Robert Hill Schwartz On behalf of the New York Council of Defense Lawyers - Center for Professional Responsibility

January 15, 1999

Ms. Susan Campbell
ABA Center for Professional Responsibility
541 N. Fairbanks, 14th Floor
Chicago, IL 60611

Dear Ms. Campbell,

On behalf of the New York Council of Defense Lawyers ("NYCDL") I write to request the opportunity for a representative of our organization to testify on February 4, 1999, before the Ethics 2000 Panel to address our opposition to Proposed Rule 4.2(b). Since we only learned of the hearing three days ago, we have not had the opportunity to prepare our written testimony. However, the substance of our considered opposition is discussed below.

The NYCDL is an organization of almost 200 attorneys in New York, many of whom are former federal or state prosecutors, whose practice primarily consist of criminal defense work in the federal courts. The NYCDL previously has expressed, in writing, its substantial opposition to attempts to change Rule 4.2 of the ABA Model Rules of Professional Conduct in a manner designed to increase the right of law enforcement personnel to contact persons known to be represented by counsel. I am enclosing for ready reference our written statement, dated June 4, 1998, to the National Center for State Courts in which we voice objection to the Proposed Rule

4.2 then under consideration by the Conference of Chief Judges. We incorporate those comments to the extent pertinent to the proposed Rule 4.2 under consideration by Ethics 2000 ("the Proposed Rule").

The NYCDL joins in the substantial opposition that already has been expressed by representatives of the organized Bar to the exception to the anti-contact rule set forth in the Proposed Rule. While this proposed exception takes a somewhat different form than other variations that have been before the Conference of Chief Judges and the United States Judicial Conference, the essential dangers in the approach remain the same. Paragraph (b) of the Proposed Rule seeks broadly to empower law enforcement attorneys to use their agents and even informants to do what no other lawyer may do under our system of professional responsibility: contact a person known to be represented in the matter by counsel, without the prior permission of counsel and without counsel's involvement in the communication. This exception threatens the very fabric of the attorney-client relationship and certainly vitiates the important policies that underlie our Constitutional protections for an accused. Indeed, the notion that because it is law enforcement agents whose conduct is at stake an exception should be created, stands the very Constitutional consideration on its head. The need for vigilant protection of the rights of an accused person is never more acute than when it comes to communications with law enforcement personnel or, even worse, those acting on their behalf such as informants. So vital is this need for vigilance that it is impossible to envision a competent attorney ever permitting his client to communicate with a law enforcement representative concerning the matter under investigation without prior notice to counsel and without counsel being present.

The concept that there should be an exception to the no-contact rule for law enforcement personnel was built upon a now-tired claim by the Department of Justice that its attorneys were not subject to regulation of their ethical conduct by the Courts. Although the Department continues to urge this position implicit in its various proposals concerning the anti-contact rule, the Department's refusal to submit to uniform regulation of the conduct of its personnel has been roundly condemned by state and federal courts. See, e.g., United States v. McDonnell Douglas Corporation, 132 F.3d 1252 (8th Cir. 1998). The rejection of the Department's position, of course, was at the heart of the overwhelming Congressional passage of Section 801 of the Citizens Protection Act in October, 1998. Rule 4.2(b) of the Proposed Rule rests upon the same misguided approach, despite its precatory language.

The first sentence of paragraph (b) of the Proposed Rule provides that "a government lawyer supervising a criminal investigation may authorize an investigative agent to communicate with a person represented in the matter if the lawyer employs reasonable measures to assure that ...." This formulation is problematic for at least two reasons. First, the fact that it is an investigative agent who will ultimately have the contact rather than the government lawyer, does not change the breadth of the exception nor lessen the concern as a matter of professional responsibility. Under all traditional notions of the anti-contact rule, it applies not only directly to the attorney, but to agents acting on the attorney's behalf or upon his instructions. Moreover, there is always a significant chance that the investigative agent will himself be an attorney and therefore that the violation of the normative rule will be direct. Of even greater concern, if the person who actually engages in the contact is an informant -- as the exception is intended to encompass -- there is absolutely no assurance that serious violations of attorney-client privilege and work product -- which the Proposed Rule ostensibly protects against - - will be avoided.

