to be codified at 28 C.F.R. pt. 77) (proposed July 26, 1993) [hereinafter Communications with Represented Persons (1993)].
148. See id. at 39,976-77.
149. See id. at 39,976-91 (addressing comments).
150. See Communications with Represented Persons, 59 Fed. Reg. 10,086 (1994)
151. See id. at 10,088-89.
152. See id. at 10,101.
153. See id. at 10,100.
154. See id. at 10,097-99. The planned provisions, as well as the proposed regulation, governed all DOJ attorneys engaged in criminal and civil law enforcement, not just prosecutors. See id. at 10,097. That is equally true of the regulation as ultimately promulgated. See Communications with Represented Persons (Final Rule), supra note 23. This Article focuses, however, on these provisions insofar as they affect federal prosecutors and, therefore, for convenience, refers to federal prosecutors in contexts where other DOJ lawyers might also have been included.
155. See, e.g., Chesnoff v. United States (In re Grand Jury Proceedings), 13 F.3d 1293, 1296 (9th Cir. 1994) (holding that grand jury witness lacked standing to assert a violation of an internal government guideline regulating subpoenas issued to attorneys because DOJ Guidelines do not establish rights in civil or criminal matters but merely assist the United States Attorney's Office in its internal operations).
156. See Communications with Represented Persons (Final Rule), supra note 23.
157. See id. at 39,910.
158. See DEPARTMENT OF JUSTICE MANUAL §§ 9-13.200 to -13.260B (Supp. 1993).
159. Communications with Represented Persons, 28 C.F.R. pt. 77 (1995).
160. See id. § 77.2
161. See id. § 77.12.
162. See infra notes 111-117 and accompanying text.
163. See 28 C.F.R. § 77.11(a) (1995).
164. See id.
165. See id. §§ 77.3, 77.7. The regulation is intended in part to supersede the Second Circuit's ruling in Hammad that covert communications with represented individuals are improper when illegitimate investigative techniques are employed. See supra note 59 and accompanying text. Whether the regulation must be read to do so, however, is unclear. The court would be free to hold that, whether or not an individual is represented, the use of a sham subpoena to obtain statements from that individual is improper. Cf. People v. Auld, 815 P.2d 956, 959 (Colo. Ct. App. 1991) (holding that dismissal of the case is an appropriate remedy when the district attorney perpetrates a fraud upon the court), cert. denied, 502 U.S. 1092 (1992). But see United States v. Martino, 825 F.2d 754, 762 (3d Cir. 1987) (upholding use of sham subpoena).
166. 28 C.F.R. §§ 77.6(c), 77.8 (1995).
167. See id. § 77.3.
168. Id. § 77.5.
169. Id. § 77.6(e).
170. See, e.g., People v. Sharp, 197 Cal. Rptr. 436, 438-39 (Cal. Ct. App. 1983); In re Burrows, 629 P.2d 820, 825 (Or. 1981) (en banc); California State Bar Comm. on Professional Ethics, Formal Op. 1979-49 (1979), reprinted in 55 CAL. ST. B.J. 263, 263 (1980); Oregon State Bar Legal Ethics Comm., Formal Op. 484 (1983).
171. The regulation prohibits "any communication that is prohibited by the Sixth Amendment right to counsel." 28 C.F.R. § 77.4 (1995). The impact of this restriction, however, is far from clear. For example, the Supreme Court has not construed the Sixth Amendment right to counsel to prohibit the prosecutor from deliberately eliciting statements from an indicted defendant in defense counsel's absence. It has simply barred the admission of the statements in evidence on the then-pending charges. See Maine v. Moulton, 474 U.S. 159, 180 (1985). The final rule does not contain the explicit restriction included in the original proposal that would have required the prosecutor to avoid "deliberately elicit[ing] incriminating information from the represented person concerning the pending criminal charges." Communications with Represented Persons (1992), supra note 79, at 54,743. The supplementary information accompanying the final rule suggests that the omission was deliberate, and that prosecutors are now authorized to elicit from represented defendants incriminating statements about pending criminal charges as long as the prosecutor's subjective motivation is to investigate other, uncharged offenses. See Communications with Represented Persons (Final Rule), supra note 23, at 39,922.
172. See Green, supra note 43, at 320. Often an individual contacted by a prosecutor or her agents is led to believe that it is in his interest to cooperate with law enforcement authorities. Prosecutors and agents typically make comments to reinforce this belief. When prosecutors or their agents contact an indicted defendant in defense counsel's absence, they are likely to create the erroneous impression that it is in the defendant's interest to cooperate in order to receive a benefit with respect to the pending charges and, furthermore, that it would be against the defendant's interest to include defense counsel in the conversation. As a consequence, the defendant may make incriminating statements in the erroneous belief that the prosecutor will dismiss the pending charges or provide some other form of leniency in reward for his cooperation.
173. See id. at 318-20 & 320 n.120.
174. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-396 (1995) [hereinafter ABA Op. 95-396].
175. The opinion expresses the view that: (1) the no-contact rule applies in criminal as well as civil matters, see id. at 5-6; (2) the rule applies to communications with anyone known to be represented by counsel in connection with the matter to be discussed, not only with formal "parties," see id. at 6-9; (3) although some courts have held the rule inapplicable to criminal investigations prior to arrest or indictment, these readings of the rule are unsound, see id. at 9-12; and (4) a lawyer is responsible for the activities of an investigator acting under his or her direction. See id. at 19-21.
176. See, e.g., Samuel Dash, An Alarming Assertion of Power, 78 JUDICATURE 137 (1994).
177. See S. 3, supra note 24 and accompanying text. Questions have been raised about the appropriateness of the proposed legislation. See, e.g., Gerald H. Goldstein, Government Lawyers: Above the Law?, WASH. POST, May 2, 1995, at A19.
178. But see Gorelick, supra note 75;
179. William G. Otis, Prosecutors on Trial, WASH. POST, May 30, 1995, at A13.
180. DR 7-104 and equivalent ethical rules, as adopted in most jurisdictions, permit otherwise improper communications that are "authorized by law." The government argues that con duct comporting with the regulation falls within the "authorized by law" exception. See Communications with Represented Persons (1993), supra note 89, at 39,978. One problem the government faces is that this exception is not included in the no-contact rule applied in some districts. See Id. Another problem is that a federal regulation is not necessarily the type of "law" to which the ethical rule is intended to defer. See Utah State Bar Ethics Advisory Opinion Comm., Op. 95-05 (1996) (noting that it is unclear whether the DOJ regulation constitutes "law" authorizing otherwise impermissible communications under Model Rule 4.2). A recent ABA opinion takes the view that the regulation would fall within this exception only if the regulation had "been properly promulgated pursuant to statutory authority that contemplates regulation of the character in question." ABA Op. 95-396, supra note 116, at 22. Although the opinion retreats from deciding whether the regulation meets this test, id. at 23 n.65, Lawrence J. Fox's separate concurrence flatly states the view that the DOJ's "regulations are clearly not authorized by law" because "[t]here is no Congressional grant of authority to the Justice Department to issue regulations undermining the fundamental rights of clients to be represented by counsel." Id. at 24 (concurring opinion). In United States v. Florida Cities Water Co., 41 Env't Rep. Cas. (BNA) 1541 (M.D. Fla. 1995), an environmental enforcement proceeding initiated by the DOJ, the defendant raised some of these questions, but the district court avoided resolving them. See id. at 1543. The court endorsed the magistrate judge's order requiring that before the government attempted to interview potential witnesses, it must give the defendant reasonable advanced notice. See id. This would allow the defendant's counsel, in the case of a represented witness, to alert the witness's counsel and, in the case of an unrepresented witness, to discuss the matter with the witness and to advise the witness that he or she may be subject to criminal prosecution. Because the court's order did not flatly prohibit the government from interviewing the defendant's present or former employees, but merely required advanced notice before government lawyers attempted such interviews, the applicability of the DOJ regulation was not directly called into question.
181. Decisions such as Hammad and Lopez suggest that, until now, federal courts have taken it as a given that their authority to regulate the professional conduct of lawyers justifies applying the no-contact rule to federal prosecutors, at least in the absence of conflicting federal law. In response to suggestions that it lacks authority to supersede ethical rules adopted by the federal court, however, the DOJ has argued, among other things, that federal courts' "supervisory power may not be used as a means of prescribing standards of prosecutorial conduct for out-of-court activities" such as criminal investigations that otherwise "do not violate clear constitutional or statutory norms." Communications with Represented Persons (1993), supra note 89, at 39,981. The DOJ's distinction between in-court and out-of-court conduct is apparently premised on the assumption that courts' inherent authority may be justified only by the interest in protecting the integrity of judicial proceedings. This cramped construction of judicial authority defies the contemporary practice and understanding. Courts routinely assume responsibility to set standards governing the setting of attorneys' fees and other out-of-court relations between lawyers and their clients or third parties. See Jenkins v. McCoy, 882 F. Supp. 549, 553 (S.D.W. Va. 1995) (citing authorities).
182. There is little helpful precedent addressing the separation-of-powers question that would be raised by a conflict between an ethical rule properly adopted by the courts and a regulation properly promulgated by the executive. A third constitutional question would be raised in a case in which a federal prosecutor violated the regulation itself. As noted earlier, the regulation not only redraws the lines, but also leaves it to the Attorney General to call the lines. See supra note 106 and accompanying text. Unless the Attorney General finds a violation of the regulation, and further finds that the violation was willful, the prosecutor may not be personally sanctioned by a state or federal disciplinary body. 28 C.F.R. § 77.12 (1995). This provision challenges the authority of courts to discipline attorneys who are federal prosecutors for violating law that unquestionably applies to them, namely, the DOJ's own regulation.
183. See, e.g., Communications with Represented Persons (Final Rule), supra note 23, at 39,913 ("[T]his rule is not designed to diminish the ethical responsibilities of government attorneys; it is intended to clarify those responsibilities.").
184. Id. at 39,924-25; see also id. at 39,911 ("this regulation attempts to reconcile the purposes underlying DR 7-104 and Model Rule 4.2 with effective law enforcement").
185. An earlier article suggested that the propriety of a prosecutor's communications with represented parties should be determined in the light of a balancing of the "legitimate interests that weigh in favor of or against the application of the rule." Green, supra note 43, at 315; see also Green, supra note 6, at 534-42 (arguing that ambiguous ethical rules should be interpreted to promote sound policy, not to promote their drafters' apparent intent). When prosecutors or their agents communicate directly with a represented suspect or defendant, rather than communicating through defense counsel, several important interests protected by DR 7-104(A)(1) may be jeopardized, including, primarily, the interest in protecting the client from overreaching and the interest in assuring the client effective representation of counsel. On the other hand, direct communications with the client may promote legitimate law enforcement interests, including, among others, the interest in developing reliable evidence for use at trial and the interest in preventing future crimes. See Green, supra note 43, at 318-19. The point of the article was that courts should balance these countervailing interests when deciding how to apply DR 7104(A)(1) to criminal investigations and prosecutions - a question not specifically contemplated by those who drafted the rule.
186. An earlier article suggested that the propriety of a prosecutor's communications with represented parties should be determined in the light of a balancing of the "legitimate interests that weigh in favor of or against the application of the rule." Green, supra note 43, at 315; see also Green, supra note 6, at 534-42 (arguing that ambiguous ethical rules should be interpreted to promote sound policy, not to promote their drafters' apparent intent). When prosecutors or their agents communicate directly with a represented suspect or defendant, rather than communicating through defense counsel, several important interests protected by DR 7-104(A)(1) may be jeopardized, including, primarily, the interest in protecting the client from overreaching and the interest in assuring the client effective representation of counsel. On the other hand, direct communications with the client may promote legitimate law enforcement interests, including, among others, the interest in developing reliable evidence for use at trial and the interest in preventing future crimes. See Green, supra note 43, at 318-19. The point of the article was that courts should balance these countervailing interests when deciding how to apply DR 7104(A)(1) to criminal investigations and prosecutions - a question not specifically contemplated by those who drafted the rule.
187. See Communications with Represented Persons (Final Rule), supra note 23, at 39,912-13 (receiving 20 comments in response to the initial proposal, 219 comments in response to the second publication of that proposal, and 31 comments in response to the third and substantially revised proposal).
188. Communications with Represented Persons (1994), supra note 92, at 10,088-89 (receiving 219 written comments in response to second publication of proposal of which 159 were from DOJ employees).
189. See, e.g., Communications with Represented Persons (Final Rule), supra note 23; Communications with Represented Persons (1994), supra note 92; Communications with Represented Persons (1993), supra note 89.
190. See, e.g., Communications with Represented Persons (Final Rule), supra note 23, at 39,913-17 (addressing criticisms of third proposal relating to the need for the rule and the DOJ's authority to adopt it); Communications with Represented Persons (1993), supra note 89, at 39,976-82 (reviewing general comments received in response to first version).
191. See, e.g., Communications with Represented Persons (1994), supra note 92, at 10,089-96 (addressing comments relating to provisions of second proposal and describing revisions); Communications with Represented Persons (1993), supra note 89, at 39,982-91.
192. See, e.g., Communications with Represented Persons (Final Rule), supra note 23, at 39,918 (expanding definition of "attorney for the government" in final rule in response to criticism from DOJ components); id. at 39,919 (rejecting criticism of rule's distinction between a represented "party" and a represented "person"); id. at 39,920 (clarifying, "[i]n response to one comment, . . . that representation is presumed to cease to be current for purposes of these rules when the matter in question has reached a final judgment . . . unless there is reason to believe that representation is continuing"); id. at 39,922 (responding to a comment from a United States Attorneys' Office, final rule was changed to clarify that, for purpose of exception permitting communications with arrested defendants who waive their right to counsel, "the usual Miranda warnings and waiver suffice"); id. at 39,922-23 (agreeing with individuals' comments that the range of contacts allowed during investigations was broader than necessary to meet the DOJ's legitimate needs, but indicating that the DOJ would address this concern through changes to the Department of Justice Manual, rather than the rule itself).
193. For the most part, federal district courts have adopted local rules that incorporate either the standard of the state in which the court sits, an ABA model, or both. See supra note 13. There is no indication that, in the course of doing so, district courts gave attention to the wording or substance of particular rules. See Green, supra note 6, at 533-34, 547 (noting when district court judges of Connecticut adopted the ABA Model Code they "did not discuss the particular provisions or even think about them").
194. See text accompanying note 102.
195. Communications with Represented Persons (1993), supra note 89, at 39,979.
196. A related question concerns the enforcement of the regulation. As noted earlier, the regulation precludes courts from sanctioning government lawyers for communicating with represented persons in violation of the regulation unless the DOJ first determines that a willful violation occurred. See supra notes 105-106 and accompanying text. One might question whether the DOJ is the appropriate agency for deciding whether a lawyer within the DOJ has violated the regulation and, if so, whether sanctions should be imposed. See Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 ST. THOMAS L. REV. 69 (1995).
197. See supra note 25 (citing authorities addressing ABA Model Rule 3.8(f), which restricts this conduct).
198. See, e.g., ABA Op. 95-396, supra note 116, at 24 ("To ever permit a litigant (particularly one as powerful and capable of threatening represented parties as the Justice Department) to decide what rules will govern its own lawyers unbalances the judicial process in a fundamental, unfortunate and inequitable way.") The DOJ might answer that its lawyers routinely exercise objective judgment outside the trial context. For example, individual prosecutors exercise objectivity in deciding whom to investigate and what charges to bring. While taking into consideration issues of fairness to the accused and proportionality, prosecutors also take into account the government's own interests in preserving resources, in gathering evidence to be used against others, in deterring future crimes by the particular defendant and other defendants, and the like. There is no reason to believe, however, that prosecutors weigh the respective considerations objectively, that is to say, in essentially the same way that a neutral and detached officer would. Nor is there any requirement that they do so. The DOJ might also argue that as an entity it is practiced in exercising objectivity in the adoption of standards that restrain the conduct of its lawyers. But this answer confuses self-restraint with objectivity. Provisions of the Department of Justice Manual that guide or limit the discretion of federal prosecutors are often a product of self-interest. For example, the provision on the issuance of subpoenas to attorneys, DEPARTMENT OF JUSTICE MANUAL § 9-2.161(a) (Supp. 1993), was largely designed to deflect criticism of this practice and to discourage courts from adopting more onerous restraints such as those urged by the ABA. See Green, supra note 135, at 76.
199. Cf. Floyd Abrams, Why Lawyers Lie, N.Y. TIMES MAG., Oct. 9, 1994, at 54 ("Public statements of prosecutors and defense counsel alike must be viewed with the greatest of scepticism.").
200. See Establishing Ethical Standards, supra note 53, at 44-45. In the absence of judicial involvement, another preferable alternative would be to seek consensus among those with various perspectives. A Conference recently hosted at Fordham Law School proceeded on this understanding: The co-sponsors of this Conference shared the view that the best way to achieve satisfactory resolutions of ethical issues is through open discourse among individuals with varied perspectives, and that shared view explains the Conference's structure. The co-sponsors took as a given that no single group could claim to have all the right answers to the difficult questions of professional responsibility confronting lawyers for older clients. The fact that individual groups tend to be defined by a similarity of interest or experience among their members would make any one group particularly hesitant to make such a claim. In looking for answers to the hard questions facing lawyers [who represent older clients], it is critical to consider the widest variety of perspectives - to seek the views of lawyers who represent older clients, lawyers who practice in other areas, non-lawyer representatives of older persons, academics, health-care professionals, and others with valuable insights. That is why this Conference was co-sponsored by six groups representing varying perspectives, and why the co-sponsors sought to bring together thoughtful individuals with a variety of backgrounds and experiences. Bruce A. Green & Nancy Coleman, Foreword, Ethical Issues in Representing Older Clients, 62 FORDHAM L. REV. 961, 970-71 (1994).
201. See Establishing Ethical Standards, supra note 53, at 44-45. In the absence of judicial involvement, another preferable alternative would be to seek consensus among those with various perspectives. A Conference recently hosted at Fordham Law School proceeded on this understanding: The co-sponsors of this Conference shared the view that the best way to achieve satisfactory resolutions of ethical issues is through open discourse among individuals with varied perspectives, and that shared view explains the Conference's structure. The co-sponsors took as a given that no single group could claim to have all the right answers to the difficult questions of professional responsibility confronting lawyers for older clients. The fact that individual groups tend to be defined by a similarity of interest or experience among their members would make any one group particularly hesitant to make such a claim. In looking for answers to the hard questions facing lawyers [who represent older clients], it is critical to consider the widest variety of perspectives - to seek the views of lawyers who represent older clients, lawyers who practice in other areas, non-lawyer representatives of older persons, academics, health-care professionals, and others with valuable insights. That is why this Conference was co-sponsored by six groups representing varying perspectives, and why the co-sponsors sought to bring together thoughtful individuals with a variety of backgrounds and experiences. Bruce A. Green & Nancy Coleman, Foreword, Ethical Issues in Representing Older Clients, 62 FORDHAM L. REV. 961, 970-71 (1994).
202. Pronouncements by the DOJ in defense of the regulation would tend to reinforce this perception. See, e.g., Communications with Represented Persons (Final Rule), supra note 23, at 39,911 ("[T]he Department has long maintained, and continues to maintain, that it has the aushy; thority to exempt its attorneys from the application of DR 7-104 and Model Rule 4.2 and their state counterparts.").
203. See, e.g., id. at 39,915 (noting that two organizations criticizing the proposed regulation read it as "holding government attorneys to ethical standards no higher than what the Constitushy; tion provides").
204. The DOJ has challenged both the authority of courts to apply ethical rules to federal prosecutors, see supra, note 25, and the authority of courts to provide various sanctions for conshy; cededly improper prosecutorial conduct. See, e.g., United States v. Horn, 29 F.3d 754, 767 (1st Cir. 1994) (assessment of monetary penalties against the government for prosecutorial misconshy; duct violates sovereign immunity); United States v. Woodley, 9 F.3d 774, 781 (9th Cir. 1993) (holding that absent an express waiver of sovereign immunity a court may not impose monetary sanctions against the government); United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992) (refusing to dismiss indictment despite prosecutorial misconduct), cert. denied, 507 U.S. 985 (1993); United States v. Prince, No. CR 93-1073(RR), 1994 U.S. Dist. LEXIS 2962 (E.D.N.Y. Mar. 9, 1994) (rejecting government's argument that sovereign immunity bars imposition of sanctions against it).
