Moreover, the examples provided by the Memorandum suggest that the policy was meant to be applied in organized crime cases and corporate or organizational-type settings. Memo at 6.
While the Memorandum thus seems to suggest that the parameters of the Attorney General's policy are limited, it nonetheless closes with the sweeping statement that "the 'authorized by law' exemption in DR 7-104 applies to all communications with represented individuals by Department attorneys or by others acting at their direction." Memo at 7 (emphasis added). If there were any doubts as to the scope of the policy, they have been dispelled by the brief filed by the Department of Justice in this case, which makes clear the Department's position that the purported exemption exists after indictment and outside the corporate and organized crime contexts. DOJ Brief at 4-7.
There are profound flaws in the Attorney General's policy and they are demonstrated within the four corners of the Thornburgh Memorandum. Even a cursory examination of the authority cited by the Attorney General reveals that the cases do not support the policy articulated in the Memorandum.
For example, the Attorney General cites Wood v. Georgia, 450 U.S. 261, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981), for the proposition that "when an individual believes that his lawyer is representing not his own interests but the interests of a third party, and that announcing to his lawyer that he has made contact with Government investigators could have dire consequences," direct communication with the government may benefit the client and vindicate his rights. Memo at 2. Wood nowhere makes such a radical statement.
The Wood Court found that employees of an adult theater who were represented by an attorney paid by their employer might have been prejudiced by the potential conflict of interest between the employer and the employees. Wood, 450 U.S. at 266-67. The Court noted the dangers of a criminal defendant's lawyer being paid by a third party and remanded the defendants' case for a hearing to determine whether the conflict of interest had resulted in a due process violation. Id. at 271-72. However, the Court's opinion makes it clear that the solution to any conflict of interest between defendants and their attorney would be appointment of new counsel, not direct communication between the defendants and the government. Id.
Other examples of the Attorney General's strained use of existing case law are found in the Memorandum's reliance on Kolibash v. Comm. on Legal Ethics of W. Virginia Bar, 872 F.2d 571 (4th Cir. 1989) and Sperry v. Florida, 373 U.S. 379, 10 L. Ed. 2d 428, 83 S. Ct. 1322 (1963). In Kolibash, the Fourth Circuit ruled that disciplinary proceedings involving a federal officer could be removed to federal court. 872 F.2d at 575. Nowhere does Kolibash suggest that federal officers are not subject to governing ethical rules. It is even harder to discern the relevance of Sperry v. Florida, where the Supreme Court ruled that a state does not have the power to prohibit patent agents authorized by the U.S. Patent Office from operating within its boundaries. 373 U.S. at 401-402. The court is hard pressed to see what guidance Sperry offers on the issue of whether ethical rules apply to DOJ attorneys.
Finally, the Attorney General's Memorandum cites to numerous cases which purportedly recognize the legitimacy of undercover law enforcement investigations, even when the investigations involve individuals who keep an attorney on retainer. Memo at 2. Without exception, however, these cases involve pre-indictment investigations.
Several of the decisions cited by the Department of Justice go to great lengths to distinguish the interests at stake in the pre-indictment context from those which must be considered once an individual has been indicted and is in custody.
Indeed, those courts asked to decide whether DR 7-104 applies in the pre-indictment context have assumed, without finding it necessary to discuss, that the Rule applies to government attorneys in the post-indictment context. See, e.g., United States v. Hammad, 858 F.2d 834, 837-38 (2d Cir. 1988), cert. denied, 498 U.S. 871, 112 L. Ed. 2d 154, 111 S. Ct. 192 (1990) (DR 7-104 applies in criminal prosecutions in criminal cases; closer question whether Rule applies pre-indictment); United States v. Lemonakis, 158 U.S. App. D.C. 162, 485 F.2d 941, 955 (2d Cir. 1973) (court assumes it would be improper for a prosecutor to interview a criminal defendant under indictment in the absence of his retained counsel).
This court has attempted without success to locate any authority for the proposition that DR 7-104 does not apply to a government attorney who communicates with a represented individual under indictment. This, of course, is not surprising in light of the tortured logic of the Attorney General's policy.
The Department asserts that government attorneys involved in criminal investigations are "authorized by law" to make contact with represented individuals by virtue of federal statutes which empower the Attorney General to investigate and prosecute criminal violations. Memo at 5, 7; Gov. Supp. Response at 6. The implications of this assertion are alarming, since nearly all conceivable action taken by a prosecutor involve these activities. Indeed, the entire post-indictment conduct of a prosecutor is driven by the goal of completing the prosecution.
The government argues that federal statutes 28 U.S.C. §§ 509, 515(a), 516, 533 and 547 authorize Department attorneys to make contact with represented individuals in criminal investigations. Gov. Supp. Response at 6. However, these are nothing more than general authorizing statutes; none expressly or impliedly authorize government attorneys either to disregard court-adopted rules or to violate ethical rules regarding contact with represented individuals. For example, section 547 defines the duties of a U.S. Attorney.
Courts interpreting section 547 have consistently ruled that this statute does not exempt U.S. Attorneys from their obligations to act fairly and with proper deference to the rights of the accused. United States v. Bess, 593 F.2d 749, 754 (6th Cir. 1979); Dugan Drug Stores, Inc. v. United States, 326 F.2d 835, 837 (5th Cir. 1964); Dunn v. United States, 307 F.2d 883, 885 (11th Cir. 1962).
The ABA Committee on Professional Ethics has found only limited circumstances where the "authorized by law" exception to DR 7-104 applies, such as where "applicable statutes or procedural rules or rules of law in a particular jurisdiction expressly permit an offer of judgment to be served directly upon an adverse party . . . ." ABA Comm. on Prof. Ethics & Grievances Informal Op. 985 (1967). There is no federal statute which authorizes government attorneys to question represented parties in the absence of counsel
and the rule of law in this jurisdiction, as embodied in this court's Local Rules, explicitly prohibits such contact.