Second, the phrase "reasonable measures" leaves much unsaid and ambiguous. The phrase maybe construed to establish a subjective standard and may be read to mean that as long as the government lawyer "reasonably believes" the measures are "reasonable" there is no violation. But here, as in so many other areas, the reasonableness of conduct should not be left to the actor himself to determine and certainly not when it comes to government conduct.

The Proposed Rule goes on to identify the 3 categories of conduct which the government lawyer must take reasonable measures to assure against. Even a cursory examination of these formulations, however, suggests that the Proposed Rule is unworkable. Subparagraph (b)(1) provides an assurance "that the agent does not seek information regarding the work product of the represented person's lawyer, or information protected by the attorney-client privilege." How will the investigative agent know that his inquiries will not elicit such information or be interpreted by the represented person as seeking such information? What's more, short of the most clumsy formulations of a question which most experienced investigators easily will avoid, virtually any question that the agent might ask would satisfy this protection and yet would clearly elicit work-product or privileged information. Most importantly, the Rule does not proscribe the receipt or the use of privileged information or work product; it only requires that the agent not seek such information. It is precisely because the represented person is contacted without counsel's participation or awareness that the danger of such disclosures is at its greatest.

Rule 4.2(b)(2) provides an assurance that "the agent does not attempt to induce the represented person to forego representation by or disregard the advice of his or her lawyer...." What an odd requirement for a communication that begins with the premise that the "represented person's" counsel should neither be informed about nor participate in the communication itself! The very act of the communication without counsel impliedly suggests that a preferred course for the client is to act without counsel's advice or contrary to its direction. Indeed, every seasoned criminal defense counsel would caution a client not to engage in any discussion with a third party regarding the conduct at issue in the matter. Hence, the very communication without counsel often will be a violation of the attorney's advice.

Subparagraph (b)(3) provides an assurance that "the agent does not initiate or engage in negotiation of an agreement, settlement or plea with respect to the matter in which the person is represented by a lawyer." This provision, however, like its counterpart in (b)(2) ignores the inherently coercive nature of contact with targets or subjects in the absence of their counsel. In short, this is simply an unrealistic objective when the client's counsel is excluded from the communication.

Apart from these facial infirmities in the Rule, the overwhelming concern continues to be the invitation for a limitless communication regarding the matter in which the person is represented by counsel. This is truly a classic instance where the exception swallows the rule; under the Proposed Rule there effectively is no restriction on the right of a government attorney to communicate through less sophisticated agents with a person known to be represented by counsel.

For these reasons, and others upon which we will continue to expand in our testimony, the NYCDL respectfully, but vigorously, urges that the Proposed Rule is ill-conceived and certain to invite abuse by unregulated law enforcement personnel. We urge rejection of this Rule. Instead, we urge the Commission to embrace a clear and strong statement that all law enforcement personnel are subject to the same regulation of their ethical conduct as any attorney in the private or public sector.

Respectfully submitted,

Robert Hill Schwartz, President
New York Council of Defense Lawyers

 

June 4, 1998

Ed O'Connell, Esq.
Senior Counsel
National Center For State Courts
1700 North Moore Street
Suite 1710
Arlington, VA 22209

Dear Mr. O'Connell:

STATEMENT OF THE NEW YORK COUNCIL OF DEFENSE LAWYERS
WITH RESPECT TO PROPOSED CHANGES TO ABA MODEL RULE 4.2

The New York Council of Defense Lawyers ("NYCDL") respectfully submits this comment on proposed changes to Rule 4.2 of the ABA Model Rules of Professional Conduct (the "Proposed Rule") which is under consideration by the Conference of Chief Judges (the "Conference"). The NYCDL is an organization of almost 200 attorneys in New York, many former federal prosecutors, whose practice primarily consist of criminal defense work in the federal courts. We join in the substantial opposition that already has been voiced by the organized Bar to the Proposed Rule. In particular, our organization joins in the specific objections described in the written submission of the National Association of Criminal Defense Lawyers,