205. The DOJ's decision to preempt judicial rules of conduct raises two prudential concerns apart from whether, in doing so, it developed substandard rules because of its exclusion of others from the drafting and decisionmaking processes. The first is the regulation's possibly negative impact on the DOJ's relations with bench and bar. The danger is that it will ratchet antagonism up a notch. Certainly, state judges have viewed the regulation as an act of advocacy from the perspective of both the DOJ's role in fashioning the rule and in enforcing it. The Conference of Chief Judges has responded by taking the position that the DOJ lacks constitutional authority to preempt state regulation of attorneys who are federal prosecutors. See Communications with Represented Persons (Final Rule), supra note 23, at 39,915-16. State Chief Judges have agreed to instruct state disciplinary authorities essentially to ignore the regulation. See Mark Curriden, State Court Chiefs Flex New Muscle, NAT'L L.J., Oct. 17, 1994, at A1, A26; Coquillette Report, supra note 13, at 33-34. The other concern is the regulation's potential impact on federal prosecutors themselves. At the same time that the DOJ has sought to promote compliance with ethical rules by training ethics experts in each of the United States Attorneys' Offices, it has promulgated a regulation that sends very different signals: a signal to individual prosecutors and their offices that they may appropriately test the limits of proper ethical conduct in order to promote investigative and prosecutorial interests, and a signal that prosecutors, and not the courts, are the arbiters of their own conduct. This may encourage federal prosecutors to take an aggressive approach even toshy; ward those ethical rules that are legally enforceable. And, if federal prosecutors are adamant about challenging judicially imposed ethical rules such as Model Rule 4.2, how can they be exshy; pected to exercise reasonable judgment and restraint in those areas where they are not, and never have been, subject to judicially enforceable limits of any meaningful sort - areas such as the choice of whom to investigate or the preparation of witnesses?
206. See supra note 13. On occasion, federal courts establish legally enforceable standards of lawyer conduct in the course of adjudication by issuing pronouncements about how lawyers should behave on an ad hoc basis. One illustration is a series of judicial opinions in the Second Circuit requiring prosecutors to take steps to avert a conflict of interest on the part of the deshy; fendant's lawyers. See, e.g., United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986) (prosecutors should move for defense counsel's disqualification before trial when they are aware of a conflict of interest). See generally Bruce A. Green, Her Brother's Keeper: The Prosecutor's Responsibilshy; ity when Defense Counsel Has a Potential Conflict of Interest, 16 AM. J. CRIM. L. 323 (1989) (arguing that prosecutors should help to eliminate defense lawyers' conflicts of interest).
207. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.4(c) (1993) (mandating that it is misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentashy; tion"); id. Rule 8.4(d) (mandating that it is misconduct to "engage in conduct that is prejudicial to the administration of justice"). See generally Donald T. Weckstein, Maintaining the Integrity and Competence of the Legal Profession, 48 TEX. L. REV. 267, 276 (1970) (noting that vague and broad language describing proscribed conduct is ineffective in providing standards for professhy; sional discipline); Martha E. Johnston, Comment, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N.C. L. REV. 671 (1979) (arguing that the broad language in the ABA Model Code does not provide sufficient guidance to practicing attorneys and may lead to selecshy; tive enforcement by state bar committees).
208. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.4(c) (1993) (mandating that it is misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentashy; tion"); id. Rule 8.4(d) (mandating that it is misconduct to "engage in conduct that is prejudicial to the administration of justice"). See generally Donald T. Weckstein, Maintaining the Integrity and Competence of the Legal Profession, 48 TEX. L. REV. 267, 276 (1970) (noting that vague and broad language describing proscribed conduct is ineffective in providing standards for professhy; sional discipline); Martha E. Johnston, Comment, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N.C. L. REV. 671 (1979) (arguing that the broad language in the ABA Model Code does not provide sufficient guidance to practicing attorneys and may lead to selecshy; tive enforcement by state bar committees).
209. The ABA drafters conceive of the professional rules as stating general obligations, and not containing "implementing regulations" - a conception which is at odds with their use as disciplinary standards. For example, several years ago, the ABA Standing Committee on Ethics and Professional Responsibility objected on this ground to a proposed amendment to the ABA Model Rules specifying that attorneys must perform at least 50 hours of pro bono work annually: This Committee strongly believes that the Model Rules are not the approprishy; ate place for what are in effect implementing regulations, even for a subject as important as pro bono publico service. We have objected on precisely this ground to a proposal to implement the requirements of Model Rule 1.15, for safekeeping property, by an amendment to that Rule that would prescribe recordkeeping and accounting procedures. We would similarly oppose a proposal, were one advanced, to implement Rule 1.1's command of competence by spelling out continuing legal education requirements; or Rule 1.5's requirement that fees be reasonable, by the insertion of numerical guidelines. It is this Committee's firmly held view that the proper role of the Model Rules is best served by preserving their character as relashy; tively general statements of principle rather than detailed prescriptions for impleshy; mentation of those principles. Letter from David B. Isbell, Chair, ABA Standing Committee on Ethics and Professional Reshy; sponsibility, to various federal and state bar associations 1-2 (April 2, 1992) (on file with The George Washington Law Review). Many commentators have noted that this approach has produced rules that are extraordinashy; rily uncertain in scope and application. See, e.g., Richard L. Abel, Why Does the ABA Promulshy; gate Ethical Rules?, 59 TEX. L. REV. 639, 642 (1981) ("[T]he Model Rules are drafted with an amorphousness and ambiguity that render them virtually meaningless."); Green, supra note 6, at 502-08 (noting that the disciplinary decision in Doe v. Federal Grievance Comm., 847 F.2d 57 (2d Cir. 1988), resolved only one of five interpretive questions under DR 7-102(B)(2) that were raised by the lawyer's conduct); Wilkins, supra note 1, at 810 (noting that "both the Model Code and the Model Rules are filled with . . . commands" that "are ambiguous, incomplete, or in tension with other, plausibly applicable rules"). But see Murray L. Schwartz, The Death and Regeneration of Ethics, 1980 AM. B. FOUND. RES. J. 953, 953-54 (noting "the shift from articulating professional standards, suffused with ideas of morality and ethics, and enforced if at all by informal sanctions and peer pressure, to enacting comprehensive and explicit legislation attended by formally imposed sanctions for breach").
210. The ABA drafters conceive of the professional rules as stating general obligations, and not containing "implementing regulations" - a conception which is at odds with their use as disciplinary standards. For example, several years ago, the ABA Standing Committee on Ethics and Professional Responsibility objected on this ground to a proposed amendment to the ABA Model Rules specifying that attorneys must perform at least 50 hours of pro bono work annually: This Committee strongly believes that the Model Rules are not the approprishy; ate place for what are in effect implementing regulations, even for a subject as important as pro bono publico service. We have objected on precisely this ground to a proposal to implement the requirements of Model Rule 1.15, for safekeeping property, by an amendment to that Rule that would prescribe recordkeeping and accounting procedures. We would similarly oppose a proposal, were one advanced, to implement Rule 1.1's command of competence by spelling out continuing legal education requirements; or Rule 1.5's requirement that fees be reasonable, by the insertion of numerical guidelines. It is this Committee's firmly held view that the proper role of the Model Rules is best served by preserving their character as relashy; tively general statements of principle rather than detailed prescriptions for impleshy; mentation of those principles. Letter from David B. Isbell, Chair, ABA Standing Committee on Ethics and Professional Reshy; sponsibility, to various federal and state bar associations 1-2 (April 2, 1992) (on file with The George Washington Law Review). Many commentators have noted that this approach has produced rules that are extraordinashy; rily uncertain in scope and application. See, e.g., Richard L. Abel, Why Does the ABA Promulshy; gate Ethical Rules?, 59 TEX. L. REV. 639, 642 (1981) ("[T]he Model Rules are drafted with an amorphousness and ambiguity that render them virtually meaningless."); Green, supra note 6, at 502-08 (noting that the disciplinary decision in Doe v. Federal Grievance Comm., 847 F.2d 57 (2d Cir. 1988), resolved only one of five interpretive questions under DR 7-102(B)(2) that were raised by the lawyer's conduct); Wilkins, supra note 1, at 810 (noting that "both the Model Code and the Model Rules are filled with . . . commands" that "are ambiguous, incomplete, or in tension with other, plausibly applicable rules"). But see Murray L. Schwartz, The Death and Regeneration of Ethics, 1980 AM. B. FOUND. RES. J. 953, 953-54 (noting "the shift from articulating professional standards, suffused with ideas of morality and ethics, and enforced if at all by informal sanctions and peer pressure, to enacting comprehensive and explicit legislation attended by formally imposed sanctions for breach").
211. The ABA drafters conceive of the professional rules as stating general obligations, and not containing "implementing regulations" - a conception which is at odds with their use as disciplinary standards. For example, several years ago, the ABA Standing Committee on Ethics and Professional Responsibility objected on this ground to a proposed amendment to the ABA Model Rules specifying that attorneys must perform at least 50 hours of pro bono work annually: This Committee strongly believes that the Model Rules are not the approprishy; ate place for what are in effect implementing regulations, even for a subject as important as pro bono publico service. We have objected on precisely this ground to a proposal to implement the requirements of Model Rule 1.15, for safekeeping property, by an amendment to that Rule that would prescribe recordkeeping and accounting procedures. We would similarly oppose a proposal, were one advanced, to implement Rule 1.1's command of competence by spelling out continuing legal education requirements; or Rule 1.5's requirement that fees be reasonable, by the insertion of numerical guidelines. It is this Committee's firmly held view that the proper role of the Model Rules is best served by preserving their character as relashy; tively general statements of principle rather than detailed prescriptions for impleshy; mentation of those principles. Letter from David B. Isbell, Chair, ABA Standing Committee on Ethics and Professional Reshy; sponsibility, to various federal and state bar associations 1-2 (April 2, 1992) (on file with The George Washington Law Review). Many commentators have noted that this approach has produced rules that are extraordinashy; rily uncertain in scope and application. See, e.g., Richard L. Abel, Why Does the ABA Promulshy; gate Ethical Rules?, 59 TEX. L. REV. 639, 642 (1981) ("[T]he Model Rules are drafted with an amorphousness and ambiguity that render them virtually meaningless."); Green, supra note 6, at 502-08 (noting that the disciplinary decision in Doe v. Federal Grievance Comm., 847 F.2d 57 (2d Cir. 1988), resolved only one of five interpretive questions under DR 7-102(B)(2) that were raised by the lawyer's conduct); Wilkins, supra note 1, at 810 (noting that "both the Model Code and the Model Rules are filled with . . . commands" that "are ambiguous, incomplete, or in tension with other, plausibly applicable rules"). But see Murray L. Schwartz, The Death and Regeneration of Ethics, 1980 AM. B. FOUND. RES. J. 953, 953-54 (noting "the shift from articulating professional standards, suffused with ideas of morality and ethics, and enforced if at all by informal sanctions and peer pressure, to enacting comprehensive and explicit legislation attended by formally imposed sanctions for breach").
212. The ABA drafters conceive of the professional rules as stating general obligations, and not containing "implementing regulations" - a conception which is at odds with their use as disciplinary standards. For example, several years ago, the ABA Standing Committee on Ethics and Professional Responsibility objected on this ground to a proposed amendment to the ABA Model Rules specifying that attorneys must perform at least 50 hours of pro bono work annually: This Committee strongly believes that the Model Rules are not the approprishy; ate place for what are in effect implementing regulations, even for a subject as important as pro bono publico service. We have objected on precisely this ground to a proposal to implement the requirements of Model Rule 1.15, for safekeeping property, by an amendment to that Rule that would prescribe recordkeeping and accounting procedures. We would similarly oppose a proposal, were one advanced, to implement Rule 1.1's command of competence by spelling out continuing legal education requirements; or Rule 1.5's requirement that fees be reasonable, by the insertion of numerical guidelines. It is this Committee's firmly held view that the proper role of the Model Rules is best served by preserving their character as relashy; tively general statements of principle rather than detailed prescriptions for impleshy; mentation of those principles. Letter from David B. Isbell, Chair, ABA Standing Committee on Ethics and Professional Reshy; sponsibility, to various federal and state bar associations 1-2 (April 2, 1992) (on file with The George Washington Law Review). Many commentators have noted that this approach has produced rules that are extraordinashy; rily uncertain in scope and application. See, e.g., Richard L. Abel, Why Does the ABA Promulshy; gate Ethical Rules?, 59 TEX. L. REV. 639, 642 (1981) ("[T]he Model Rules are drafted with an amorphousness and ambiguity that render them virtually meaningless."); Green, supra note 6, at 502-08 (noting that the disciplinary decision in Doe v. Federal Grievance Comm., 847 F.2d 57 (2d Cir. 1988), resolved only one of five interpretive questions under DR 7-102(B)(2) that were raised by the lawyer's conduct); Wilkins, supra note 1, at 810 (noting that "both the Model Code and the Model Rules are filled with . . . commands" that "are ambiguous, incomplete, or in tension with other, plausibly applicable rules"). But see Murray L. Schwartz, The Death and Regeneration of Ethics, 1980 AM. B. FOUND. RES. J. 953, 953-54 (noting "the shift from articulating professional standards, suffused with ideas of morality and ethics, and enforced if at all by informal sanctions and peer pressure, to enacting comprehensive and explicit legislation attended by formally imposed sanctions for breach").
213. In some cases, courts review disciplinary decisions rendered by agencies or committees acting under judicial authority and subject to judicial oversight. See, e.g., In re Cooperman, 633 N.E.2d 1069 (N.Y. 1994). In others, courts assume responsibility from the outset for deciding whether to sanction a lawyer. See, e.g., United States v. Gionvanelli, 897 F.2d 1227 (2d Cir.) (upholding summary contempt sanction), cert. denied, 498 U.S. 822 (1990); People v. Simac, 641 N.E.2d 416 (Ill. 1994) (upholding contempt conviction).
214. The most frequent source of such decisions are motions to disqualify an opposing lawyer based on a conflict of interest. See generally Mark F. Anderson, Motions to Disqualify Opposing Counsel, 30 WASHBURN L.J. 238 (1991) (noting the increasing use of motions to disqualify, often for purely strategic purposes); Stephen H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 MINN. L. REV. 227, 227-28 (1987) (describing how motions to disqualify counsel for conflict of interest have proliferated); Bruce A. Green, "Through a Glass, Darkly": How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 COLUM. L. REV. 1201 (1989) (describing judicial treatment of motions to disqualify); James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 AM. B. FOUND. RES. J. 419 (arguing that disqualification has become too common); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 WASH. L. REV. 863 (1987) (noting that disqualification motions have become a common tactic in litigation). Lawyers may be disqualified to prevent or sanction other misconduct as well. See, e.g., Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984) (disqualifying plaintiff's lawyer for improper ex parte communication with represented party). Decisions interpreting rules of professional conduct may also respond to motions to suppress evidence allegedly obtained by a lawyer through improper means or motions or for a protective order to prevent an opposing lawyer from engaging in allegedly wrongful conduct. See, e.g., Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971) (suppressing evidence obtained through improper ex parte communication with represented party). See generally Erica M. Landsberg, Comment, Policing Attorneys: Exclusion of Unethically Obtained Evidence, 53 U. CHI. L. REV. 1399 (1986) (arguing for the adoption of an exclusionary rule for evidence obtained in violation of the rules of professional responsibility).
215. The most frequent source of such decisions are motions to disqualify an opposing lawyer based on a conflict of interest. See generally Mark F. Anderson, Motions to Disqualify Opposing Counsel, 30 WASHBURN L.J. 238 (1991) (noting the increasing use of motions to disqualify, often for purely strategic purposes); Stephen H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 MINN. L. REV. 227, 227-28 (1987) (describing how motions to disqualify counsel for conflict of interest have proliferated); Bruce A. Green, "Through a Glass, Darkly": How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 COLUM. L. REV. 1201 (1989) (describing judicial treatment of motions to disqualify); James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 AM. B. FOUND. RES. J. 419 (arguing that disqualification has become too common); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 WASH. L. REV. 863 (1987) (noting that disqualification motions have become a common tactic in litigation). Lawyers may be disqualified to prevent or sanction other misconduct as well. See, e.g., Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984) (disqualifying plaintiff's lawyer for improper ex parte communication with represented party). Decisions interpreting rules of professional conduct may also respond to motions to suppress evidence allegedly obtained by a lawyer through improper means or motions or for a protective order to prevent an opposing lawyer from engaging in allegedly wrongful conduct. See, e.g., Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971) (suppressing evidence obtained through improper ex parte communication with represented party). See generally Erica M. Landsberg, Comment, Policing Attorneys: Exclusion of Unethically Obtained Evidence, 53 U. CHI. L. REV. 1399 (1986) (arguing for the adoption of an exclusionary rule for evidence obtained in violation of the rules of professional responsibility).
216. The most frequent source of such decisions are motions to disqualify an opposing lawyer based on a conflict of interest. See generally Mark F. Anderson, Motions to Disqualify Opposing Counsel, 30 WASHBURN L.J. 238 (1991) (noting the increasing use of motions to disqualify, often for purely strategic purposes); Stephen H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 MINN. L. REV. 227, 227-28 (1987) (describing how motions to disqualify counsel for conflict of interest have proliferated); Bruce A. Green, "Through a Glass, Darkly": How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 COLUM. L. REV. 1201 (1989) (describing judicial treatment of motions to disqualify); James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 AM. B. FOUND. RES. J. 419 (arguing that disqualification has become too common); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 WASH. L. REV. 863 (1987) (noting that disqualification motions have become a common tactic in litigation). Lawyers may be disqualified to prevent or sanction other misconduct as well. See, e.g., Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984) (disqualifying plaintiff's lawyer for improper ex parte communication with represented party). Decisions interpreting rules of professional conduct may also respond to motions to suppress evidence allegedly obtained by a lawyer through improper means or motions or for a protective order to prevent an opposing lawyer from engaging in allegedly wrongful conduct. See, e.g., Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971) (suppressing evidence obtained through improper ex parte communication with represented party). See generally Erica M. Landsberg, Comment, Policing Attorneys: Exclusion of Unethically Obtained Evidence, 53 U. CHI. L. REV. 1399 (1986) (arguing for the adoption of an exclusionary rule for evidence obtained in violation of the rules of professional responsibility).
217. The most frequent source of such decisions are motions to disqualify an opposing lawyer based on a conflict of interest. See generally Mark F. Anderson, Motions to Disqualify Opposing Counsel, 30 WASHBURN L.J. 238 (1991) (noting the increasing use of motions to disqualify, often for purely strategic purposes); Stephen H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 MINN. L. REV. 227, 227-28 (1987) (describing how motions to disqualify counsel for conflict of interest have proliferated); Bruce A. Green, "Through a Glass, Darkly": How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 COLUM. L. REV. 1201 (1989) (describing judicial treatment of motions to disqualify); James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 AM. B. FOUND. RES. J. 419 (arguing that disqualification has become too common); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 WASH. L. REV. 863 (1987) (noting that disqualification motions have become a common tactic in litigation). Lawyers may be disqualified to prevent or sanction other misconduct as well. See, e.g., Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984) (disqualifying plaintiff's lawyer for improper ex parte communication with represented party). Decisions interpreting rules of professional conduct may also respond to motions to suppress evidence allegedly obtained by a lawyer through improper means or motions or for a protective order to prevent an opposing lawyer from engaging in allegedly wrongful conduct. See, e.g., Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971) (suppressing evidence obtained through improper ex parte communication with represented party). See generally Erica M. Landsberg, Comment, Policing Attorneys: Exclusion of Unethically Obtained Evidence, 53 U. CHI. L. REV. 1399 (1986) (arguing for the adoption of an exclusionary rule for evidence obtained in violation of the rules of professional responsibility).
218. The most frequent source of such decisions are motions to disqualify an opposing lawyer based on a conflict of interest. See generally Mark F. Anderson, Motions to Disqualify Opposing Counsel, 30 WASHBURN L.J. 238 (1991) (noting the increasing use of motions to disqualify, often for purely strategic purposes); Stephen H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 MINN. L. REV. 227, 227-28 (1987) (describing how motions to disqualify counsel for conflict of interest have proliferated); Bruce A. Green, "Through a Glass, Darkly": How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 COLUM. L. REV. 1201 (1989) (describing judicial treatment of motions to disqualify); James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 AM. B. FOUND. RES. J. 419 (arguing that disqualification has become too common); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 WASH. L. REV. 863 (1987) (noting that disqualification motions have become a common tactic in litigation). Lawyers may be disqualified to prevent or sanction other misconduct as well. See, e.g., Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984) (disqualifying plaintiff's lawyer for improper ex parte communication with represented party). Decisions interpreting rules of professional conduct may also respond to motions to suppress evidence allegedly obtained by a lawyer through improper means or motions or for a protective order to prevent an opposing lawyer from engaging in allegedly wrongful conduct. See, e.g., Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971) (suppressing evidence obtained through improper ex parte communication with represented party). See generally Erica M. Landsberg, Comment, Policing Attorneys: Exclusion of Unethically Obtained Evidence, 53 U. CHI. L. REV. 1399 (1986) (arguing for the adoption of an exclusionary rule for evidence obtained in violation of the rules of professional responsibility).
219. The most frequent source of such decisions are motions to disqualify an opposing lawyer based on a conflict of interest. See generally Mark F. Anderson, Motions to Disqualify Opposing Counsel, 30 WASHBURN L.J. 238 (1991) (noting the increasing use of motions to disqualify, often for purely strategic purposes); Stephen H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 MINN. L. REV. 227, 227-28 (1987) (describing how motions to disqualify counsel for conflict of interest have proliferated); Bruce A. Green, "Through a Glass, Darkly": How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 COLUM. L. REV. 1201 (1989) (describing judicial treatment of motions to disqualify); James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 AM. B. FOUND. RES. J. 419 (arguing that disqualification has become too common); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 WASH. L. REV. 863 (1987) (noting that disqualification motions have become a common tactic in litigation). Lawyers may be disqualified to prevent or sanction other misconduct as well. See, e.g., Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984) (disqualifying plaintiff's lawyer for improper ex parte communication with represented party). Decisions interpreting rules of professional conduct may also respond to motions to suppress evidence allegedly obtained by a lawyer through improper means or motions or for a protective order to prevent an opposing lawyer from engaging in allegedly wrongful conduct. See, e.g., Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216 (7th Cir. 1971) (suppressing evidence obtained through improper ex parte communication with represented party). See generally Erica M. Landsberg, Comment, Policing Attorneys: Exclusion of Unethically Obtained Evidence, 53 U. CHI. L. REV. 1399 (1986) (arguing for the adoption of an exclusionary rule for evidence obtained in violation of the rules of professional responsibility).
220. See supra notes 16-18 and accompanying text.
221. 48 F.3d 640 (2d Cir. 1995).
222. See id. at 651.
223. Cf., e.g., In re Alcantara, No. D-13 September Term 1995, 1995 N.J. LEXIS 1364 (N.J. Dec. 1, 1995). For a discussion of In re Alcanta, see infra note 198. The Simels case is unusual in other respects. First, the procedural setting is uncommon: Rarely do federal courts invoke their disciplinary processes to regulate the conduct of lawyers in criminal proceedings, and rarer still are disciplinary decisions addressing criminal law practices that are not manifestly improper. Moreover, the subject matter of the decision is noteworthy: Judicial decisions only infrequently address the propriety of criminal defense lawyers' conduct outside the courtroom. Finally, the issue addressed by the court - how DR 7-104(A)(1) applies to criminal defense lawyers - is itself significant. This question lurked, largely unnoticed, behind the past decade's debate about how this same rule applies to prosecutors. See supra part I.A. Not surprisingly, therefore, the court's opinion in Simels establishes new ground in the area of professional responsibility in criminal law practice and has important implications, not only with respect to defense lawyers' conduct, but also with respect to prosecutorial conduct.
224. See Simels, 48 F.3d at 642-43.
225. See id.
226. See id. at 643.
227. See id.
228. See id. at 650.
229. See id. at 643.
230. See id. at 643 & n.3.
231. See id. at 643 n.3. The court of appeals later rejected a claim that the disqualification order was unwarranted and that a retrial should therefore be barred by the Double Jeopardy Clause. See United States v. Arrington, 867 F.2d 122, 129 (2d Cir.), cert. denied, 493 U.S. 817 (1989).
232. See Simels, 48 F.3d at 643. The disciplinary process in the Southern District of New York is governed by General Rule 4 of the United States District Courts for the Southern and Eastern Districts of New York. For a recent examination of the process, see In re Jacobs, 44 F.3d 84 (2d Cir. 1994), cert denied, 116 S. Ct. 73 (1995).
233. See Simels, 48 F.3d at 643. Other allegations of misconduct were either dismissed by the panel or not considered. See id. at 643-44. The court of appeals in Simels determined that there was no basis for remanding for further consideration of these other allegations. See id. at 644 n.5.
234. See id. at 643.
235. See id.
236. See id. at 644.
237. See id.
238. See id. at 645.
239. See id.
240. See id.
241. Id. Simels implicitly rejected a principle of interpretation adopted by the Second Circuit in an earlier disciplinary decision, Doe v. Federal Grievance Comm., 847 F.2d 57 (2d Cir. 1988). In Doe, the court equated the meaning of a disciplinary rule with "the drafters' intent." Id. at 62. Accordingly, faced with another ambiguous disciplinary rule, the Doe decision undertook a
242. Id. In this case, bar association opinions pointed in opposite directions. Compare New York State Bar Ass'n Comm. on Professional Ethics, Op. 245 (1972) ("A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of the opposing counsel or party, as a witness does not 'belong' to any party.") with New York County Lawyers Ass'n Comm. on Professional Ethics, Question No. 676 (1990) (holding criminal defense attorney may not directly contact a potential witness who has not been implicated in the charges against his client but is represented on unrelated criminal charges; the term "party" includes any represented "person" whose interests may be implicated by the communications) [hereinafter New York County 676].
243. Simels, 48 F.3d at 645.
244. Id.
245. See id. at 646-47.
246. Id. at 647.
247. Id. The court's reference is somewhat misleading. Apparently, the court was referring to the general principle that lawyers should not communicate with represented adversaries, as codified in the 1908 ABA Canons of Professional Ethics ("ABA Canons"). Canon 9 provided, in pertinent part: "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." CANONS OF PROFESSIONAL ETHICS Canon 9 (1908). The ABA Canons, unlike the ABA Model Code, was not designed to serve as the basis of disciplinary standards (although state courts sometimes invoked them for that purpose). See WOLFRAM, supra note 4, at 54-55 ("The Canons . . . seem to have been a statement of professional solidarity - an assertion by elite lawyers in the ABA of the legitimacy of their claim to professional stature." (footnote omitted)). Even so, the relevance of the underlying principle to criminal proceedings was noted prior to the adoption of the ABA Model Code, which included DR 7-104(A)(1), in 1969. See, e.g., Massiah v. United States, 377 U.S. 201, 210-11 (1964) (White, J., dissenting) (rejecting analogy to ABA rule on ground that communication with represented defendant was undertaken by codefendant, not by government lawyer); United States v. Smith, 379 F.2d 628, 633 (7th Cir.) (declining to exercise supervisory authority to suppress confession based on violation of Canon 9 of the ABA Canons), cert denied, 389 U.S. 993 (1967). Within a short time after state courts began adopting the ABA Model Code to establish the standard of conduct for lawyers within the jurisdiction, defense lawyers began to invoke DR 7-104(A)(1) in criminal cases to support motions to suppress confessions allegedly obtained in contravention of the rule. See supra note 51 (citing cases).
248. The ABA itself would no doubt reject this position. See supra notes 116-117 and accomshy; panying text; see also ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1373 (1976) (the rule bars a prosecutor from sending a represented client a copy of a letter containing a plea offer, even though no charges had yet been filed); ABA Comm. on Ethics and Professhy; sional Responsibility, Report No. 301 to the House of Delegates (Feb. 12, 1990) (on file with the ABA) (criticizing Thornburgh Memorandum, which asserted that prosecutors were not bound by DR 7-104(A)(1)).
249. See Simels, 48 F.3d at 647.
250. See id. at 650.
251. Id.
252. See id. at 645.
253. See id. at 650.
254. See id. Other authorities have read the rule more broadly. See, e.g., WOLFRAM, supra note 4, at § 11.6.2 & n.33 (noting that DR 7-104(A)(1) probably prohibits contact with any pershy; son represented by a lawyer in a matter); Green, supra note 43, at 305-09 (discussing authorities addressing whether "the subject of the representation" for a defendant includes uncharged offenses).
255. See Simels, 48 F.3d at 650.
256. See id. The court's conclusion seems somewhat inconsistent with decisions recognizing that government witnesses in criminal cases may have important interests implicated by the trial in which they are testifying that are adverse to the interests of the criminal defendant. See, e.g., United States ex rel. Stewart v. Kelly, 870 F.2d 854, 857 (2d Cir. 1989) (holding that trial court's refusal to allow defendant to be represented by attorney he chose, where interests of defendant were potentially in conflict with interests of prosecution witness who was former client of that attorney, was not a violation of defendant's Sixth Amendment right to counsel); United States v. Cheshire, 707 F. Supp. 235, 239 (M.D. La. 1989) (holding that defense attorney was disqualified from representing defendant because of attorney's prior representation of government witness). See generally Green, supra note 148, at 1217-18 & nn.83-84 (discussing Stewart and Cheshire).
257. See Simels, 48 F.3d at 650.
258. See id.
259. See id.
260. See id.
261. See id.
262. Id. at 651.
263. Id.
264. See id.
265. Id. at 644.
266. One reflection of this is the proliferation of bar association committees that have been established to give advice to lawyers about the propriety of their proposed conduct. See infra note 306 and accompanying text. Opinions published by committees of the ABA and state and local bar associations are synopsized in the Lawyer's Manual on Professional Conduct (ABA/ BNA).
267. See, e.g., United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (interpreting DR 7-104(A)(1)); Doe v. Federal Grievance Comm., 847 F.2d 57 (2d Cir. 1988) (interpreting DR 7-102(B)(2)); International Business Machs. Corp. v. Levin, 579 F.2d 271 (3d Cir. 1978) (interpretshy; ing DR 5-105); Mustang Enters., Inc. v. Plug-In Storage Sys., Inc., 874 F. Supp. 881 (N.D. Ill. 1995) (interpreting Model Rule 1.10); United States v. Josten, No. 88 CR 644, 1989 U.S. Dist. LEXIS 10983 (N.D. Ill. Sept. 14, 1989) (interpreting DR 9-101(B)).
268. In In re Alcantara, No. D-13 September Term 1995, 1995 N.J. LEXIS 1364 (N.J. Dec. 1, 1995), the New Jersey Supreme Court held that a criminal defense lawyer had violated the noshy; contact rule by communicating directly with represented codefendants who had entered guilty pleas with lenient sentence recommendations conditioned on their testifying against the lawyer's client. The court's reasoning, in its entirety, was that "[t]he word 'party' in [Model Rule 4.2] denotes 'adversaries,'" which would include the codefendants, because by agreeing to testify on the government's behalf, "their status [had become] much more significant than that of mere witnesses; they were adverse-party witnesses." Id. at *20.
269. See supra notes 123-125 and accompanying text.
270. Grievance Comm. v. Simels, 48 F.3d 640, 642-44 (2d Cir. 1995).
271. Simels, of course, appeared in a personal, rather than representational capacity, and could not have been expected to represent the views of the defense bar insofar as they conflicted with his own interest in avoiding disciplinary sanctions.
272. See, e.g., United States v. Gertner, 873 F. Supp. 727 (D. Mass.), aff'd, 65 F.3d 963 (1st Cir. 1995); In re Cooperman, 633 N.E.2d 1069 (N.Y. 1994).
273. On occasion, a party seeks rehearing or rehearing en banc. On rarer occasion still, a federal court of appeals revises its opinion in response to such a request. See, e.g., United States v. Hammad, 858 F.2d 834, 839 (2d Cir.), modifying 846 F.2d 854 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990). In this case, however, special counsel did not petition for rehearing and, thus, there would have been no occasion for the court to reconsider its decision.
274. Simels, 48 F.3d at 647.
275. ABA Op. 95-396, supra note 116, at 4-5 (quoting MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-18 (1980)); see also supra note 43 (noting that the no-contact rule protects clients from opposing counsel and ensures that laypersons make major decisions with the advice of their own counsel).
276. Cases extending the Sixth Amendment right to counsel to police interrogation serve a similar function. See, e.g., Maine v. Moulton, 474 U.S. 159, 170 & n.7 (1985); see also Uviller, supra note 53, at 1176 (arguing that once the state's interests become adverse to the defendant's, police should not be able to use an inquisitorial method of gathering evidence). Ex parte communications by a codefendant's lawyer might similarly deprive the defendant of counsel's advice as to an important decision with legal implications. See, e.g., United States v. Lopez, 989 F.2d 1032, 1043 (9th Cir.) (Fletcher, J., concurring) (identifying problems that may arise when a codefendant's lawyer has contact with another codefendant whose interests potentially conflict with the lawyer's client's interests), vacated, 4 F.3d 1455 (9th Cir. 1993).
277. See Communications with Represented Persons (1994), supra note 92, at 10,092-93.
278. See Simels, 48 F.3d at 647.
279. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-18 (1980) ("If one is not represented by counsel, a lawyer representing another may have to deal directly with the unrepresented person . . . .").
280. See ABA Op. 95-396, supra note 116, at 5.
281. See, e.g., Kearns v. Fred Lavey/Porsche Audi Co., 573 F. Supp. 91, 95-96 (E.D. Mich. 1983) (holding that attorney breached professional standards by negotiating with potential plaintiff after he knew that potential plaintiff was represented by other lawyers), aff'd, 745 F.2d 600 (Fed. Cir. 1984), cert. denied, 469 U.S. 1192 (1985); Triple A Mach. Shop, Inc. v. State, 261 Cal. Rptr. 493, 498 (Cal. Ct. App. 1989) (holding rule "attached once an attorney knew that an opposing party was represented by counsel even where no formal action had been filed"); Florida State Bar Ass'n Comm. on Professional Ethics, Op. 78-4 (1978) (holding rule applies "whenever an attorney-client relationship has been established with regard to the matter in question, regardless of whether or not litigation has commenced"); Mississippi State Bar, Op. 141 (1988) ("[T]he actual filing of a lawsuit or intent to file a lawsuit is irrelevant to the question of whether the lawyer may communicate with the adverse party."); Oregon State Bar Ass'n Bd. of Governors, Op. 1991-42 (1991) (holding before instituting lawsuit, lawyer for prospective agent may not contact prospective defendant or have agent do so if the prospective defendant is known to be represented); Texas State Bar Professional Ethics Comm., Op. 492 (1994) (holding rule applies "despite the fact that litigation is neither in progress nor contemplated").
282. For example, the rule has been read to forbid plaintiff's counsel from directly contacting the defendant's insurer. See, e.g., Waller v. Kotzen, 567 F. Supp. 424, 426-27 (E.D. Pa. 1983); Estate of Vafiades v. Sheppard Bus Serv., 469 A.2d 971, 978 (N.J. Super. Ct. Law Div. 1983).
283. See infra note 328.
284. See, e.g., In re Schwabe, 408 P.2d 922 (Or. 1965) (disciplining lawyer, in part, for telephoning adverse party to ask whether he had in fact retained counsel after the lawyer had received a letter from counsel indicating he was representing the adverse party); Board of Professional Responsibility of the Supreme Court of Tenn., Op. 85-F-89 (1985) (ruling that attorney may not eavesdrop on conversation between client and adverse party and that such conduct constitutes "communication," which is defined as " 'information given; the sharing of knowledge by one with another . . . .'" (quoting BLACK'S LAW DICTIONARY 253 (5th ed. 1979)).
285. Lawyers may not circumvent the rule by hiring private investigators to conduct the questioning. See, e.g., Upjohn Co. v. Aetna Casualty & Sur. Co., 768 F. Supp. 1186, 1214 (W.D. Mich. 1990) (stating that lawyers who order nonlawyer assistants to engage in conduct that violates the ABA Model Rules are subject to discipline under the Model Rules). Indeed, some authorities have read the rule to forbid a lawyer from counseling the client personally to contact a represented adversary. See, e.g., In re Murray, 601 P.2d 780, 783 (Or. 1979).
286. See, e.g., Oregon State Bar Ass'n Bd. of Governors, Op. 1991-6 (1991).
287. See, e.g., Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc., 440 F.2d 1216, 1219 (7th Cir. 1971) ("[T]he desirability of deterring improper investigative conduct [is] a factor which [a] court could properly consider in the exercise of its discretion to exclude . . . evidence."); McCallum v. CSX Transp., Inc., 149 F.R.D. 104 (M.D.N.C. 1993) (noting that the court has the power to prohibit the use of ex parte contacts as admissions); University Patents, Inc. v. Kligman, 737 F. Supp. 325, 329 (E.D. Pa. 1990) (concluding that attorney's ex parte contacts with employees of opposing party should be suppressed).
288. See, e.g., American Protection Ins. Co. v. MGM Grand Hotel-Las Vegas, Inc., 765 F.2d 925 (9th Cir. 1985); Papanicolaou v. Chase Manhattan Bank, 720 F. Supp. 1080, 1085 (S.D.N.Y. 1989); Shelton v. Hess, 599 F. Supp. 905, 907 (S.D. Tex. 1984); Cronin v. Eighth Judicial Dist. Court, 781 P.2d 1150, 1153-54 (Nev. 1989).
289. This perhaps is why the Simels opinion, while extensively reviewing criminal case law applying the rule, does not examine civil case law interpreting DR 7-104(A)(1).
290. See Grievance Comm. v. Simels, 48 F.3d 640, 650-51 (2d Cir. 1995).
291. See id. at 651.
292. It has been observed that: DR 7-104(A)(1) reflects a reasonable and fair determination that, in civil cases, the interest in open access to information is not substantial enough to outweigh the interests promoted by the rule. This determination is reasonable because the ethical rule has only a slight impact on a civil litigant's access to information. In most cases, the rules of discovery provide an alternative way of obtaining information that is known to the opposing party. For example, a lawyer may question the opposing party in a deposition at which the truthfulness of the party's account can be put to the test of cross-examination. Because of this opportunity for cross-examination, the law fairly assumes that in most civil cases, information provided in a deposition, even if presented in a more favorable light, will not substantially differ from what would have been learned had the party been questioned in his attorney's absence. Moreover, even in civil proceedings that do not permit broad prehearing discovery, an opposing party generally may be called as a witness and questioned at the hearing itself. Moreover, the balance struck in civil cases is fair. That is because the impact of the ethical rule falls equally on both sides of a civil dispute. The rule does not favor plaintiffs over civil defendants, or vice versa. It does not upset a balance otherwise created by the law. Neither civil litigant has a greater right or need than the other to communicate directly with the opposing party. Green, supra note 43, at 317-18.
293. Had it been available, the government's participation might have been particularly helpful because it might have had access to additional evidence or to means of obtaining additional evidence.
294. See, e.g., MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-13 (1980) ("[The prosecutor's] duty is to seek justice, not merely to convict."); MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.8 cmt. (1992) ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."). See generally Robert H. Jackson, The Federal Prosecutor, 31 J. CRIM. L. & CRIMINOLOGY 3, 4 (1940) ("Although the government technically loses its case, it has really won if justice has been done."); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45 (1991) (discussing the prosecutor's paramount responsibility to seek justice within the adversarial system).
295. See, e.g., MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-13 (1980) ("[The prosecutor's] duty is to seek justice, not merely to convict."); MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.8 cmt. (1992) ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."). See generally Robert H. Jackson, The Federal Prosecutor, 31 J. CRIM. L. & CRIMINOLOGY 3, 4 (1940) ("Although the government technically loses its case, it has really won if justice has been done."); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45 (1991) (discussing the prosecutor's paramount responsibility to seek justice within the adversarial system).
296. See, e.g., Bruce A. Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C. L. REV. 687, 709, 711 (1991) (many criminal defense lawyers believe that the duty of zealous advocacy, as reflected in ABA Model Code DR 7-101, requires them to engage in ethically questionable conduct to promote the client's interests); see also Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relationship, 85 YALE L.J. 1060, 1060 (1976) (defending traditional conception of lawyer's role "as a professional devoted to his client's interests and as authorized, if not in fact required, to do some things (though not anything) for that client which he would not do for himself"); John B. Mitchell, The Ethics of the Criminal Defense Attorney - New Answers to Old Questions, 32 STAN. L. REV. 293 (1980) (arguing for the necessity of zealous defense even of clients known by the attorney to be guilty).
297. See, e.g., Bruce A. Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C. L. REV. 687, 709, 711 (1991) (many criminal defense lawyers believe that the duty of zealous advocacy, as reflected in ABA Model Code DR 7-101, requires them to engage in ethically questionable conduct to promote the client's interests); see also Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relationship, 85 YALE L.J. 1060, 1060 (1976) (defending traditional conception of lawyer's role "as a professional devoted to his client's interests and as authorized, if not in fact required, to do some things (though not anything) for that client which he would not do for himself"); John B. Mitchell, The Ethics of the Criminal Defense Attorney - New Answers to Old Questions, 32 STAN. L. REV. 293 (1980) (arguing for the necessity of zealous defense even of clients known by the attorney to be guilty).
298. See, e.g., Bruce A. Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C. L. REV. 687, 709, 711 (1991) (many criminal defense lawyers believe that the duty of zealous advocacy, as reflected in ABA Model Code DR 7-101, requires them to engage in ethically questionable conduct to promote the client's interests); see also Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relationship, 85 YALE L.J. 1060, 1060 (1976) (defending traditional conception of lawyer's role "as a professional devoted to his client's interests and as authorized, if not in fact required, to do some things (though not anything) for that client which he would not do for himself"); John B. Mitchell, The Ethics of the Criminal Defense Attorney - New Answers to Old Questions, 32 STAN. L. REV. 293 (1980) (arguing for the necessity of zealous defense even of clients known by the attorney to be guilty).