I.  Introduction

The issue of the uniform applicability of rules of Ethical Conduct to government attorneys is one with a significant history and has long been of great concern to the private bar throughout the United States. Like other professional bar associations, the NYCDL has been troubled by the efforts of the Department of Justice ("DOJ") to exempt its lawyers from compliance with the basic ethical requirements of codes of responsibility, and in particular the Model Rules of Professional Responsibility, as adopted by a majority of jurisdictions throughout the United States. The Proposed Rule would formally sanction the position urged by the DOJ in the past and further undermining ethical restraints on law enforcement attorneys. In light of the fact that there exists no adequate supervision mechanism, such a relaxation of ethical rules undoubtedly would create a dangerous and unfair situation.

The policy concerns that underlie the opposition of the organized bar to any modification of the ethical rule which prohibits uncounseled contact with represented persons were recognized by the Court of Appeals for the 8th Circuit in its decision in United States ex rel. O'Keefe v. McDonald Douglas Corp., No. 97-221, 1998 WL 1924 (8th Cir. January 6, 1998). The concerns which prompted the decision in O'Keefe have not faded in six months.

II.  The Present State of the ABA Model Rule

In its current form, ABA Model Rule 4.2 provides that lawyers are prohibited from "communicat[ing] 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." This rule, which prohibits contact by an attorney with an adverse party known to be represented by counsel, has long been an integral part of the ethical standards that govern attorneys. The rule, ( see e.g., Code Of Professional Responsibility, DR 7-104) has for good reasons never made a distinction between government and non-government attorneys. In operation, this rule requires any attorney first to obtain the permission of the attorney for another already involved in a matter before contacting or facilitating the contact of such person. The Rule takes cognizance of the gross unfairness of permitting one party in a matter to communicate with another party, behind the back of the latter's counsel. The rule also is designed to prevent confusion or disruption in the attorney-client relationship that would be fostered by such inappropriate contact. Likewise, the rule has served to reduce the likelihood that a represented person involved in important legal matters would provide information to an adversary's counsel without thoughtful deliberation and full appreciation of the consequences of such actions.

III.  The Proposed Rule's Provision Regarding Communication
in the Pre-Arrest/Charge Situation Is Unjustified

The Proposed Rule draws a distinction between pre-arrest/charge and post-arrest charge situations. In the former, a government attorney would be free to contact a represented adverse party without regulation. For example, even in the case of a client represented throughout an investigation by counsel, a government lawyer would be free to have an uncounselled conversation with the client, without notice or participation of retained counsel, at any time before arrest or charge in a criminal case. ( See e.g., Elkan Abramowitz, " Ex Parte contact from the Justice Department," NYLJ March 3, 1998). Obviously, such a result is unfair and would undermine confidence in the adversary system as well as in the attorney-client relationship.

As we understand its position, the DOJ has failed to establish any justifiable need for further exceptions to the Model Rule. Currently, the Model Rule contains an exception which permits communications when they are "authorized by law," an exception which has been read reasonably to permit courts to intervene and allow direct communication between government lawyers and defendants in circumstances where such courts are convinced by the government that a need exists to ensure that a criminal defendant capable of assisting law enforcement can do so if he or she actually wants to. However, there is a significant difference between judicial scrutiny and supervision of the limited instances where such contact is permissible and a wholesale expansion that would grant government lawyers an absolute exemption from the prohibitions of the Rule at any time prior to arrest or a charge (the timing of which lies within government control) without court intervention or supervision.

IV.  The Proposed Rule's Provision Regarding Communications
in the Post-Arrest/Charge Situation Should be Severely Circumscribed

The Proposed Rule also would create an exception for government lawyers seeking to have contact with represented persons after an arrest or charge has been made, or after an individual is named as a defendant in a civil law enforcement proceeding, where such communications are made in the course "of any investigation of additional, different or ongoing criminal activity or other unlawful conduct." Proposed Rule 4.2(b)(2)(A). Although styled to appear limited by a condition that superficially might restrict its applicability, upon analysis, the post-arrest/charge exception is just as broad as the pre-arrest/charge exception.