299. The court might well have rejected this argument, had it been made. Lawyers are presumed to act in accordance with their ethical responsibilities, and there is no justification for denying this presumption to criminal defense lawyers as a class. See generally, Green, supra note 148, at 1223-30 (discussing traditional judicial optimism about defense attorneys' adherence to ethical standards). To the extent that defense lawyers conduct investigations consistently with applicable ethical restrictions, it can be generalized that evidence they uncover through ex parte contacts will contribute to the discovery of the truth, just as this generalization is made with respect to prosecutors. See Green, supra note 43, at 317-20. This is not to say that the disclosures themselves will invariably be truthful. However, false information - if proven false - may be probative regarding the witness's credibility or state of mind. Insofar as such communications lead to the discovery of truthful, rather than false information, they promote not only the defendant's interest in effective representation but also the public interest in discovering the truth through the adversarial process.
300. The court might well have rejected this argument, had it been made. Lawyers are presumed to act in accordance with their ethical responsibilities, and there is no justification for denying this presumption to criminal defense lawyers as a class. See generally, Green, supra note 148, at 1223-30 (discussing traditional judicial optimism about defense attorneys' adherence to ethical standards). To the extent that defense lawyers conduct investigations consistently with applicable ethical restrictions, it can be generalized that evidence they uncover through ex parte contacts will contribute to the discovery of the truth, just as this generalization is made with respect to prosecutors. See Green, supra note 43, at 317-20. This is not to say that the disclosures themselves will invariably be truthful. However, false information - if proven false - may be probative regarding the witness's credibility or state of mind. Insofar as such communications lead to the discovery of truthful, rather than false information, they promote not only the defendant's interest in effective representation but also the public interest in discovering the truth through the adversarial process.
301. Only the government could have been expected to argue for the interest of cooperating witnesses in being protected from ex parte contact. The same forces that discourage lawyers from counseling their clients to cooperate with the government would discourage representatives of the organized bar from publicly taking the side of cooperating witnesses. See generally Daniel C. Richman, Cooperating Clients, 56 OHIO ST. L.J. 69, 116-26 (1995) (describing ideological and economic disincentives against counseling clients to cooperate with the government).
302. The court declined to take the interest of cooperating clients into account, however, explaining that a district court is not the proper body to choose whether one lawyer's "obligation to provide effective assistance to his client must yield to another defendant's interests." Grievance Comm. v. Simels, 48 F.3d 640, 651 (2d Cir. 1995). Nevertheless, this explanation for not considering Harper's interest in effective representation seems bewildering, even if one accepts the court's apparent assumption that the represented person's interest in effective representation is not one of the interests generally protected by DR 7-104(A)(1). A tension between the interests of different parties underlies not only DR 7-104(A)(1), but also many of the disciplinary rules that place limits on zealous representation. Once courts determine to adopt such rules to regulate lawyers' professional conduct, they have no choice but to resolve such conflicts. In any case, the Simels court determined to give weight to the interest of Simels's client in effective representation as a relevant consideration of policy. Having weighed this interest for one class of defendants - those awaiting trial - it should have weighed this interest for the other affected class of defendants, i.e., those who were cooperating with the prosecution.
303. See Simels, 48 F.3d at 651.
304. In other contexts, such as lawyer malpractice cases, expert witnesses customarily testify about community norms relating to the practice of law. Such testimony might have established whether criminal defense lawyers have traditionally sought evidence from represented witnesses or defendants or whether Simels's conduct was aberrational, as the prosecution appears to have assumed when it referred Simels to the grievance committee. There is no indication, however, that testimony on this issue was provided at any stage of the Simels case.
305. Moreover, the court's suggestion that it is a traditional practice for criminal defense lawyers to have ex parte communications with represented witnesses and potential defendants seems somewhat inconsistent with its endorsement of the view that DR 7-104(A)(1) "'provid[es] parties with [a] rule that most would choose to follow anyway.'" " Simels, 48 F.3d at 647 (quoting Leubsdorf, supra note 41, at 686-87).
306. Especially in white collar cases, lawyers representing subjects or targets of a criminal investigation customarily seek information from potential witnesses and, on occasion, attempt to influence those witnesses' accounts, either to develop evidence that may be used at trial or, more often, as part of an effort to stave off the filing of criminal charges. See generally KENNETH MANN, DEFENDING WHITE-COLLAR CRIME 37-100 (1985) (surveying and analyzing how white collar criminal defense lawyers conduct investigations prior to indictment). Prior to Simels, these lawyers might have hesitated to communicate ex parte with potential witnesses who had retained counsel in connection with the investigation or who, as employees of a corporation that was a subject of the investigation, might be considered to be represented by corporate counsel. The Simels decision, however, gives defense lawyers in the Second Circuit carte blanche to interview potential witnesses, whether or not they are represented, prior to the filing of criminal charges. The court's permissive reading of the no-contact rule will also benefit some defendants who have been charged with a crime and are awaiting a criminal trial, as Simels's client was when Simels contacted Harper.
307. See Simels, 48 F.3d at 651.
308. See, e.g., New York County 676, supra note 172.
309. See, e.g., In re Thompson, 492 A.2d 866, 867 (D.C. 1985).
310. See, e.g., United States v. Dennis, 843 F.2d 652 (2d Cir. 1988).
311. See, e.g., MANN, supra note 232, at 124-56 (discussing ways to control client disclosures to third parties).
312. In United States v. Arrington, 867 F.2d 122 (2d Cir.), cert. denied, 493 U.S. 817 (1989), the court determined that Simels had properly been disqualified when he sought to use the affidavit obtained from Harper to defend his client, because Simels had thereby become a potential witness. The decision demonstrates the wisdom of ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, THE DEFENSE FUNCTION, Standard 4.3(d) (1974) [hereinafter ABA STANDARDS], which provides: Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present his impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person. Id. Standard 4.3(f).
313. Grievance Comm. v. Simels, 48 F.3d 640, 651 (2d Cir. 1995). The court warned that: [I]t is incumbent upon defense attorneys to instruct clients in Harper's position not to risk foregoing the benefits of a cooperation agreement by talking to, or by signing statements at the insistence of, another defense attorney. Many defendants are not sophisticated; most, however, are sophisticated enough to understand the risks of jeopardizing a cooperation agreement and potentially subjecting themselves to perjury charges. Id.
314. Id.
315. See infra note 247.
316. The possibility that other lawyers' clients will choose to cooperate with the government's investigation creates a similar type of uncertainty. See generally Richman, supra note 227, at 89-90.
317. Defense lawyers recognize the importance of cooperation among lawyers for defendants in multidefendant cases. For example, a lawyer who represented one of 22 defendants who were acquitted after a 22 month trial recently observed: You have absolutely no choice, if you want to win these cases, but to work closely with your fellow defense counsel and their clients. If you don't, you will surely lose. You can not afford to have any additional enemies in the courtroom acting out of malice or out of ignorance. "Uncensored" CJA Seminar: Basic to Advanced Practice, 9 Crim. Prac. Man. (BNA) 99, 103 (Mar. 1, 1995) (quoting Henry Asbill). Judicial decisions recognize that defense lawyers share information, divide investigative tasks, plan strategy together, and divide tasks at trial. See, e.g., United States v. Zackson, 6 F.3d 911, 919 (2d Cir. 1993) (sharing of discovery material). Moreover, the law generally favors cooperation among counsel for parties aligned in interest on the theory that such cooperation promotes effective representation and, in turn, truth-seeking. See, e.g., Raytheon Co. v. Superior Court, 256 Cal. Rptr. 425, 428-29 (Cal. Ct. App. 1989) (indicating that attorney-client and work product privileges are not necessarily waived upon disclosure of documents to codefendants with whom the client has a commonality of interest). Thus, the attorney-client privilege has been extended to protect disclosures of client confidences among counsel representing parties with a common interest. In order to receive the benefit of the privilege, criminal defense lawyers increasingly enter into formal agreements, termed "joint defense" agreements, which memorialize the terms of their cooperation. See generally Daniel J. Capra, The Attorney-Client Privilege in Common Representations, 20 TRIAL L.Q. 20 (1989) (describing the mechanics of a joint defense and the possible ethical problems that its use can create); Patricia G. Wells, A Survey of Attorney-Client Privilege in Joint Defense, 35 U. MIAMI L. REV. 321 (1981) (explaining the role of the attorney-client privilege in a joint defense); Susan K. Rushing, Note, Separating the Joint-Defense Doctrine from the Attorney-Client Privilege, 68 TEX. L. REV. 1273 (1990) (focusing on the need for a joint-defense privilege); Note, The Attorney-Client Privilege in Multiple Party Situations, 8 COLUM. J.L. & SOC. PROBS. 156 (1972) (reviewing the common law of attorney-client privilege in multiple party situations). Lawyers who undertake "joint defense" agreements may respond to Simels by including a provision barring participants from contacting each others' clients without permission.
318. Defense lawyers recognize the importance of cooperation among lawyers for defendants in multidefendant cases. For example, a lawyer who represented one of 22 defendants who were acquitted after a 22 month trial recently observed: You have absolutely no choice, if you want to win these cases, but to work closely with your fellow defense counsel and their clients. If you don't, you will surely lose. You can not afford to have any additional enemies in the courtroom acting out of malice or out of ignorance. "Uncensored" CJA Seminar: Basic to Advanced Practice, 9 Crim. Prac. Man. (BNA) 99, 103 (Mar. 1, 1995) (quoting Henry Asbill). Judicial decisions recognize that defense lawyers share information, divide investigative tasks, plan strategy together, and divide tasks at trial. See, e.g., United States v. Zackson, 6 F.3d 911, 919 (2d Cir. 1993) (sharing of discovery material). Moreover, the law generally favors cooperation among counsel for parties aligned in interest on the theory that such cooperation promotes effective representation and, in turn, truth-seeking. See, e.g., Raytheon Co. v. Superior Court, 256 Cal. Rptr. 425, 428-29 (Cal. Ct. App. 1989) (indicating that attorney-client and work product privileges are not necessarily waived upon disclosure of documents to codefendants with whom the client has a commonality of interest). Thus, the attorney-client privilege has been extended to protect disclosures of client confidences among counsel representing parties with a common interest. In order to receive the benefit of the privilege, criminal defense lawyers increasingly enter into formal agreements, termed "joint defense" agreements, which memorialize the terms of their cooperation. See generally Daniel J. Capra, The Attorney-Client Privilege in Common Representations, 20 TRIAL L.Q. 20 (1989) (describing the mechanics of a joint defense and the possible ethical problems that its use can create); Patricia G. Wells, A Survey of Attorney-Client Privilege in Joint Defense, 35 U. MIAMI L. REV. 321 (1981) (explaining the role of the attorney-client privilege in a joint defense); Susan K. Rushing, Note, Separating the Joint-Defense Doctrine from the Attorney-Client Privilege, 68 TEX. L. REV. 1273 (1990) (focusing on the need for a joint-defense privilege); Note, The Attorney-Client Privilege in Multiple Party Situations, 8 COLUM. J.L. & SOC. PROBS. 156 (1972) (reviewing the common law of attorney-client privilege in multiple party situations). Lawyers who undertake "joint defense" agreements may respond to Simels by including a provision barring participants from contacting each others' clients without permission.
319. Defense lawyers recognize the importance of cooperation among lawyers for defendants in multidefendant cases. For example, a lawyer who represented one of 22 defendants who were acquitted after a 22 month trial recently observed: You have absolutely no choice, if you want to win these cases, but to work closely with your fellow defense counsel and their clients. If you don't, you will surely lose. You can not afford to have any additional enemies in the courtroom acting out of malice or out of ignorance. "Uncensored" CJA Seminar: Basic to Advanced Practice, 9 Crim. Prac. Man. (BNA) 99, 103 (Mar. 1, 1995) (quoting Henry Asbill). Judicial decisions recognize that defense lawyers share information, divide investigative tasks, plan strategy together, and divide tasks at trial. See, e.g., United States v. Zackson, 6 F.3d 911, 919 (2d Cir. 1993) (sharing of discovery material). Moreover, the law generally favors cooperation among counsel for parties aligned in interest on the theory that such cooperation promotes effective representation and, in turn, truth-seeking. See, e.g., Raytheon Co. v. Superior Court, 256 Cal. Rptr. 425, 428-29 (Cal. Ct. App. 1989) (indicating that attorney-client and work product privileges are not necessarily waived upon disclosure of documents to codefendants with whom the client has a commonality of interest). Thus, the attorney-client privilege has been extended to protect disclosures of client confidences among counsel representing parties with a common interest. In order to receive the benefit of the privilege, criminal defense lawyers increasingly enter into formal agreements, termed "joint defense" agreements, which memorialize the terms of their cooperation. See generally Daniel J. Capra, The Attorney-Client Privilege in Common Representations, 20 TRIAL L.Q. 20 (1989) (describing the mechanics of a joint defense and the possible ethical problems that its use can create); Patricia G. Wells, A Survey of Attorney-Client Privilege in Joint Defense, 35 U. MIAMI L. REV. 321 (1981) (explaining the role of the attorney-client privilege in a joint defense); Susan K. Rushing, Note, Separating the Joint-Defense Doctrine from the Attorney-Client Privilege, 68 TEX. L. REV. 1273 (1990) (focusing on the need for a joint-defense privilege); Note, The Attorney-Client Privilege in Multiple Party Situations, 8 COLUM. J.L. & SOC. PROBS. 156 (1972) (reviewing the common law of attorney-client privilege in multiple party situations). Lawyers who undertake "joint defense" agreements may respond to Simels by including a provision barring participants from contacting each others' clients without permission.
320. Defense lawyers recognize the importance of cooperation among lawyers for defendants in multidefendant cases. For example, a lawyer who represented one of 22 defendants who were acquitted after a 22 month trial recently observed: You have absolutely no choice, if you want to win these cases, but to work closely with your fellow defense counsel and their clients. If you don't, you will surely lose. You can not afford to have any additional enemies in the courtroom acting out of malice or out of ignorance. "Uncensored" CJA Seminar: Basic to Advanced Practice, 9 Crim. Prac. Man. (BNA) 99, 103 (Mar. 1, 1995) (quoting Henry Asbill). Judicial decisions recognize that defense lawyers share information, divide investigative tasks, plan strategy together, and divide tasks at trial. See, e.g., United States v. Zackson, 6 F.3d 911, 919 (2d Cir. 1993) (sharing of discovery material). Moreover, the law generally favors cooperation among counsel for parties aligned in interest on the theory that such cooperation promotes effective representation and, in turn, truth-seeking. See, e.g., Raytheon Co. v. Superior Court, 256 Cal. Rptr. 425, 428-29 (Cal. Ct. App. 1989) (indicating that attorney-client and work product privileges are not necessarily waived upon disclosure of documents to codefendants with whom the client has a commonality of interest). Thus, the attorney-client privilege has been extended to protect disclosures of client confidences among counsel representing parties with a common interest. In order to receive the benefit of the privilege, criminal defense lawyers increasingly enter into formal agreements, termed "joint defense" agreements, which memorialize the terms of their cooperation. See generally Daniel J. Capra, The Attorney-Client Privilege in Common Representations, 20 TRIAL L.Q. 20 (1989) (describing the mechanics of a joint defense and the possible ethical problems that its use can create); Patricia G. Wells, A Survey of Attorney-Client Privilege in Joint Defense, 35 U. MIAMI L. REV. 321 (1981) (explaining the role of the attorney-client privilege in a joint defense); Susan K. Rushing, Note, Separating the Joint-Defense Doctrine from the Attorney-Client Privilege, 68 TEX. L. REV. 1273 (1990) (focusing on the need for a joint-defense privilege); Note, The Attorney-Client Privilege in Multiple Party Situations, 8 COLUM. J.L. & SOC. PROBS. 156 (1972) (reviewing the common law of attorney-client privilege in multiple party situations). Lawyers who undertake "joint defense" agreements may respond to Simels by including a provision barring participants from contacting each others' clients without permission.
321. Defense lawyers recognize the importance of cooperation among lawyers for defendants in multidefendant cases. For example, a lawyer who represented one of 22 defendants who were acquitted after a 22 month trial recently observed: You have absolutely no choice, if you want to win these cases, but to work closely with your fellow defense counsel and their clients. If you don't, you will surely lose. You can not afford to have any additional enemies in the courtroom acting out of malice or out of ignorance. "Uncensored" CJA Seminar: Basic to Advanced Practice, 9 Crim. Prac. Man. (BNA) 99, 103 (Mar. 1, 1995) (quoting Henry Asbill). Judicial decisions recognize that defense lawyers share information, divide investigative tasks, plan strategy together, and divide tasks at trial. See, e.g., United States v. Zackson, 6 F.3d 911, 919 (2d Cir. 1993) (sharing of discovery material). Moreover, the law generally favors cooperation among counsel for parties aligned in interest on the theory that such cooperation promotes effective representation and, in turn, truth-seeking. See, e.g., Raytheon Co. v. Superior Court, 256 Cal. Rptr. 425, 428-29 (Cal. Ct. App. 1989) (indicating that attorney-client and work product privileges are not necessarily waived upon disclosure of documents to codefendants with whom the client has a commonality of interest). Thus, the attorney-client privilege has been extended to protect disclosures of client confidences among counsel representing parties with a common interest. In order to receive the benefit of the privilege, criminal defense lawyers increasingly enter into formal agreements, termed "joint defense" agreements, which memorialize the terms of their cooperation. See generally Daniel J. Capra, The Attorney-Client Privilege in Common Representations, 20 TRIAL L.Q. 20 (1989) (describing the mechanics of a joint defense and the possible ethical problems that its use can create); Patricia G. Wells, A Survey of Attorney-Client Privilege in Joint Defense, 35 U. MIAMI L. REV. 321 (1981) (explaining the role of the attorney-client privilege in a joint defense); Susan K. Rushing, Note, Separating the Joint-Defense Doctrine from the Attorney-Client Privilege, 68 TEX. L. REV. 1273 (1990) (focusing on the need for a joint-defense privilege); Note, The Attorney-Client Privilege in Multiple Party Situations, 8 COLUM. J.L. & SOC. PROBS. 156 (1972) (reviewing the common law of attorney-client privilege in multiple party situations). Lawyers who undertake "joint defense" agreements may respond to Simels by including a provision barring participants from contacting each others' clients without permission.
322. It may still be unclear how state court disciplinary committees will regard such contacts by defense lawyers in federal criminal proceedings. State authorities in New York may interpret DR 7-104(A)(1) more broadly, to proscribe the conduct that Simels deemed permissible, and prosecute criminal defense lawyers licensed by the state for violating the state disciplinary rule. The Simels opinion might discourage the enforcement of state disciplinary rules in this way but does not explicitly foreclose it.
323. The DOJ has made this argument in justifying its regulation. See supra note 121.
324. Grievance Comm. v. Simels, 48 F.3d 640, 644 (2d Cir. 1995) (emphasis added); see also id. ("If such substantial modifications are to be made, they should occur only after careful consideration by the representative branches of the federal government.").
325. See, e.g., id. ("The Committee's interpretation . . . raises important issues of policy affecting . . . the ability of defense counsel to provide the effective assistance and zealous representation that the Sixth Amendment and DR 7-101, respectively, guarantee to criminal defendants."); id. at 650 (noting the court "balanc[ed] the purposes served by DR 7-104(A)(1) against the overriding concern of a defendant's Sixth Amendment right to the effective assistance of counsel and a lawyer's ethical duty of zealous advocacy"); id. at 651 (noting that by interviewing a represented witness in search of impeachment material or exculpatory evidence, the defense "attorney is providing the effective defense and zealous representation required by the Sixth Amendment and DR 7-101, respectively").
326. See, e.g., Strickland v. Washington, 466 U.S. 668, 691 (1984) ("[C]ounsel has a duty to make reasonable investigations . . . ."); Walker v. Mitchell, 587 F. Supp. 1432 (E.D. Va. 1984) (discussing circumstances under which a defense lawyer must investigate a particular defense); see also Bruce A. Green, Note, A Functional Analysis of the Effective Assistance of Counsel, 80 COLUM. L. REV. 1053, 1078 n.164 (1980) (contending that inadequacy of investigation should be relevant only insofar as it impairs lawyer's performance).
327. See Geders v. United States, 425 U.S. 80, 91 (1976); see also Herring v. New York, 422 U.S. 853, 857 (1975) (stating that the right to effective assistance of counsel "mean[s] that there [are] no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process").
328. In Simels, the court of appeals had no need to concede that it was doing more, or doing something other, than simply interpreting a disciplinary provision that had been incorporated by reference in a district court's local rule. It would have to do so, however, if a district court within the circuit were later to adopt a disciplinary rule that unambiguously reached a result opposite from the one reached in Simels - for example, a rule that explicitly bars defense lawyers from contacting witnesses or potential defendants who are represented by counsel. In that event, the court of appeals would have to determine whether to strike down the rule as a matter of its own supervisory authority over lawyer practice, on the ground that the district court exceeded its own authority in adopting the rule, or on the ground that the rule contravenes the Sixth Amendment right to counsel. It is virtually inconceivable, however, that a district court would put the court of appeals to this test.
329. See 48 F.3d at 649-51.
330. Apparently, this is how the drafters of the rule meant it to be read. One commentator explains: "Although the matter is not entirely clear under the Code, probably DR 7-104(A)(1) and, clearly, MR 4.2 prohibit contact with any represented person, including those whose interests are apparently not adverse to the interests of an existing client of the lawyer." WOLFRAM, supra note 4, § 11.6.2 (footnotes omitted). This commentator further explains: "The lawyerism party sometimes refers only to parties in litigation but evidently is here intended to refer broadly to any 'person' represented by a lawyer in a matter. Vide 'party of the first part' in ancient contracts." Id. § 11.6.2 n.33; see also ABA Op. 95-396, supra note 116, at 6-9 (interpreting "party" in MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.2 (1983) to mean "person"). In August 1995, the ABA amended Model Rule 4.2 to replace the term "party" with "person," in order to clarify that this is the appropriate reading. See GILLERS & SIMON, supra note 45, at 266-68 (excerpting ABA report).
331. Apparently, this is how the drafters of the rule meant it to be read. One commentator explains: "Although the matter is not entirely clear under the Code, probably DR 7-104(A)(1) and, clearly, MR 4.2 prohibit contact with any represented person, including those whose interests are apparently not adverse to the interests of an existing client of the lawyer." WOLFRAM, supra note 4, § 11.6.2 (footnotes omitted). This commentator further explains: "The lawyerism party sometimes refers only to parties in litigation but evidently is here intended to refer broadly to any 'person' represented by a lawyer in a matter. Vide 'party of the first part' in ancient contracts." Id. § 11.6.2 n.33; see also ABA Op. 95-396, supra note 116, at 6-9 (interpreting "party" in MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.2 (1983) to mean "person"). In August 1995, the ABA amended Model Rule 4.2 to replace the term "party" with "person," in order to clarify that this is the appropriate reading. See GILLERS & SIMON, supra note 45, at 266-68 (excerpting ABA report).
332. See supra note 191 and accompanying text.
333. See Simels, 48 F.3d at 646-47. Courts have interpreted the requirement of adversity for the purpose of other rules. See, e.g., United States v. Harwood, 998 F.2d 91, 97 (2d Cir. 1993) (interpreting FED. R. EVID. 801(d)(2)(A)).
334. The Simels opinion strongly suggested this distinction in emphasizing that: Harper was a cooperating witness and in name only would have been a possible codefendant or "party" in [the] criminal proceeding [that might be brought against Davis for his involvement in the shooting of a government witness]. . . . [B]y merely naming a cooperating witness as a codefendant, the government could cut off a defendant's ability to contact a represented "codefendant" even though that person would not likely be a "codefendant" at trial. Simels, 48 F.3d at 650.
335. See ABA Op. 95-396, supra note 116, at 6 & n.11.
336. See United States v. Santiago-Lugo, 162 F.R.D. 11 (D.P.R. 1995).
337. See supra note 190 and accompanying text.
338. Simels, 48 F.3d at 650.
339. Id.
340. Id. at 651.
341. See Kirby v. Illinois, 406 U.S. 682, 688-89 (1972); In re Grand Jury Subpoenas, 906 F.2d 1485, 1493 (10th Cir. 1990).
342. See supra note 251 and accompanying text.
343. Even after a trial begins, a defendant in a multi-defendant trial may choose to plead guilty and testify for the government. Thus, from the perspective of a defendant's lawyer, there is never certainty that an individual will remain a codefendant and not become a witness.
344. See supra notes 245-250 and accompanying text.
345. Simels, 48 F.3d at 651.
346. At the same time, however, exempting codefendants from the reach of DR 7-104(A)(1) would appear contrary to a different policy consideration that clearly motivated the Simels decision, although it was not identified explicitly. Implicit in Simels was a concern for preserving symmetry between defense and prosecutorial practices. Although the issue before the court was the propriety of a defense lawyer's ex parte communications with a represented person, the court undertook an extensive review of prior decisions interpreting DR 7-104(A)(1) as applied to prosecutors. See id. at 647. In doing so, the court referred to prosecutorial conduct in a manner implying that its decision was driven by a concern for how the rule applies to prosecutors as well as defense lawyers. See id.. By interpreting "party" in the disciplinary rule to authorize defense lawyers' communications with witnesses and potential defendants, the court afforded defense lawyers the same investigative opportunity it had previously afforded federal prosecutors, albeit by interpreting other terms of DR 7-104(A)(1). See United States v. Hammad, 858 F.2d 834, 840 (2d Cir. 1988) (stating that prosecutors are "authorized by law" to seek to elicit statements from a represented defendant prior to indictment), cert. denied, 498 U.S. 871 (1990); see also United States v. Thompson, 35 F.3d 100 (2d Cir. 1994) (ruling that DR 7-104(A)(1) did not apply to law enforcement agent performing investigative function); United States v. De Villio, 983 F.2d 1185 (2d Cir. 1993) (finding no violation of DR 7-104(A)(1) where government arranged for codefendant to record incriminating conversations with defendants); United States v. Schwimmer, 882 F.2d 22 (2d Cir. 1989) (finding no violation of DR 7-104(A)(1) where prosecutor questioned before a grand jury a convicted defendant during pendency of that defendant's appeal), cert. denied, 493 U.S. 1071 (1990). It thereby preserved the legitimacy of its prior decisions narrowly interpreting the rule as applied to federal prosecutors. The federal prosecutors' interest in seeking evidence of guilt seems no more compelling than the defendant's interest in seeking evidence of innocence. Having previously found the prosecution's interest compelling enough to permit prosecutors to communicate directly with represented persons before they have been indicted, the court would have been hard put to justify striking the opposite balance in the context of investigations by criminal defense lawyers. In the case of indicted codefendants, by contrast, the interest in preserving a "level playing field" would argue for applying the rule to indicted codefendants. Clearly, indicted defendants are "parties" vis-a-vis the government. Insofar as DR 7-104(A)(1) applies to prosecutors after the recent DOJ regulation, it almost certainly proscribes communications with indicted defendants about the subject of the pending charges. Allowing defense lawyers to contact indicted codefendants would thus afford them an investigative opportunity denied to prosecutors. If the court in Simels was implicitly concerned about interpreting DR 7-104(A)(1) to avoid providing one side a procedural advantage, this concern would cut in favor of defining codefendants as "parties," notwithstanding that the court's explicit concerns cut the other way.
347. See generally McCabe, supra note 34, at 1658-64 (recounting the history of promulgation of federal rules of practice and procedure).
348. Rules Enabling Act of 1934, ch. 651, 48 Stat. 1064 (1934) (codified as amended at 28 U.S.C. §§ 331, 2071-77 (1994)).
349. FED. R. CIV. P. 86(a).
350. FED. R. CRIM. P. 59.
351. See Act of July 11, 1958, Pub. L. No. 85-513, 72 Stat. 356 (codified at 28 U.S.C. § 331 (1994)).
352. See McCabe, supra note 34, at 1659.
353. See id. at 1658 & n.10 (citing authority).
354. Federal courts may adopt rules of professional conduct pursuant to their supervisory authority over the practice of law. See supra note 7; see also Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718, 724 (6th Cir.) ("Federal courts have the inherent authority to discipline attorneys practicing before them . . . ."), cert. denied, 508 U.S. 940 (1993); Paul E. Iacono Structural Eng'r, Inc. v. Humphrey, 722 F.2d 435, 439 (9th Cir.) ("In the absence of rules promulgated by higher authorities in the judicial system, the district courts are free to regulate the conduct of lawyers appearing before them."), cert. denied, 464 U.S. 851 (1983). Additionally, they have authority to do so pursuant to 28 U.S.C. § 2071(a) (1994), which provides: "The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business."
355. See supra note 13 and accompanying text.
356. See McCabe, supra note 34, at 1658-64.
357. See supra note 34.
358. See McCabe, supra note 34, at 1664-66.
359. See id. at 1669-73.
360. See id. at 1674-75 ("[T]he Court's enormous prestige clearly contributes to the legitimacy and credibility of the process.").
361. See, e.g., FED. R. EVID. 201, 403, 608(b), 609(a) & (b), 611(a) & (b), 614(a), 705, 706(a), 1003; FED. R. CIV. P. 6(b), 12(f), 13(f), 14(a), 15(a) & (b), 16(a), 19(b), 20(b), 24(b).
362. See McCabe, supra note 34, at 1678-81.
363. See id. at 1678-79 & nn.114-16 (citing Stephen B. Burbank, Ignorance and Procedural Law Reform: A Call for a Moratorium, 59 BROOK. L. REV. 841 (1993); John P. Frank, The Rules of Civil Procedure - Agenda for Reform, 137 U. PA. L. REV. 1883, 1884-85 (1989); Michael E. Tigar, Pretrial Case Management Under the Amended Rules: Too Many Words for a Good Idea, 14 REV. LITIG. 137, 138 (1994)).
364. See id. at 1678-79 & nn.114-16 (citing Stephen B. Burbank, Ignorance and Procedural Law Reform: A Call for a Moratorium, 59 BROOK. L. REV. 841 (1993); John P. Frank, The Rules of Civil Procedure - Agenda for Reform, 137 U. PA. L. REV. 1883, 1884-85 (1989); Michael E. Tigar, Pretrial Case Management Under the Amended Rules: Too Many Words for a Good Idea, 14 REV. LITIG. 137, 138 (1994)).
365. See id. at 1678-79 & nn.114-16 (citing Stephen B. Burbank, Ignorance and Procedural Law Reform: A Call for a Moratorium, 59 BROOK. L. REV. 841 (1993); John P. Frank, The Rules of Civil Procedure - Agenda for Reform, 137 U. PA. L. REV. 1883, 1884-85 (1989); Michael E. Tigar, Pretrial Case Management Under the Amended Rules: Too Many Words for a Good Idea, 14 REV. LITIG. 137, 138 (1994)).
366. Cf. Coquillette Report, supra note 13, at 36 ("The American Bar Association . . . would probably prefer to see a national standard for all
367. See supra note 143 (discussing state judges' opposition to DOJ regulation).
368. Academic authorities on legal ethics have made a cottage industry of serving as "ethics experts," opining on the meaning of unclear ethical rules in opinion letters and in litigation. See Monroe Freedman, Crusading for Legal Ethics, LEGAL TIMES, July 10, 1995, at 25 ("Expert witnesses on lawyers' and judges' ethics charge as much as $500 an hour for their time, and some law professors double and triple their academic salaries by consulting and testifying about ethics."). Some have argued that obtaining advice from an individual expert, with whom the inquiring lawyer would have an attorney-client privilege, is preferable to obtaining advice from an ethics committee. Because statements to an ethics committee generally would not be privileged, an attorney would usually hesitate to provide it with the kind of detailed information necessary to an informed decision on matters of complexity. See Experts Examine Function of Legal Ethics Opinions, 7 Laws. Man. on Prof. Conduct (ABA/BNA) 2, 36-37 (Feb. 13, 1991) (citing comments of Professor Geoffrey C. Hazard, Jr., at a meeting of the National Organization of Bar Counsel in February 1991). Increasingly, lawyers have also turned to ethics experts to give opinions to judicial or disciplinary bodies about the scope of ethical rules. See, e.g., Williams v. Warden, State Prison, 586 A.2d 582, 586 (Conn. 1991) (noting the testimony of experts on lawyers' professional responsibility); Monsanto Co. v. Aetna Casualty & Sur. Co., 593 A.2d 1013, 1016-17 (Del. Super. Ct. 1990) (stating that defendants submitted the affidavits of ethics experts); Committee of Professional Ethics v. Baudino, 452 N.W.2d 455, 459 (Iowa 1990) (noting testimony of ethics expert); In re Gaulkin, 351 A.2d 740, 746 (N.J. 1976) (citing the affidavit of a draftsman for the ABA Special Committee on Standards of Judicial Conduct); see also Stephen Gillers, What We Talked About When We Talked About Ethics: A Critical View of the Model Rules, 46 OHIO ST. L.J. 243, 244 & n.13 (1985) (noting the proliferation of ethics experts); Joseph J. Portuondo, Abusive Tax Shelters, Legal Malpractice, and Revised Formal Ethics Opinion 346: Does Revised 346 Enable Third Party Investors to Recover from Tax Attorneys Who Violate Its Standards?, 61 NOTRE DAME L. REV. 220, 238-39 (1986) (noting the increased use of ethics experts in the courtroom). On occasion, courts have reacted unfavorably to the submission of expert affidavits or testimony on matters of legal ethics. See, e.g., United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987) ("Supplying such affidavits . . . seems rather presumptuous, considering that the affiants have not been asked by the Court for their views . . . ."). More often, however, the expert opinions have been considered helpful. See, e.g., Doe v. Federal Grievance Comm., 847 F.2d 57, 62 (2d Cir. 1988) (relying on an ethics expert's testimony in interpreting DR 7-102(B)); Fisons Corp. v. Atochem North America, Inc., No. 90 CIV. 1080 (JMC), 1990 U.S. Dist. LEXIS 15284, at *20-*22 (S.D.N.Y. Nov. 14, 1990) (relying on the opinions of experts in order to determine whether lawyers met the requirements of DR 5-105(C)). Why, as a theoretical matter, courts should rely on expert testimony on legal ethics - a subject governed by domestic law, and judge-made law at that - has never fully been explained. See Green, supra note 6, at 521. The value of law professors as ethics experts turns in large measure on the ambiguity of the prevailing rules of professional conduct. Academic experts can claim insight into the meaning of ethics rules that others do not share based, for example, on their familiarity with the drafting process and on other indicia of intent that are not easily accessible.
369. Academic authorities on legal ethics have made a cottage industry of serving as "ethics experts," opining on the meaning of unclear ethical rules in opinion letters and in litigation. See Monroe Freedman, Crusading for Legal Ethics, LEGAL TIMES, July 10, 1995, at 25 ("Expert witnesses on lawyers' and judges' ethics charge as much as $500 an hour for their time, and some law professors double and triple their academic salaries by consulting and testifying about ethics."). Some have argued that obtaining advice from an individual expert, with whom the inquiring lawyer would have an attorney-client privilege, is preferable to obtaining advice from an ethics committee. Because statements to an ethics committee generally would not be privileged, an attorney would usually hesitate to provide it with the kind of detailed information necessary to an informed decision on matters of complexity. See Experts Examine Function of Legal Ethics Opinions, 7 Laws. Man. on Prof. Conduct (ABA/BNA) 2, 36-37 (Feb. 13, 1991) (citing comments of Professor Geoffrey C. Hazard, Jr., at a meeting of the National Organization of Bar Counsel in February 1991). Increasingly, lawyers have also turned to ethics experts to give opinions to judicial or disciplinary bodies about the scope of ethical rules. See, e.g., Williams v. Warden, State Prison, 586 A.2d 582, 586 (Conn. 1991) (noting the testimony of experts on lawyers' professional responsibility); Monsanto Co. v. Aetna Casualty & Sur. Co., 593 A.2d 1013, 1016-17 (Del. Super. Ct. 1990) (stating that defendants submitted the affidavits of ethics experts); Committee of Professional Ethics v. Baudino, 452 N.W.2d 455, 459 (Iowa 1990) (noting testimony of ethics expert); In re Gaulkin, 351 A.2d 740, 746 (N.J. 1976) (citing the affidavit of a draftsman for the ABA Special Committee on Standards of Judicial Conduct); see also Stephen Gillers, What We Talked About When We Talked About Ethics: A Critical View of the Model Rules, 46 OHIO ST. L.J. 243, 244 & n.13 (1985) (noting the proliferation of ethics experts); Joseph J. Portuondo, Abusive Tax Shelters, Legal Malpractice, and Revised Formal Ethics Opinion 346: Does Revised 346 Enable Third Party Investors to Recover from Tax Attorneys Who Violate Its Standards?, 61 NOTRE DAME L. REV. 220, 238-39 (1986) (noting the increased use of ethics experts in the courtroom). On occasion, courts have reacted unfavorably to the submission of expert affidavits or testimony on matters of legal ethics. See, e.g., United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987) ("Supplying such affidavits . . . seems rather presumptuous, considering that the affiants have not been asked by the Court for their views . . . ."). More often, however, the expert opinions have been considered helpful. See, e.g., Doe v. Federal Grievance Comm., 847 F.2d 57, 62 (2d Cir. 1988) (relying on an ethics expert's testimony in interpreting DR 7-102(B)); Fisons Corp. v. Atochem North America, Inc., No. 90 CIV. 1080 (JMC), 1990 U.S. Dist. LEXIS 15284, at *20-*22 (S.D.N.Y. Nov. 14, 1990) (relying on the opinions of experts in order to determine whether lawyers met the requirements of DR 5-105(C)). Why, as a theoretical matter, courts should rely on expert testimony on legal ethics - a subject governed by domestic law, and judge-made law at that - has never fully been explained. See Green, supra note 6, at 521. The value of law professors as ethics experts turns in large measure on the ambiguity of the prevailing rules of professional conduct. Academic experts can claim insight into the meaning of ethics rules that others do not share based, for example, on their familiarity with the drafting process and on other indicia of intent that are not easily accessible.
370. Academic authorities on legal ethics have made a cottage industry of serving as "ethics experts," opining on the meaning of unclear ethical rules in opinion letters and in litigation. See Monroe Freedman, Crusading for Legal Ethics, LEGAL TIMES, July 10, 1995, at 25 ("Expert witnesses on lawyers' and judges' ethics charge as much as $500 an hour for their time, and some law professors double and triple their academic salaries by consulting and testifying about ethics."). Some have argued that obtaining advice from an individual expert, with whom the inquiring lawyer would have an attorney-client privilege, is preferable to obtaining advice from an ethics committee. Because statements to an ethics committee generally would not be privileged, an attorney would usually hesitate to provide it with the kind of detailed information necessary to an informed decision on matters of complexity. See Experts Examine Function of Legal Ethics Opinions, 7 Laws. Man. on Prof. Conduct (ABA/BNA) 2, 36-37 (Feb. 13, 1991) (citing comments of Professor Geoffrey C. Hazard, Jr., at a meeting of the National Organization of Bar Counsel in February 1991). Increasingly, lawyers have also turned to ethics experts to give opinions to judicial or disciplinary bodies about the scope of ethical rules. See, e.g., Williams v. Warden, State Prison, 586 A.2d 582, 586 (Conn. 1991) (noting the testimony of experts on lawyers' professional responsibility); Monsanto Co. v. Aetna Casualty & Sur. Co., 593 A.2d 1013, 1016-17 (Del. Super. Ct. 1990) (stating that defendants submitted the affidavits of ethics experts); Committee of Professional Ethics v. Baudino, 452 N.W.2d 455, 459 (Iowa 1990) (noting testimony of ethics expert); In re Gaulkin, 351 A.2d 740, 746 (N.J. 1976) (citing the affidavit of a draftsman for the ABA Special Committee on Standards of Judicial Conduct); see also Stephen Gillers, What We Talked About When We Talked About Ethics: A Critical View of the Model Rules, 46 OHIO ST. L.J. 243, 244 & n.13 (1985) (noting the proliferation of ethics experts); Joseph J. Portuondo, Abusive Tax Shelters, Legal Malpractice, and Revised Formal Ethics Opinion 346: Does Revised 346 Enable Third Party Investors to Recover from Tax Attorneys Who Violate Its Standards?, 61 NOTRE DAME L. REV. 220, 238-39 (1986) (noting the increased use of ethics experts in the courtroom). On occasion, courts have reacted unfavorably to the submission of expert affidavits or testimony on matters of legal ethics. See, e.g., United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987) ("Supplying such affidavits . . . seems rather presumptuous, considering that the affiants have not been asked by the Court for their views . . . ."). More often, however, the expert opinions have been considered helpful. See, e.g., Doe v. Federal Grievance Comm., 847 F.2d 57, 62 (2d Cir. 1988) (relying on an ethics expert's testimony in interpreting DR 7-102(B)); Fisons Corp. v. Atochem North America, Inc., No. 90 CIV. 1080 (JMC), 1990 U.S. Dist. LEXIS 15284, at *20-*22 (S.D.N.Y. Nov. 14, 1990) (relying on the opinions of experts in order to determine whether lawyers met the requirements of DR 5-105(C)). Why, as a theoretical matter, courts should rely on expert testimony on legal ethics - a subject governed by domestic law, and judge-made law at that - has never fully been explained. See Green, supra note 6, at 521. The value of law professors as ethics experts turns in large measure on the ambiguity of the prevailing rules of professional conduct. Academic experts can claim insight into the meaning of ethics rules that others do not share based, for example, on their familiarity with the drafting process and on other indicia of intent that are not easily accessible.