Essentially, government attorneys are provided unfettered access to represented individuals in any matter "different" from the matter for which proceedings have been commenced. Apart from inviting new and difficult litigation about just what constitutes a "different" matter, as a philosophical point, the Proposed Rule necessarily will interfere with the attorney-client relationship. Moreover, once a client has been named in an arrest warrant or criminal proceeding, it is hard to conceive of any situation being investigated by the government that is, in fact, unrelated. Put another way, as a matter of principle and prudence, a client should not be subjected to an unrepresented inquiry or contact by a government attorney which is likely only to exacerbate the individual's then existing legal predicament. Statements made during such an uncounselled interview are likely to have a substantial and unfairly prejudicial impact on a person facing criminal charges, as well as on matters which are so far uncharged. For example, such statements likely will affect bail conditions as well as the client's decision whether to testify during a criminal trial, whether to enter into plea negotiations for a disposition of the case, or whether to decide to negotiate toward an appropriate cooperation arrangement with the government. No person represented by counsel should be put in the position of making statements with potential dire consequences and without the benefit of his or her chosen counsel's guidance and advice as to the possible consequences.

V.  Exceptions for Communications Initiated by a Represented Person

In a marked expansion of existing law, Proposed Rule 4.2(b)(2)(C) creates an exception for government lawyers who seek to interview a represented person (after arrest or charge) when such represented person has initiated the contact and "has given written or recorded voluntarily an informed waiver of counsel for that communication." Once again, the expansion of the Rule does not provide for judicial supervision or oversight.

No justification is offered to warrant the conclusion that the government is entitled to elicit such uncounselled statements. Even assuming, arguendo, a claimed need because of a perceived conflict between the current representation and the specific interest of the represented client, there is no reason to sidestep the option of court appointed substitute counsel to give legal advice in place of the attorney in question. The point here is that the government attorney is not the one to be making or influencing decisions for the represented but uncounselled client. Once the government attorney is given license to meet with an adverse party in the absence of his lawyer, the threat of undue influence is real and substantial.

VI.  Organizational Clients

A further significant expansion of the Proposed Rule is its treatment of the organization as a client. Proposed Rule 4.2(c) deals with contacts with an organization through its employees, permitting a government attorney to contact any employee of an organization except those within the "control group" of the represented entity. This, too, is a scheme which creates an inequity that is foreign to the practice of law where attorneys are prohibited not only from contacting the control group, but any employee who is able to bind the organization. No justification or rationale offered warrants relaxing the existing restrictions on such ex parte contact.

In marked contrast to the view of the United States Supreme Court in the context of the attorney-client privilege, the Proposed Rule creates an exceedingly narrow definition of a "control group", and therefore, a correspondingly large circle of employees who may be contacted in derogation of their right to seek the advice of counsel. (See Upjohn Co. v. United States, 449 U.S. 383 (1981).) In Upjohn, the Supreme Court recognized that since corporations act only through their employees, it is inappropriate to limit the attorney-client privilege to a so-called "control group." Instead, the Court recognized that important aspects of the attorney-client relationship are present in communications and advice given even to lower-level employees. Such considerations apply with equal force in the case of contact with represented employees under Rule 4.2.

Conclusion

Despite years of litigation and well-founded criticism that has discouraged attempts to apply a different perspective and ethical standard to government attorneys than that to which all other lawyers are subject, the DOJ appears intent on seeking to widen the gulf of unregulated activity of its attorneys. Unfortunately, such expansion has been proposed and urged without well-founded justification. Moreover, there has been a total failure to take into account the devastating impact of the Proposed Rule on the attorney-client relationship and the quite accurate perception of unfairness in our justice system as a result of the extraordinary power placed in the unregulated hands of government attorneys.

The NYCDL reiterates its vigorous objection to the Proposed Rule 4.2 changes. We respectfully submit that the strength and number of objections that have been voiced by the organized Bar should be the clearest of signs for the Conference that any change in the applicable ethical standards for government lawyers would be dangerous and inadvisable. We respectfully urge the Conference of Chief Justices to reject the Proposed Model Rule.

Respectfully submitted,

Robert Hill Schwartz, President
New York Council of Defense Lawyers

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