371. Academic authorities on legal ethics have made a cottage industry of serving as "ethics experts," opining on the meaning of unclear ethical rules in opinion letters and in litigation. See Monroe Freedman, Crusading for Legal Ethics, LEGAL TIMES, July 10, 1995, at 25 ("Expert witnesses on lawyers' and judges' ethics charge as much as $500 an hour for their time, and some law professors double and triple their academic salaries by consulting and testifying about ethics."). Some have argued that obtaining advice from an individual expert, with whom the inquiring lawyer would have an attorney-client privilege, is preferable to obtaining advice from an ethics committee. Because statements to an ethics committee generally would not be privileged, an attorney would usually hesitate to provide it with the kind of detailed information necessary to an informed decision on matters of complexity. See Experts Examine Function of Legal Ethics Opinions, 7 Laws. Man. on Prof. Conduct (ABA/BNA) 2, 36-37 (Feb. 13, 1991) (citing comments of Professor Geoffrey C. Hazard, Jr., at a meeting of the National Organization of Bar Counsel in February 1991). Increasingly, lawyers have also turned to ethics experts to give opinions to judicial or disciplinary bodies about the scope of ethical rules. See, e.g., Williams v. Warden, State Prison, 586 A.2d 582, 586 (Conn. 1991) (noting the testimony of experts on lawyers' professional responsibility); Monsanto Co. v. Aetna Casualty & Sur. Co., 593 A.2d 1013, 1016-17 (Del. Super. Ct. 1990) (stating that defendants submitted the affidavits of ethics experts); Committee of Professional Ethics v. Baudino, 452 N.W.2d 455, 459 (Iowa 1990) (noting testimony of ethics expert); In re Gaulkin, 351 A.2d 740, 746 (N.J. 1976) (citing the affidavit of a draftsman for the ABA Special Committee on Standards of Judicial Conduct); see also Stephen Gillers, What We Talked About When We Talked About Ethics: A Critical View of the Model Rules, 46 OHIO ST. L.J. 243, 244 & n.13 (1985) (noting the proliferation of ethics experts); Joseph J. Portuondo, Abusive Tax Shelters, Legal Malpractice, and Revised Formal Ethics Opinion 346: Does Revised 346 Enable Third Party Investors to Recover from Tax Attorneys Who Violate Its Standards?, 61 NOTRE DAME L. REV. 220, 238-39 (1986) (noting the increased use of ethics experts in the courtroom). On occasion, courts have reacted unfavorably to the submission of expert affidavits or testimony on matters of legal ethics. See, e.g., United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987) ("Supplying such affidavits . . . seems rather presumptuous, considering that the affiants have not been asked by the Court for their views . . . ."). More often, however, the expert opinions have been considered helpful. See, e.g., Doe v. Federal Grievance Comm., 847 F.2d 57, 62 (2d Cir. 1988) (relying on an ethics expert's testimony in interpreting DR 7-102(B)); Fisons Corp. v. Atochem North America, Inc., No. 90 CIV. 1080 (JMC), 1990 U.S. Dist. LEXIS 15284, at *20-*22 (S.D.N.Y. Nov. 14, 1990) (relying on the opinions of experts in order to determine whether lawyers met the requirements of DR 5-105(C)). Why, as a theoretical matter, courts should rely on expert testimony on legal ethics - a subject governed by domestic law, and judge-made law at that - has never fully been explained. See Green, supra note 6, at 521. The value of law professors as ethics experts turns in large measure on the ambiguity of the prevailing rules of professional conduct. Academic experts can claim insight into the meaning of ethics rules that others do not share based, for example, on their familiarity with the drafting process and on other indicia of intent that are not easily accessible.
372. Academic authorities on legal ethics have made a cottage industry of serving as "ethics experts," opining on the meaning of unclear ethical rules in opinion letters and in litigation. See Monroe Freedman, Crusading for Legal Ethics, LEGAL TIMES, July 10, 1995, at 25 ("Expert witnesses on lawyers' and judges' ethics charge as much as $500 an hour for their time, and some law professors double and triple their academic salaries by consulting and testifying about ethics."). Some have argued that obtaining advice from an individual expert, with whom the inquiring lawyer would have an attorney-client privilege, is preferable to obtaining advice from an ethics committee. Because statements to an ethics committee generally would not be privileged, an attorney would usually hesitate to provide it with the kind of detailed information necessary to an informed decision on matters of complexity. See Experts Examine Function of Legal Ethics Opinions, 7 Laws. Man. on Prof. Conduct (ABA/BNA) 2, 36-37 (Feb. 13, 1991) (citing comments of Professor Geoffrey C. Hazard, Jr., at a meeting of the National Organization of Bar Counsel in February 1991). Increasingly, lawyers have also turned to ethics experts to give opinions to judicial or disciplinary bodies about the scope of ethical rules. See, e.g., Williams v. Warden, State Prison, 586 A.2d 582, 586 (Conn. 1991) (noting the testimony of experts on lawyers' professional responsibility); Monsanto Co. v. Aetna Casualty & Sur. Co., 593 A.2d 1013, 1016-17 (Del. Super. Ct. 1990) (stating that defendants submitted the affidavits of ethics experts); Committee of Professional Ethics v. Baudino, 452 N.W.2d 455, 459 (Iowa 1990) (noting testimony of ethics expert); In re Gaulkin, 351 A.2d 740, 746 (N.J. 1976) (citing the affidavit of a draftsman for the ABA Special Committee on Standards of Judicial Conduct); see also Stephen Gillers, What We Talked About When We Talked About Ethics: A Critical View of the Model Rules, 46 OHIO ST. L.J. 243, 244 & n.13 (1985) (noting the proliferation of ethics experts); Joseph J. Portuondo, Abusive Tax Shelters, Legal Malpractice, and Revised Formal Ethics Opinion 346: Does Revised 346 Enable Third Party Investors to Recover from Tax Attorneys Who Violate Its Standards?, 61 NOTRE DAME L. REV. 220, 238-39 (1986) (noting the increased use of ethics experts in the courtroom). On occasion, courts have reacted unfavorably to the submission of expert affidavits or testimony on matters of legal ethics. See, e.g., United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987) ("Supplying such affidavits . . . seems rather presumptuous, considering that the affiants have not been asked by the Court for their views . . . ."). More often, however, the expert opinions have been considered helpful. See, e.g., Doe v. Federal Grievance Comm., 847 F.2d 57, 62 (2d Cir. 1988) (relying on an ethics expert's testimony in interpreting DR 7-102(B)); Fisons Corp. v. Atochem North America, Inc., No. 90 CIV. 1080 (JMC), 1990 U.S. Dist. LEXIS 15284, at *20-*22 (S.D.N.Y. Nov. 14, 1990) (relying on the opinions of experts in order to determine whether lawyers met the requirements of DR 5-105(C)). Why, as a theoretical matter, courts should rely on expert testimony on legal ethics - a subject governed by domestic law, and judge-made law at that - has never fully been explained. See Green, supra note 6, at 521. The value of law professors as ethics experts turns in large measure on the ambiguity of the prevailing rules of professional conduct. Academic experts can claim insight into the meaning of ethics rules that others do not share based, for example, on their familiarity with the drafting process and on other indicia of intent that are not easily accessible.
373. Judicial rulemaking on a more modest level has drawn support in recent years as an approach to developing rules of professional conduct. See, e.g., In re Opinion 668 of the Advisory Comm. on Professional Ethics, 633 A.2d 959, 960 (N.J. 1993) (reserving final determination of ethical restraints on ex parte interviews of employees of a corporate litigant until receipt of a report of a special committee that was appointed to assess the effects of any rule that the court might adopt); Establishing Ethical Standards, supra note 53, at 44-45 (endorsing "the federal district courts' adoption of ethical standards" for lawyers in federal criminal cases based on recommendations "from a committee established for this purpose which would be composed of members of various constituencies"); see also United States v. Ward, 895 F. Supp. 1000, 1005 & n.4 (N.D. Ill. 1995) ("A host of questions plagues any attempt to apply Rule 4.2 or its predecessor to prosecutors in the pre-indictment, non-custodial setting present in this case. . . . If there is to be national uniformity in this area, this Court believes it can only come through the Supreme Court's exercise of its rule-making power to craft a uniform rule for federal criminal prosecutions."). One federal court, the District Court for the Eastern District of New York, appointed a group two years ago to "undertak[e] a detailed, rule-by-rule analysis of the rules of ethics that should apply in the Court." See Eastern District Studies Ethic Rules, Welcomes Comments, N.Y.L.J., Jan. 18, 1994, at 48. The group was authorized to consider not only recommending the adoption of existing rules or sets of rules, but also "recommend[ing] some entirely different rules." Id. Although the group's mandate allows the possibility of fashioning rules that are more detailed, and less ambiguous, than those now in effect, the group is unlikely to take on such a demanding task exclusively for the benefit of a single judicial district. This course might economically be undertaken by the Judicial Conference, however, since its work product would ultimately apply throughout the federal courts. Further, while individual districts might adopt rules that are more appropriate than existing rules and that provide greater guidance to lawyers who know that they are subject to the rules of that court, these sets of rules will not address the problem of interdistrict balkanization.
374. Judicial rulemaking on a more modest level has drawn support in recent years as an approach to developing rules of professional conduct. See, e.g., In re Opinion 668 of the Advisory Comm. on Professional Ethics, 633 A.2d 959, 960 (N.J. 1993) (reserving final determination of ethical restraints on ex parte interviews of employees of a corporate litigant until receipt of a report of a special committee that was appointed to assess the effects of any rule that the court might adopt); Establishing Ethical Standards, supra note 53, at 44-45 (endorsing "the federal district courts' adoption of ethical standards" for lawyers in federal criminal cases based on recommendations "from a committee established for this purpose which would be composed of members of various constituencies"); see also United States v. Ward, 895 F. Supp. 1000, 1005 & n.4 (N.D. Ill. 1995) ("A host of questions plagues any attempt to apply Rule 4.2 or its predecessor to prosecutors in the pre-indictment, non-custodial setting present in this case. . . . If there is to be national uniformity in this area, this Court believes it can only come through the Supreme Court's exercise of its rule-making power to craft a uniform rule for federal criminal prosecutions."). One federal court, the District Court for the Eastern District of New York, appointed a group two years ago to "undertak[e] a detailed, rule-by-rule analysis of the rules of ethics that should apply in the Court." See Eastern District Studies Ethic Rules, Welcomes Comments, N.Y.L.J., Jan. 18, 1994, at 48. The group was authorized to consider not only recommending the adoption of existing rules or sets of rules, but also "recommend[ing] some entirely different rules." Id. Although the group's mandate allows the possibility of fashioning rules that are more detailed, and less ambiguous, than those now in effect, the group is unlikely to take on such a demanding task exclusively for the benefit of a single judicial district. This course might economically be undertaken by the Judicial Conference, however, since its work product would ultimately apply throughout the federal courts. Further, while individual districts might adopt rules that are more appropriate than existing rules and that provide greater guidance to lawyers who know that they are subject to the rules of that court, these sets of rules will not address the problem of interdistrict balkanization.
375. See, e.g., Coquillette Report, supra note 13, at 1-3.
376. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.5(d) (1994) (contingent fee may not be charged in domestic relations or criminal case).
377. See, e.g., id. Rule 3.1 (lawyer may not file frivolous claims or make frivolous contentions in a proceeding); id. Rule 3.2 (a lawyer shall make reasonable efforts to expedite litigation); id. Rule 3.3 (duty of candor to a tribunal); id. Rule 3.4 (fairness to opposing party and counsel); id. Rule 3.5 (relations to the tribunal); id. Rule 3.7 (lawyer as witness).
378. See, e.g., id. Rule 1.1 (competence); id. Rule 1.2 (scope of representation); id. Rule 1.3 (diligence); id. Rule 1.4 (communication with client); id. Rule 1.6 (confidentiality); id. Rule 1.7 (conflicts of interest).
379. See, e.g., id. Rules 8.1-8.4 (prohibiting lawyers from engaging in certain conduct in both personal and professional contexts); MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 1-101 to -103 (1981) (identifying requirements applicable to lawyers in their personal and professional roles).
380. See, e.g., Burbank, supra note 21, at 975; Green & Coleman, supra note 139, at 967-68; Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 149 (1993); Wilkins, supra note 22, at 1151.
381. See, e.g., Burbank, supra note 21, at 975; Green & Coleman, supra note 139, at 967-68; Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 149 (1993); Wilkins, supra note 22, at 1151.
382. See, e.g., Burbank, supra note 21, at 975; Green & Coleman, supra note 139, at 967-68; Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 149 (1993); Wilkins, supra note 22, at 1151.
383. See, e.g., Burbank, supra note 21, at 975; Green & Coleman, supra note 139, at 967-68; Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 149 (1993); Wilkins, supra note 22, at 1151.
384. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
385. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
386. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
387. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
388. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
389. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
390. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
391. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
392. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
393. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
394. Optimally, professional norms will take account of different lawyering roles both in a broad sense - distinguishing, for example, between civil litigation and criminal advocacy or between advocacy and counseling, see, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 669 (1978) (arguing that in a nonadversarial setting different principles of professional behavior should apply); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUMAN RTS. 1, 12 (1975) (asserting "the amoral behavior of the criminal defense lawyers is justifiable" but not that of other lawyers) - and in a highly specific sense. See, e.g., Wilkins, supra note 22, at 1150-51. Commentators such as David Wilkins and Stanley Sporkin correctly perceive that the "universal" rules comprising the existing codes of professional conduct are antithetical to the ideal of context-specific professional norms. Their solution is the development of separate codes for lawyers serving in different roles. See, e.g., Sporkin, supra note 294; Wilkins, supra note 22, at 1216; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930 (1993). Taking a different approach, bar organizations have sought to develop recommendations or guidelines for how lawyers in specific settings should represent clients within the confines of the generally applicable rules, as well as, in some instances, how those rules should be amended. See, e.g., ABA STANDARDS, supra note 238, Standard 3-1.1 to -6.2 (addressing the prosecution function); id., Standard 4-1.1 to -8.6 (addressing the defense function); ACTEC Commentaries on the Model Rules of Professional Conduct, 28 REAL PROP. PROB. & TR. J. 865, 866 (1994); Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, in 64 FORDHAM L. REV. 1281 (1996); Proceedings of the Conference on Ethical Issues in Representing Older Clients, Recommendations of the Conference, in 62 FORDHAM L. REV. 989 (1994); Proposed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 FAM. L.Q. 375 (1995); see also GILLERS & SIMON, supra note 45.
395. See supra note 211.
396. See, e.g., United States v. Ryans, 903 F.2d 731, 740 (10th Cir.) (holding that "DR 7-104(A)(1)'s proscriptions do not attach during the investigative process before the initiation of criminal proceedings"), cert. denied, 498 U.S. 855 (1990); United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983) (holding that DR 7-104(A)(1) "does not require government investigatory agencies to refrain from contact with a criminal suspect because he or she previously had retained counsel"); United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.) (concluding that DR 7-104(A)(1) was not intended to "stymie undercover investigations when the subject retained counsel"), cert. denied, 464 U.S. 852 (1983).
397. See JETHRO K. LIEBERMAN, CRISIS AT THE BAR: LAWYERS' UNETHICAL ETHICS AND WHAT TO DO ABOUT IT 216-17 (1978) (recommending that a neutral body, such as the Judicial Conference, draft professional rules to avoid professional self-interest inherent in bar association rules).
398. See, e.g., RICHARD L. ABEL, AMERICAN LAWYERS 119 (1989) ("During the next sixty years [after the adoption of the ABA Canons in 1908], much of what passed for professional self-regulation actually was preoccupied with limitations on what lawyers could do to promote themselves."); Abel, supra note 146, at 686-87; Cramton & Udell, supra note 25, at 317 ("There is strong evidence that lawyers when they regulate themselves are inclined to take positions that favor the use of lawyers and enhance their authority and prestige."); Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702, 704 (1977) (arguing that "lawyers' ethics are consistently self-serving"); Deborah L. Rhode, Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 TEX. L. REV. 689, 692 (1981) (asserting that professional codes "consistently resolved conflicts between professional and societal objectives in favor of those doing the resolving").
399. See, e.g., RICHARD L. ABEL, AMERICAN LAWYERS 119 (1989) ("During the next sixty years [after the adoption of the ABA Canons in 1908], much of what passed for professional self-regulation actually was preoccupied with limitations on what lawyers could do to promote themselves."); Abel, supra note 146, at 686-87; Cramton & Udell, supra note 25, at 317 ("There is strong evidence that lawyers when they regulate themselves are inclined to take positions that favor the use of lawyers and enhance their authority and prestige."); Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702, 704 (1977) (arguing that "lawyers' ethics are consistently self-serving"); Deborah L. Rhode, Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 TEX. L. REV. 689, 692 (1981) (asserting that professional codes "consistently resolved conflicts between professional and societal objectives in favor of those doing the resolving").
400. See, e.g., RICHARD L. ABEL, AMERICAN LAWYERS 119 (1989) ("During the next sixty years [after the adoption of the ABA Canons in 1908], much of what passed for professional self-regulation actually was preoccupied with limitations on what lawyers could do to promote themselves."); Abel, supra note 146, at 686-87; Cramton & Udell, supra note 25, at 317 ("There is strong evidence that lawyers when they regulate themselves are inclined to take positions that favor the use of lawyers and enhance their authority and prestige."); Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702, 704 (1977) (arguing that "lawyers' ethics are consistently self-serving"); Deborah L. Rhode, Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 TEX. L. REV. 689, 692 (1981) (asserting that professional codes "consistently resolved conflicts between professional and societal objectives in favor of those doing the resolving").
401. See, e.g., RICHARD L. ABEL, AMERICAN LAWYERS 119 (1989) ("During the next sixty years [after the adoption of the ABA Canons in 1908], much of what passed for professional self-regulation actually was preoccupied with limitations on what lawyers could do to promote themselves."); Abel, supra note 146, at 686-87; Cramton & Udell, supra note 25, at 317 ("There is strong evidence that lawyers when they regulate themselves are inclined to take positions that favor the use of lawyers and enhance their authority and prestige."); Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702, 704 (1977) (arguing that "lawyers' ethics are consistently self-serving"); Deborah L. Rhode, Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 TEX. L. REV. 689, 692 (1981) (asserting that professional codes "consistently resolved conflicts between professional and societal objectives in favor of those doing the resolving").
402. See, e.g., RICHARD L. ABEL, AMERICAN LAWYERS 119 (1989) ("During the next sixty years [after the adoption of the ABA Canons in 1908], much of what passed for professional self-regulation actually was preoccupied with limitations on what lawyers could do to promote themselves."); Abel, supra note 146, at 686-87; Cramton & Udell, supra note 25, at 317 ("There is strong evidence that lawyers when they regulate themselves are inclined to take positions that favor the use of lawyers and enhance their authority and prestige."); Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702, 704 (1977) (arguing that "lawyers' ethics are consistently self-serving"); Deborah L. Rhode, Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 TEX. L. REV. 689, 692 (1981) (asserting that professional codes "consistently resolved conflicts between professional and societal objectives in favor of those doing the resolving").
403. See, e.g., Otis, supra note 119, at A13 (arguing that it is inappropriate to subject federal prosecutors to state disciplinary sanctions because "state bars are dominated by private lawyers - i.e., in criminal practice, by defense lawyers").
404. See Ted Schneyer, Professional Discipline for Law Firms?, 77 CORNELL L. REV. 1, 6 (1991) (noting that "more than eighty percent of the lawyers disciplined in California, Illinois, and the District of Columbia were sole practioners, and none practiced in a firm with over seven lawyers").
405. See supra notes 66-67 and accompanying text (discussing reaction to Thornburgh Memorandum); supra part I.C.2 (discussing subjectivity of DOJ regulation).
406. See supra part II.B.1. Indeed, adjudication affords less opportunity to consider the different perspectives of federal judges themselves. In adjudication, only the views of the few federal judges involved in deciding the case are considered. Rulemaking, however, would allow for input from any federal judge with expertise in an issue. Comment from federal judges is especially important because, as the Simels court noted, questions of professional conduct may implicate "important federal policy concerns." Grievance Comm. v. Simels, 48 F.3d 640, 645 (2d Cir. 1995). For example, as in Simels, questions arising in criminal cases may implicate federal law enforcement interests. Similarly, questions arising in class actions - e.g., whether class counsel may solicit potential class members, whether class counsel may pay the expenses of litigation, or whether a former class counsel may represent class members in opposition to a proposed settlement - implicate policies underlying Federal Rule of Civil Procedure 23. And, questions arising in discrimination cases - e.g., whether "testers" may pose as prospective tenants and secretly tape-record conversations with the landlord - implicate interests underlying federal civil-rights law. Standards of professional conduct may also implicate federal constitutional concerns, as in the cases of those standards governing out-of-court speech, advertising and solicitation, and criticism of judges. Perhaps most importantly, professional standards - particularly those governing conduct during trial - may bear in the federal courts' own interest in the fair administration of justice.
407. See supra note 146.
408. See infra notes 311-323 and accompanying text.
409. See generally WOLFRAM, supra note 4, § 2.6.6 (discussing ethics committee opinions). For criticisms of bar association ethics opinions, see Jorge L. Carro, The Ethics Opinions of the Bar: A Valuable Contribution or an Exercise in Futility?, 26 IND. L. REV. 1 (1992); Ted Finman & Theodore Schneyer, The Role of the Bar Association Ethics Opinions in Regulating Lawyer Conduct: A Critique of the Work of the ABA Committee on Ethics and Professional Responsibility, 29 UCLA L. REV. 67 (1981); Charles W. Wolfram, Legal Ethics and the Restatement Process - The Sometimes-Uncomfortable Fit, 46 OKLA. L. REV. 13 (1993).
410. See generally WOLFRAM, supra note 4, § 2.6.6 (discussing ethics committee opinions). For criticisms of bar association ethics opinions, see Jorge L. Carro, The Ethics Opinions of the Bar: A Valuable Contribution or an Exercise in Futility?, 26 IND. L. REV. 1 (1992); Ted Finman & Theodore Schneyer, The Role of the Bar Association Ethics Opinions in Regulating Lawyer Conduct: A Critique of the Work of the ABA Committee on Ethics and Professional Responsibility, 29 UCLA L. REV. 67 (1981); Charles W. Wolfram, Legal Ethics and the Restatement Process - The Sometimes-Uncomfortable Fit, 46 OKLA. L. REV. 13 (1993).
411. See generally WOLFRAM, supra note 4, § 2.6.6 (discussing ethics
412. See generally WOLFRAM, supra note 4, § 2.6.6 (discussing ethics committee opinions). For criticisms of bar association ethics opinions, see Jorge L. Carro, The Ethics Opinions of the Bar: A Valuable Contribution or an Exercise in Futility?, 26 IND. L. REV. 1 (1992); Ted Finman & Theodore Schneyer, The Role of the Bar Association Ethics Opinions in Regulating Lawyer Conduct: A Critique of the Work of the ABA Committee on Ethics and Professional Responsibility, 29 UCLA L. REV. 67 (1981); Charles W. Wolfram, Legal Ethics and the Restatement Process - The Sometimes-Uncomfortable Fit, 46 OKLA. L. REV. 13 (1993).
413. Some have argued, however, that the lack of specificity and clarity in the disciplinary codes serves positive functions. For example, in addition to serving as a basis for disciplinary enforcement, the codes encourage lawyers to engage in moral reflection. Rules that are too precise leave no room for reflection. See generally Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223, 227-29, 240-43 (1993) (discussing the issues raised by substantive specificity in drafting professional rules).
414. See supra note 148.
415. See Grievance Comm. v. Simels, 48 F.3d 640, 651 (2d Cir. 1995).
416. See Green, supra note 225, at 689-90 (arguing for greater clarity, particularly when lawyer conduct approaches the lines of criminality); Coquillette Report, supra note 13, at 19 ("A lawyer's ability to practice law is more than a matter of honor, it is a livelihood, and a sanction that suspends that livelihood needs to be based on sufficient notice . . . ."). In the past, the disciplinary authorities have generally refrained from bringing proceedings based on conduct that is not clearly improper. See infra note 314 and accompanying text; see also Green, supra note 6, at 553 (asserting that attorneys should not be punished for violating ambiguous disciplinary provisions). In this respect, Simels is an exceptional case.
417. See Russell W. Damtoft, Note, Lawyer Disciplinary Standards: Broad vs. Narrow Proscriptions, 65 IOWA L. REV. 1386, 1413 (1980) (stating that interpretation of vague standards "lead[s] to a slowly developed, haphazardly organized, and frequently conflicting disciplinary code").
418. With respect to federal prosecutors, it has been observed: The public record suggests, however, that federal prosecutors are rarely, if ever, referred to federal grievance committees. Indeed, federal district judges who are concerned about possible wrongdoing by a federal prosecutor seem to be more inclined to refer the prosecutor to a state disciplinary committee than to a disciplinary committee of the district court. There are various possible explanations for this. First, federal courts have traditionally deferred to state licensing authorities to oversee the professional conduct of lawyers. Second, the district court disciplinary mechanisms tend to be ad hoc and unfunded, whereas the state court disciplinary mechanisms are professionally staffed and funded by the state. Additionally, district court discipline adds to the federal court's workload. For all these reasons, district courts would tend to invoke the federal disciplinary processes only in exceptional cases and would view the state processes as the ordinary mechanism for dealing with wrongdoing by federal litigators, including federal prosecutors. Green, supra note 135, at 83-84 (citations omitted). These observations are true of federal litigators in general.
419. Professor Mullinex urges the "creat[ion of] federal disciplinary committees within the federal districts or circuits" as a superior alternative to addressing allegations of attorney misconduct in the context of ongoing federal litigation. Mullenix, supra note 13, at 131. Setting separate disciplinary mechanisms within each federal district or circuit would not remedy the problem of inconsistent federal court interpretations of identical ethical rules, however. Each federal court's disciplinary body would remain free to interpret the rules differently. This problem of inconsistent judicial interpretations could be addressed by establishing a single federal agency with disciplinary authority over practice in all federal courts or by allowing the disciplinary decisions of separate agencies to be reviewed by a single federal court. This Article takes the view, however, that the preferable road to uniformity is through the adoption of far less ambiguous rules in the first place, because rulemaking is better than adjudication as a means of determining the appropriate standard of conduct in an area of controversy or uncertainty. See supra part III.B.
420. See Cramton & Udell, supra note 25, at 304 ("Disciplinary bodies have limited resources, which leads them to concentrate on egregious and intentional professional violations that harm the offender's client. . . . Disciplinary authorities are accustomed to leaving most issues of lawyer conduct to other remedial settings."). Few publicly reported disciplinary decisions involve uncertain applications of ethical standards. Those few tend to fall into one of three categories. First, there are a number of cases involving lawyer advertising that raise interpretive or constitutional questions. See, e.g., Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) (concluding that a state may not categorically prohibit lawyers from soliciting business by sending truthful and nondeceptive letters to potential clients known to possess particular legal problems). Disciplinary counsels' willingness to proceed in such cases, notwithstanding a general reluctance to test unclear standards, may have any of several explanations: the highly visible nature of the lawyer's questionable conduct may precipitate public concern to which authorities may feel they must respond; the lawyer personally may encourage disciplinary proceedings as a way of definitively resolving uncertainties about whether the advertisement is proper; and disciplinary counsel may react to lawyer advertising with a distaste carried over from the days when advertising and soliciting were the principal bugaboos of the organized bar. Second, disciplinary authorities seem more willing to proceed based on uncertain standards in cases that involve other conduct that, like lawyer advertising, is highly visible, either because it occurred in a well publicized litigation or because it was undertaken by a political figure or other high profile personality. See, e.g., In re Westfall, 808 S.W.2d 829, 829 (Mo.), cert denied, 502 U.S. 1009 (1991); Kunstler v. Galligan, 571 N.Y.S.2d 930 (N.Y. App. Div.), aff'd, 587 N.E.2d 286 (N.Y. 1991). This exception to the general policy of restraint is attributable not only to the authorities' perceived need to respond to public concern about visible wrongdoing, but also, at least in some cases, to the political biases of those authorities. Finally, disciplinary counsel seem more willing to allege that a lawyer has violated uncertain standards in cases in which the lawyer has allegedly committed other, clear disciplinary infractions. See, e.g., In re Blatt, 324 A.2d 15, 18 (N.J. 1974) (counseling potential witnesses to remain silent constitutes " 'conduct prejudicial to the administration of justice' in violation of DR 1102(5)"). The "piling on" of allegations that may be challenged on interpretive grounds may seem like "gilding the lily," but this approach makes sense for several reasons. First, the amount of resources expended to present additional charges in disciplinary proceedings that will be commenced in any event are negligible in comparison to the amount of resources that would be expended to present a case that proceeded exclusively on a questionable legal theory. Second, it might be expected that a favorable interpretation is more likely to be obtained in a case in which the lawyer's other, clearly wrongful conduct labels him a malefactor. Finally, if an unfavorable interpretation is received in such a case, the prosecution as a whole may nevertheless be regarded as a victory, because the lawyer will have received a sanction on other grounds anyway.
421. See Cramton & Udell, supra note 25, at 305 n.41 ("Commentators report that even the most egregious prosecutorial misconduct, in violation of professional rules, generally does not result in disciplinary proceedings." (citing authority)); Green, supra note 135.
422. See Cramton & Udell, supra note 25, at 305 n.41 ("Commentators report that even the most egregious prosecutorial misconduct, in violation of professional rules, generally does not result in disciplinary proceedings." (citing authority)); Green, supra note 135.
423. Cf. Eric H. Steele & Raymond T. Nimmer, Lawyers, Clients, and Professional Regulation, 1976 AM. B. FOUND. RES. J. 917, 998 ("Disciplinary agencies apparently adopt a pattern of resource allocation similar to that of prosecutors in the criminal justice system. Prior sanctions, disciplinary or criminal, and multiple or sequential complaints are interpreted as an index of the credibility of the complaint and of the seriousness of the alleged deviance.").
424. See supra note 82 and accompanying text.
425. See supra note 193 and accompanying text.
426. See Wilkins, supra note 146, at 815-16; Coquillette Study, supra note 32, at 5 (stating that 16 categories of ethical rules were never addressed in published federal court decisions over a 5 year period).
427. See Wilkins, supra note 1, at 839 & n.168 (citing authority).
428. See, e.g., W.T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976) ("The business of the court is to dispose of litigation and not to act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it." (citation omitted)); Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037, 1046 n.4 (W.D. Mo. 1984) (asserting "alleged ethical violations should be left to federal or state disciplinary machinery unless the integrity of the judicial process is threatened"). See generally, Committee on Professional Responsibility, Suppressing Evidence Obtained in Violation of DR 7-104: If Hammad Is Right, Is the Civil Law Wrong?, 48 REC. ASS'N B. CITY N.Y. 431, 433 (1992) (citing W.T. Grant Co. for the proposition that the courts should not "act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it"); Green, supra note 6, at 540-41 n.195 (listing cases where courts have remarked on lawyers' conduct and others where courts have left the matter for disciplinary committees); Leonard E. Gross, Suppression of Evidence as a Remedy for Attorney Misconduct: Shall the Sins of the Attorney Be Visited on the Client?, 54 ALB. L. REV. 437 (1990) (examining whether the exclusionary rule might be applied to an attorney who engages in unethical misconduct during litigation); 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, 550-51 n.293 (1995) (listing cases supporting the belief that disciplinary proceedings are best left to the state bar).
429. See, e.g., W.T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976) ("The business of the court is to dispose of litigation and not to act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it." (citation omitted)); Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037, 1046 n.4 (W.D. Mo. 1984) (asserting "alleged ethical violations should be left to federal or state disciplinary machinery unless the integrity of the judicial process is threatened"). See generally, Committee on Professional Responsibility, Suppressing Evidence Obtained in Violation of DR 7-104: If Hammad Is Right, Is the Civil Law Wrong?, 48 REC. ASS'N B. CITY N.Y. 431, 433 (1992) (citing W.T. Grant Co. for the proposition that the courts should not "act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it"); Green, supra note 6, at 540-41 n.195 (listing cases where courts have remarked on lawyers' conduct and others where courts have left the matter for disciplinary committees); Leonard E. Gross, Suppression of Evidence as a Remedy for Attorney Misconduct: Shall the Sins of the Attorney Be Visited on the Client?, 54 ALB. L. REV. 437 (1990) (examining whether the exclusionary rule might be applied to an attorney who engages in unethical misconduct during litigation); 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, 550-51 n.293 (1995) (listing cases supporting the belief that disciplinary proceedings are best left to the state bar).
430. See, e.g., W.T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976) ("The business of the court is to dispose of litigation and not to act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it." (citation omitted)); Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037, 1046 n.4 (W.D. Mo. 1984) (asserting "alleged ethical violations should be left to federal or state disciplinary machinery unless the integrity of the judicial process is threatened"). See generally, Committee on Professional Responsibility, Suppressing Evidence Obtained in Violation of DR 7-104: If Hammad Is Right, Is the Civil Law Wrong?, 48 REC. ASS'N B. CITY N.Y. 431, 433 (1992) (citing W.T. Grant Co. for the proposition that the courts should not "act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it"); Green, supra note 6, at 540-41 n.195 (listing cases where courts have remarked on lawyers' conduct and others where courts have left the matter for disciplinary committees); Leonard E. Gross, Suppression of Evidence as a Remedy for Attorney Misconduct: Shall the Sins of the Attorney Be Visited on the Client?, 54 ALB. L. REV. 437 (1990) (examining whether the exclusionary rule might be applied to an attorney who engages in unethical misconduct during litigation); 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, 550-51 n.293 (1995) (listing cases supporting the belief that disciplinary proceedings are best left to the state bar).
431. See, e.g., W.T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976) ("The business of the court is to dispose of litigation and not to act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it." (citation omitted)); Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037, 1046 n.4 (W.D. Mo. 1984) (asserting "alleged ethical violations should be left to federal or state disciplinary machinery unless the integrity of the judicial process is threatened"). See generally, Committee on Professional Responsibility, Suppressing Evidence Obtained in Violation of DR 7-104: If Hammad Is Right, Is the Civil Law Wrong?, 48 REC. ASS'N B. CITY N.Y. 431, 433 (1992) (citing W.T. Grant Co. for the proposition that the courts should not "act as a general overseer of the ethics of those who practice here unless the questioned behavior taints the trial of the cause before it"); Green, supra note 6, at 540-41 n.195 (listing cases where courts have remarked on lawyers' conduct and others where courts have left the matter for disciplinary committees); Leonard E. Gross, Suppression of Evidence as a Remedy for Attorney Misconduct: Shall the Sins of the Attorney Be Visited on the Client?, 54 ALB. L. REV. 437 (1990) (examining whether the exclusionary rule might be applied to an attorney who engages in unethical misconduct during litigation); 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, 550-51 n.293 (1995) (listing cases supporting the belief that disciplinary proceedings are best left to the state bar).
432. See Coquillette Study, supra note 32, at 4. Even the frequent litigation over disqualification motions has not substantially clarified the conflict-of-interest rules. On the contrary, to a large extent, litigation has fostered uncertainty because courts often apply a standard different from the one embodied in the professional codes. See, e.g., In re American Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992) (en banc) (disqualification motion is "'governed by the ethical rules announced by the national profession in light of the public interest and the litigants' rights'") (quoting In re Dresser Indus., Inc., 972 F.2d 540, 543 (5th Cir. 1992)), cert. denied, 113 S. Ct. 1262 (1993); Baird v. Hilton Hotel Corp., 771 F. Supp. 24, 26 (E.D.N.Y. 1991) (discussing the "Chinese Wall" exception to DR5-105(D)). See generally Burbank, supra note 21, at 975 (commenting that standards of conduct vary depending upon an attorney's role); Richardson, supra note 13, at 167-73 (addressing the uncertain relationship between violations of ethics rules and motions to disqualify opposing counsel).
433. See Coquillette Study, supra note 32, at 4. Even the frequent litigation over disqualification motions has not substantially clarified the conflict-of-interest rules. On the contrary, to a large extent, litigation has fostered uncertainty because courts often apply a standard different from the one embodied in the professional codes. See, e.g., In re American Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992) (en banc) (disqualification motion is "'governed by the ethical rules announced by the national profession in light of the public interest and the litigants' rights'") (quoting In re Dresser Indus., Inc., 972 F.2d 540, 543 (5th Cir. 1992)), cert. denied, 113 S. Ct. 1262 (1993); Baird v. Hilton Hotel Corp., 771 F. Supp. 24, 26 (E.D.N.Y. 1991) (discussing the "Chinese Wall" exception to DR5-105(D)). See generally Burbank, supra note 21, at 975 (commenting that standards of conduct vary depending upon an attorney's role); Richardson, supra note 13, at 167-73 (addressing the uncertain relationship between violations of ethics rules and motions to disqualify opposing counsel).
434. See supra part II.B.2.
435. See Coquillette Report, supra note 13, at 1-3.
436. For example, the no-contact rule has been interpreted in various ways in the context of a civil litigator's communications with employees of an adversary corporation. See infra note 328. Before a civil suit is filed, a lawyer might communicate ex parte with an employee who is outside the "control group," believing that the litigation will take place in a state in which such communications are permitted. If the litigation later occurs in a jurisdiction with a more restrictive interpretation of the no-contact rule, the lawyer might face disqualification or other sanctions. So far, however, reported decisions do not reflect that lawyers often face this problem.
437. See supra notes 16-18 and accompanying text.
438. Most jurisdictions' rules of ethics are identical in substance, if not in precise wording. Occasionally, courts assume that an outcome turns on the choice of the applicable ethical rule, see, e.g., White Consol. Indus., Inc. v. Island Kitchens, Inc., 884 F. Supp. 176, 179-80 (E.D. Pa. 1995) (discussing whether New York or Pennsylvania rules of professional conduct apply to a motion to withdraw as counsel). It is unlikely, however, that the choice of rule would often be outcome-determinative but for the fact that the rules of different jurisdictions have been interpreted differently and in ways that were not necessarily preordained by the rules themselves. Nevertheless, commentators typically illustrate the problem of "balkanization" by identifying the few ethical rules of different jurisdictions that are explicitly at odds with each other, such as rules governing attorney-client confidentiality that in some states require the disclosure of a client's intent to commit a fraud and in others forbid it. See, e.g., Zacharias, supra note 21, at 347 n.52. The ABA has likewise regarded "balkanization" principally as a problem of inconsistent rules, rather than inconsistent interpretations. This is reflected, for example, in the language of Model Rule 8.5 and accompanying commentary. Model Rule 8.5 is a choice-of-law provision establishing which jurisdiction's rules will govern a lawyer's conduct. The commentary explains that the rule addresses the problem that "[a] lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations." MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.5 cmt. (1995).
439. Opinions issued by bar association ethics committees demonstrate the vast potential for inconsistent interpretations. Ethics committees have taken differing approaches to questions such as: (1) whether a lawyer may use privileged material inadvertently provided by one's adversary, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-368 (1992) (lawyer who learns after reading privileged document that it was sent inadvertently must return it) with District of Columbia Bar Legal Ethics Comm., Op. 256 (1995) (once read, inadvertently sent material may be used); (2) whether a lawyer must disclose that the client has deliberately given a false answer in a deposition, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987) (disclosure is necessary to avoid assisting a criminal or fraudulent act by the client) with Philadelphia Bar Ass'n Professional Guidance Comm., Op. 95-3 (1995) (lawyer is not required to reveal client's perjury as long as lawyer does not submit client's deposition to tribunal); and (3) whether a lawyer may secretly tape-record conversations with others. Compare Texas State Bar Professional Ethics Comm., Op. 514 (1995) (lawyer may not secretly record telephone conversation with others) with New York County Lawyers' Comm. on Professional Ethics, Op. 696 (1993) (as a general rule, a lawyer may secretly record his conversation with another). This is best illustrated, however, by one of the normative problems for civil litigators that has occasioned the most discussion in recent years - the question of how the no-contact rule applies in a case in which the adversary is a corporation. Although the applicable rule adopted in different jurisdictions is often indistinguishable in substance and precise wording, courts of different jurisdictions have developed a range of inconsistent tests to determine which present and former officers and employees of a corporation may or may not be contacted under this rule. Judicial interpretations have included: (1) the rule categorically restricts ex parte communications with all former and present officers and employees of a corporate party, see Public Serv. Elec. & Gas Co. v. Associated Elec. & Gas Ins. Servs., 745 F. Supp. 1037, 1039 (D.N.J. 1990); Cagguila v. Wyeth Lab. Inc., 127 F.R.D. 653, 654 (E.D. Pa. 1989); (2) the relevant "facts and circumstances" must be weighed judicially to determine whether corporate counsel's presence at an interview is necessary to ensure that the corporation receives effective representation, see Morrison v. Brandeis Univ., 125 F.R.D. 14, 18 (D. Mass. 1989); Mompoint v. Lotus Dev. Corp., 110 F.R.D. 414, 418 (D. Mass. 1986); (3) the rule restricts communications only with members of the corporation's "control group" - top managers who make final decisions and top employees on whose advice they rely, see Fair Automotive Repair, Inc. v. Car-X Serv. Sys., Inc., 471 N.E.2d 554, 560-61 (Ill. App. Ct. 1984); (4) the rule applies only to communications with "managing speaking agents" - those with sufficient managerial authority to speak for and bind the corporation, see Chancellor v. Boeing Co., 678 F. Supp. 250, 253 (D. Kan. 1988); Frey v. Department of Health & Human Servs., 106 F.R.D. 32, 35-36 (E.D.N.Y. 1985); Wright v. Group Health Hosp., 691 P.2d 564, 569 (Wash. 1984); and (5) the rule applies only to the corporation's "alter egos," which include officers and employees who can bind the corporation, whose acts or omissions are imputed to the corporation, or who implement counsel's advice, see State v. Ciba-Geigy Corp., 589 A.2d 180, 185 (N.J. Super. 1991); Nieseg v. Team I, 558 N.E.2d 1030, 1035 (N.Y. 1990); Strawser v. Exxon Co., 843 P.2d 613, 621 (Wyo. 1992). See generally John E. Iole & John D. Goetz, Ethics of Procedure? A Discovery-Based Approach to Ex Parte Contacts with Former Employees of a Corporate Adversary, 68 NOTRE DAME L. REV. 81 (1992) (arguing that ex parte contacts with former employees are discovery problems, not ethics problems); Ernest F. Lidge III, The Ethics of Communicating with an Organization's Employees: An Analysis of the Unworkable "Hybrid" or "Multifactor" Managing-Speaking Agent, ABA, and Niesig Tests and a Proposal for a "Supervisor" Standard, 45 ARK. L. REV. 801 (1993) (proposing that "supervisors," as defined in the National Labor Relations Act, should be the focus of the ex parte contacts ban); Samuel R. Miller & Angelo J. Calfo, Ex Parte Contact with Employees and Former Employees of a Corporate Adversary: Is It Ethical?, 42 BUS. LAW. 1053 (1987) (recommending a complete ban on ex parte contacts for current employees and some former high level employees); Felicia R. Reid, Comment, Ethical Limitations on Investigating Employment Discrimination Claims: The Prohibition on Ex Parte Contact with a Defendant's Employees, 24 U.C. DAVIS L. REV. 1243 (1991)
440. Opinions issued by bar association ethics committees demonstrate the vast potential for inconsistent interpretations. Ethics committees have taken differing approaches to questions such as: (1) whether a lawyer may use privileged material inadvertently provided by one's adversary, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-368 (1992) (lawyer who learns after reading privileged document that it was sent inadvertently must return it) with District of Columbia Bar Legal Ethics Comm., Op. 256 (1995) (once read, inadvertently sent material may be used); (2) whether a lawyer must disclose that the client has deliberately given a false answer in a deposition, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987) (disclosure is necessary to avoid assisting a criminal or fraudulent act by the client) with Philadelphia Bar Ass'n Professional Guidance Comm., Op. 95-3 (1995) (lawyer is not required to reveal client's perjury as long as lawyer does not submit client's deposition to tribunal); and (3) whether a lawyer may secretly tape-record conversations with others. Compare Texas State Bar Professional Ethics Comm., Op. 514 (1995) (lawyer may not secretly record telephone conversation with others) with New York County Lawyers' Comm. on Professional Ethics, Op. 696 (1993) (as a general rule, a lawyer may secretly record his conversation with another). This is best illustrated, however, by one of the normative problems for civil litigators that has occasioned the most discussion in recent years - the question of how the no-contact rule applies in a case in which the adversary is a corporation. Although the applicable rule adopted in different jurisdictions is often indistinguishable in substance and precise wording, courts of different jurisdictions have developed a range of inconsistent tests to determine which present and former officers and employees of a corporation may or may not be contacted under this rule. Judicial interpretations have included: (1) the rule categorically restricts ex parte communications with all former and present officers and employees of a corporate party, see Public Serv. Elec. & Gas Co. v. Associated Elec. & Gas Ins. Servs., 745 F. Supp. 1037, 1039 (D.N.J. 1990); Cagguila v. Wyeth Lab. Inc., 127 F.R.D. 653, 654 (E.D. Pa. 1989); (2) the relevant "facts and circumstances" must be weighed judicially to determine whether corporate counsel's presence at an interview is necessary to ensure that the corporation receives effective representation, see Morrison v. Brandeis Univ., 125 F.R.D. 14, 18 (D. Mass. 1989); Mompoint v. Lotus Dev. Corp., 110 F.R.D. 414, 418 (D. Mass. 1986); (3) the rule restricts communications only with members of the corporation's "control group" - top managers who make final decisions and top employees on whose advice they rely, see Fair Automotive Repair, Inc. v. Car-X Serv. Sys., Inc., 471 N.E.2d 554, 560-61 (Ill. App. Ct. 1984); (4) the rule applies only to communications with "managing speaking agents" - those with sufficient managerial authority to speak for and bind the corporation, see Chancellor v. Boeing Co., 678 F. Supp. 250, 253 (D. Kan. 1988); Frey v. Department of Health & Human Servs., 106 F.R.D. 32, 35-36 (E.D.N.Y. 1985); Wright v. Group Health Hosp., 691 P.2d 564, 569 (Wash. 1984); and (5) the rule applies only to the corporation's "alter egos," which include officers and employees who can bind the corporation, whose acts or omissions are imputed to the corporation, or who implement counsel's advice, see State v. Ciba-Geigy Corp., 589 A.2d 180, 185 (N.J. Super. 1991); Nieseg v. Team I, 558 N.E.2d 1030, 1035 (N.Y. 1990); Strawser v. Exxon Co., 843 P.2d 613, 621 (Wyo. 1992). See generally John E. Iole & John D. Goetz, Ethics of Procedure? A Discovery-Based Approach to Ex Parte Contacts with Former Employees of a Corporate Adversary, 68 NOTRE DAME L. REV. 81 (1992) (arguing that ex parte contacts with former employees are discovery problems, not ethics problems); Ernest F. Lidge III, The Ethics of Communicating with an Organization's Employees: An Analysis of the Unworkable "Hybrid" or "Multifactor" Managing-Speaking Agent, ABA, and Niesig Tests and a Proposal for a "Supervisor" Standard, 45 ARK. L. REV. 801 (1993) (proposing that "supervisors," as defined in the National Labor Relations Act, should be the focus of the ex parte contacts ban); Samuel R. Miller & Angelo J. Calfo, Ex Parte Contact with Employees and Former Employees of a Corporate Adversary: Is It Ethical?, 42 BUS. LAW. 1053 (1987) (recommending a complete ban on ex parte contacts for current employees and some former high level employees); Felicia R. Reid, Comment, Ethical Limitations on Investigating Employment Discrimination Claims: The Prohibition on Ex Parte Contact with a Defendant's Employees, 24 U.C. DAVIS L. REV. 1243 (1991)
441. Opinions issued by bar association ethics committees demonstrate the vast potential for inconsistent interpretations. Ethics committees have taken differing approaches to questions such as: (1) whether a lawyer may use privileged material inadvertently provided by one's adversary, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-368 (1992) (lawyer who learns after reading privileged document that it was sent inadvertently must return it) with District of Columbia Bar Legal Ethics Comm., Op. 256 (1995) (once read, inadvertently sent material may be used); (2) whether a lawyer must disclose that the client has deliberately given a false answer in a deposition, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987) (disclosure is necessary to avoid assisting a criminal or fraudulent act by the client) with Philadelphia Bar Ass'n Professional Guidance Comm., Op. 95-3 (1995) (lawyer is not required to reveal client's perjury as long as lawyer does not submit client's deposition to tribunal); and (3) whether a lawyer may secretly tape-record conversations with others. Compare Texas State Bar Professional Ethics Comm., Op. 514 (1995) (lawyer may not secretly record telephone conversation with others) with New York County Lawyers' Comm. on Professional Ethics, Op. 696 (1993) (as a general rule, a lawyer may secretly record his conversation with another). This is best illustrated, however, by one of the normative problems for civil litigators that has occasioned the most discussion in recent years - the question of how the no-contact rule applies in a case in which the adversary is a corporation. Although the applicable rule adopted in different jurisdictions is often indistinguishable in substance and precise wording, courts of different jurisdictions have developed a range of inconsistent tests to determine which present and former officers and employees of a corporation may or may not be contacted under this rule. Judicial interpretations have included: (1) the rule categorically restricts ex parte communications with all former and present officers and employees of a corporate party, see Public Serv. Elec. & Gas Co. v. Associated Elec. & Gas Ins. Servs., 745 F. Supp. 1037, 1039 (D.N.J. 1990); Cagguila v. Wyeth Lab. Inc., 127 F.R.D. 653, 654 (E.D. Pa. 1989); (2) the relevant "facts and circumstances" must be weighed judicially to determine whether corporate counsel's presence at an interview is necessary to ensure that the corporation receives effective representation, see Morrison v. Brandeis Univ., 125 F.R.D. 14, 18 (D. Mass. 1989); Mompoint v. Lotus Dev. Corp., 110 F.R.D. 414, 418 (D. Mass. 1986); (3) the rule restricts communications only with members of the corporation's "control group" - top managers who make final decisions and top employees on whose advice they rely, see Fair Automotive Repair, Inc. v. Car-X Serv. Sys., Inc., 471 N.E.2d 554, 560-61 (Ill. App. Ct. 1984); (4) the rule applies only to communications with "managing speaking agents" - those with sufficient managerial authority to speak for and bind the corporation, see Chancellor v. Boeing Co., 678 F. Supp. 250, 253 (D. Kan. 1988); Frey v. Department of Health & Human Servs., 106 F.R.D. 32, 35-36 (E.D.N.Y. 1985); Wright v. Group Health Hosp., 691 P.2d 564, 569 (Wash. 1984); and (5) the rule applies only to the corporation's "alter egos," which include officers and employees who can bind the corporation, whose acts or omissions are imputed to the corporation, or who implement counsel's advice, see State v. Ciba-Geigy Corp., 589 A.2d 180, 185 (N.J. Super. 1991); Nieseg v. Team I, 558 N.E.2d 1030, 1035 (N.Y. 1990); Strawser v. Exxon Co., 843 P.2d 613, 621 (Wyo. 1992). See generally John E. Iole & John D. Goetz, Ethics of Procedure? A Discovery-Based Approach to Ex Parte Contacts with Former Employees of a Corporate Adversary, 68 NOTRE DAME L. REV. 81 (1992) (arguing that ex parte contacts with former employees are discovery problems, not ethics problems); Ernest F. Lidge III, The Ethics of Communicating with an Organization's Employees: An Analysis of the Unworkable "Hybrid" or "Multifactor" Managing-Speaking Agent, ABA, and Niesig Tests and a Proposal for a "Supervisor" Standard, 45 ARK. L. REV. 801 (1993) (proposing that "supervisors," as defined in the National Labor Relations Act, should be the focus of the ex parte contacts ban); Samuel R. Miller & Angelo J. Calfo, Ex Parte Contact with Employees and Former Employees of a Corporate Adversary: Is It Ethical?, 42 BUS. LAW. 1053 (1987) (recommending a complete ban on ex parte contacts for current employees and some former high level employees); Felicia R. Reid, Comment, Ethical Limitations on Investigating Employment Discrimination Claims: The Prohibition on Ex Parte Contact with a Defendant's Employees, 24 U.C. DAVIS L. REV. 1243 (1991)
442. Opinions issued by bar association ethics committees demonstrate the vast potential for inconsistent interpretations. Ethics committees have taken differing approaches to questions such as: (1) whether a lawyer may use privileged material inadvertently provided by one's adversary, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-368 (1992) (lawyer who learns after reading privileged document that it was sent inadvertently must return it) with District of Columbia Bar Legal Ethics Comm., Op. 256 (1995) (once read, inadvertently sent material may be used); (2) whether a lawyer must disclose that the client has deliberately given a false answer in a deposition, compare ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987) (disclosure is necessary to avoid assisting a criminal or fraudulent act by the client) with Philadelphia Bar Ass'n Professional Guidance Comm., Op. 95-3 (1995) (lawyer is not required to reveal client's perjury as long as lawyer does not submit client's deposition to tribunal); and (3) whether a lawyer may secretly tape-record conversations with others. Compare Texas State Bar Professional Ethics Comm., Op. 514 (1995) (lawyer may not secretly record telephone conversation with others) with New York County Lawyers' Comm. on Professional Ethics, Op. 696 (1993) (as a general rule, a lawyer may secretly record his conversation with another). This is best illustrated, however, by one of the normative problems for civil litigators that has occasioned the most discussion in recent years - the question of how the no-contact rule applies in a case in which the adversary is a corporation. Although the applicable rule adopted in different jurisdictions is often indistinguishable in substance and precise wording, courts of different jurisdictions have developed a range of inconsistent tests to determine which present and former officers and employees of a corporation may or may not be contacted under this rule. Judicial interpretations have included: (1) the rule categorically restricts ex parte communications with all former and present officers and employees of a corporate party, see Public Serv. Elec. & Gas Co. v. Associated Elec. & Gas Ins. Servs., 745 F. Supp. 1037, 1039 (D.N.J. 1990); Cagguila v. Wyeth Lab. Inc., 127 F.R.D. 653, 654 (E.D. Pa. 1989); (2) the relevant "facts and circumstances" must be weighed judicially to determine whether corporate counsel's presence at an interview is necessary to ensure that the corporation receives effective representation, see Morrison v. Brandeis Univ., 125 F.R.D. 14, 18 (D. Mass. 1989); Mompoint v. Lotus Dev. Corp., 110 F.R.D. 414, 418 (D. Mass. 1986); (3) the rule restricts communications only with members of the corporation's "control group" - top managers who make final decisions and top employees on whose advice they rely, see Fair Automotive Repair, Inc. v. Car-X Serv. Sys., Inc., 471 N.E.2d 554, 560-61 (Ill. App. Ct. 1984); (4) the rule applies only to communications with "managing speaking agents" - those with sufficient managerial authority to speak for and bind the corporation, see Chancellor v. Boeing Co., 678 F. Supp. 250, 253 (D. Kan. 1988); Frey v. Department of Health & Human Servs., 106 F.R.D. 32, 35-36 (E.D.N.Y. 1985); Wright v. Group Health Hosp., 691 P.2d 564, 569 (Wash. 1984); and (5) the rule applies only to the corporation's "alter egos," which include officers and employees who can bind the corporation, whose acts or omissions are imputed to the corporation, or who implement counsel's advice, see State v. Ciba-Geigy Corp., 589 A.2d 180, 185 (N.J. Super. 1991); Nieseg v. Team I, 558 N.E.2d 1030, 1035 (N.Y. 1990); Strawser v. Exxon Co., 843 P.2d 613, 621 (Wyo. 1992). See generally John E. Iole & John D. Goetz, Ethics of Procedure? A Discovery-Based Approach to Ex Parte Contacts with Former Employees of a Corporate Adversary, 68 NOTRE DAME L. REV. 81 (1992) (arguing that ex parte contacts with former employees are discovery problems, not ethics problems); Ernest F. Lidge III, The Ethics of Communicating with an Organization's Employees: An Analysis of the Unworkable "Hybrid" or "Multifactor" Managing-Speaking Agent, ABA, and Niesig Tests and a Proposal for a "Supervisor" Standard, 45 ARK. L. REV. 801 (1993) (proposing that "supervisors," as defined in the National Labor Relations Act, should be the focus of the ex parte contacts ban); Samuel R. Miller & Angelo J. Calfo, Ex Parte Contact with Employees and Former Employees of a Corporate Adversary: Is It Ethical?, 42 BUS. LAW. 1053 (1987) (recommending a complete ban on ex parte contacts for current employees and some former high level employees); Felicia R. Reid, Comment, Ethical Limitations on Investigating Employment Discrimination Claims: The Prohibition on Ex Parte Contact with a Defendant's Employees, 24 U.C. DAVIS L. REV. 1243 (1991)
443. See supra notes 105-106 and accompanying text.
444. See generally Zacharias, supra note 21 (discussing the usefulness of a federal code of professional responsibility).
445. See supra note 313; cf. McMorrow, supra note 21, at 977 (noting the likelihood of conflicting federal court decisions applying FED. R. CIV. P. 11). The Supreme Court cannot be relied on to resolve conflicting interpretations of professional rules. The Court has discretion over its docket, and would likely be unwilling to accept more than an occasional case involving the scope of lawyers' professional conduct. Although the ABA might propose that its interpretation of ambiguous rules be authoritative in order to achieve national uniformity, deference to the ABA as the ultimate arbiter of professional standards would suffer from the same flaw as executive agency rulemaking, namely, the subjectivity of the decisionmaker. See supra notes 299-301 and accompanying text.
446. See, e.g., Grievance Comm. v. Simels, 48 F.3d 640, 645-46 (2d Cir. 1995) ("If a particular interpretation of a state ethics rule is inconsistent with or antithetical to federal interests, a federal court interpreting that rule must do so in a way that balances the varying federal interests at stake."); Kitchen v. Aristech Chem., 769 F. Supp. 254, 258 (S.D. Ohio 1991) ("The ethical standards by which federal courts measure an attorney's professional conduct are standards denned by federal law."); Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 624 (S.D.N.Y. 1990) ("Federal law governs the conduct of attorneys in the federal courts."); County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1407, 1413 (E.D.N.Y. 1989) ("A federal court is not bound to enforce New York's view of what constitutes ethical professional conduct.").
447. See Burbank, supra note 21, at 978 ("The federal courts can no longer afford to defer to the states regarding the norms of professional conduct applicable in federal practice."). This is a question on which there is a need for empirical research. If litigators are likely to know that a case will be brought in federal court, but not which federal court, there is a stronger argument for uniform federal rules. If, however, litigators are likely to know that a case will be brought in a particular state, but not know whether it will be brought in state or federal court, there is a stronger argument for incorporating the rules of each state. Regardless of what such research showed, however, uniform federal rules of ethics may better address the problem of balkanization. Consider two groups of federal litigators. The first is comprised of those who practice exclusively within the state and federal courts of a single state. The second is comprised of those - such as federal government lawyers and civil litigators concentrating in the areas of federal antitrust, bankruptcy, and securities law-who practice in federal court throughout the country. Uniform federal rules will slightly disadvantage the first group by subjecting it to two sets of ethical rules, whereas the state-centered approach will severely disadvantage the second, by subjecting it to fifty sets of ethical rules. In any case, the two arguments that have been advanced most strenuously in favor of incorporating state rules of ethics have nothing to do with the need for consistent rules, much less for appropriate and clear ones. The first argument is that this would be "a low-cost solution," because federal courts would be spared the effort of having to decide what standards of conduct are most appropriate. See Uniform Ethics Rules, supra note 20, at 873. This argument overlooks the cost of interpreting ambiguous rules in litigation, see infra Part III.E, as well as the various interests that would be served by uniform federal rules of ethics. The second argument is that uniform federal rules would be "inconsistent with the theory and tradition of state regulation of lawyers." Uniform Ethics Rules, supra note 20, at 874. One aspect of this argument is that if federal courts adopt uniform federal ethics rules, they may be required to create an independent federal disciplinary mechanism. This seems unlikely, however. As they do now, federal courts may rely largely on state disciplinary authorities to address improprieties occurring in federal court proceedings. It would be perfectly appropriate for state disciplinary authorities to enforce federal rules of ethics, as they enforce other states' rules. The ABA's model choice-of-law provision assumes that they will do so. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.5(b)(1) (1994) (stating that in cases involving misconduct in a judicial proceeding, disciplinary authority of state in which lawyer is licensed will apply the rules of the court before which the lawyer appeared). The other aspect of this argument is that the states have an overriding interest in setting the standard of conduct for the lawyers whom they license, even when those lawyers appear before the courts of another jurisdiction. This might be true if the function of state ethical rules were solely to codify standards of fitness to practice law - e.g., that lawyers should be law-abiding, serve their clients competently, etc. - because licensing authorities clearly have an interest in determining whether lawyers whom they license have engaged in conduct that reflects adversely on a lawyer's fitness. For the most part, however, the ethical rules have nothing to do with fitness to practice per se, but reflect policy decisions about how lawyers should relate to clients, prospective clients, the court, and third parties. Many are indistinguishable from rules of procedure. Conduct which is permissible under the ethical rules of one jurisdiction but not of another will rarely, if ever, comprise conduct demonstrating one's lack of fitness to practice law.
448. Cf. McMorrow, supra note 21, at 976-77 (noting the potential leadership role of federal courts in developing a "vision of [lawyer] competence").
449. See supra part III.C.
450. Coquillette Study, supra note 32, at 6.
451. Id. at 6 n.*.
452. For example, the drafters might begin with rules relating to the following subjects: (1) advocacy in adjudication, see MODEL RULES OF PROFESSIONAL CONDUCT Rules 3.1-3.8 (1994); (2) relations with nonclients, see id. Rules 4.1-4.4; (3) conflicts of interest, see id. Rules 1.7-1.12; (4) termination of the representation, see id. Rules 1.16; (5) accepting appointments by a tribunal to represent a person, see id. Rule 6.2; (6) duties of confidentiality and disclosure, see id. Rules 1.6 & 8.3; and (7) proper conduct generally. See id. Rule 8.4. On the other hand, there would be no need to address aspects of law practice that have essentially no relevance to federal litigation. See, e.g., id. Rule 1.15 (safekeeping property); id. Rule 1.17 (sale of law practice); id. Rule 6.1 (voluntary pro bono service).
453. For some lawyers, the greater certainty to be afforded by a comprehensive federal code of ethics may be a vice, not a virtue. As Professor Coquillette's study illustrated, much of the conduct of federal litigators that implicates ethical rules rarely if ever comes to a court's attention. The ambiguities of the ABA rules are rarely resolved authoritatively. Consequently, lawyers may interpret those rules in a manner beneficial to themselves or their clients without concern that they will later be sanctioned for doing so. For these lawyers, the most recent option presented by Professor Coquillette - namely, "adopting uniform national federal rules for attorney conduct only in certain key areas" that are frequently addressed by federal courts, id. at 5-6 - may provide the best of both worlds. Ambiguity would be preserved with respect to conduct that courts rarely address, while greater clarity would be provided with respect to conduct as to which there is a risk of discipline.