Were this court to accept the Department's argument in this regard, it is not clear that there would be any conduct the prosecutor could not undertake, as long as it was pursuant to his or her responsibility to investigate and prosecute crimes. DOJ attorneys would be exempt from rules adopted by federal courts to govern ethical conduct of attorneys practicing before them. This is, quite simply, an unacceptable result. Local rules are clearly meant to apply to all attorneys practicing in federal court, regardless of the client they represent.
Without an ethical restraint, a prosecutor's authority to communicate with represented individuals would be virtually limitless.
The courts have been careful to avoid such a result and have thus held that Department attorneys are authorized to communicate with represented individuals without their attorney only in the pre-indictment context, United States v. Hammad, 858 F.2d at 839-40 (use of informants by prosecutor in pre-indictment, non-custodial situation generally falls within "authorized by law" exception to Rule); United States v. Chestman, 704 F. Supp. 451, 454 (S.D.N.Y. 1989), rev'd on other grounds, 903 F.2d 75 (2d Cir. 1990), reconsideration granted, en banc, Fed. Secur. L. Rep. (CCH) para. 95439 (government recording of conversations between informant and represented individual are "authorized by law" in the pre-indictment, non-custodial context), and where specific procedural rules authorize the government conduct. See, e.g., United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1021, 110 S. Ct. 1114 (1990) (questioning of represented individual before a grand jury in the absence of counsel falls within the "authorized by law" exception of Rule DR 7-104 in light of Fed. R. Crim. P. 6(d), which prohibits the presence of defense counsel in the grand jury room).
The Attorney General's "authorized by law" theory thus has no foundation. Indeed, there are compelling reasons why the ethical prohibition encompassed in Rule 2-100 and analogous ABA rules should apply to DOJ attorneys, at least in the post-indictment context.
The ethical norm that an attorney should not communicate with a represented individual in the absence of that individual's attorney is longstanding and was codified as Canon 9 of the ABA Canon of Professional Ethics in 1908.
DR 7-104 is widely accepted and the rule or its equivalent is now in effect in every state.
The rule is designed both to protect the represented individual from overreaching opposing counsel and to ensure that the adverse party's attorney can function properly. State Bar of California, Formal Opinion No. 1979-49, at IIA-128 (1979); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 453 (1979). The prohibition against communication with a represented party thus recognizes the inherent danger in a layperson conducting negotiations with an opposing lawyer and the likelihood that such negotiations would destroy the confidence essential to the attorney-client relationship and hamper the subsequent performance of the represented party's counsel. United States v. Batchelor, 484 F. Supp. 812, 813 (E.D. Pa. 1980).
Courts have consistently ruled that DR 7-104 applies to prosecutors.
See, e.g., United States v. Hammad, 858 F.2d at 837-38; United States v. Thomas, 474 F.2d 110, 111 (10th Cir.), cert. denied, 412 U.S. 932, 37 L. Ed. 2d 160, 93 S. Ct. 2758 (1973); United States v. Lemonakis, 485 F.2d at 955; United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987). Indeed, it can be argued that the prohibition against communication with a represented individual is even more important in the criminal context than in civil cases. A prosecutor "has more direct power over the lives, property and reputations of those in [his] jurisdiction than anyone else in this nation . . . ."
In light of the prosecutor's tremendous power and the fundamental individual rights at stake in criminal prosecutions, "'the character, quality, and efficiency of the whole [criminal justice] system is shaped in great measure by the manner in which the prosecutor exercises his or her broad discretionary powers.'"
It is for this very reason that ABA Prosecution Function Standard 3-1.1(d) makes it the duty of every prosecutor "to know and be guided by the standards of professional conduct as defined in the codes and canons of the legal profession . . . ."
This duty has been codified in the Department of Justice Standards of Conduct, which require DOJ attorneys to be guided in their conduct by the Code of Professional Responsibility of the ABA. 28 CFR § 45.735-1.
In light of the prominent and unique role of the Department of Justice in this country's litigation, the suggestion that DOJ attorneys should be exempted from a longstanding and universally applied ethical norm is alarming. Former Chief Justice Burger aptly characterized the Department of Justice as "the world's largest law firm" and noted that "its various Divisions work together toward the ultimate objective for which they were created - to promote the interests of the sovereign and of the public." United States v. Sells Engineering, Inc., 463 U.S. 418, 471, 77 L. Ed. 2d 743, 103 S. Ct. 3133 (1983) (Burger, C.J., dissenting). By May 1990 there were approximately seven thousand attorneys employed by the Department.
As Attorney General Thornburgh has recognized, "there is no organization whose legal work is of more importance to the country."
As "the nation's litigator,"
the Department and its attorneys must be held accountable to the same court-adopted ethical rules that govern all other lawyers.
Given the above discussion, the court finds that DR 7-104 and its equivalent, Rule 2-100 of the State Bar of California, apply to DOJ attorneys, at least in the post-indictment phase of criminal investigations and prosecutions. To the extent that the Thornburgh Memorandum instructs federal prosecutors to the contrary, it is misguided and not premised on sound legal authority. To the extent that the Memorandum purports to authorize DOJ attorneys to disregard an ethical rule which has been adopted by this court pursuant to its Local Rules, the Memorandum instructs federal prosecutors to violate federal law. See United States v. Klubock, 832 F.2d 649, 651 (1st Cir. 1986), reinstated, 832 F.2d 664, 665 (1st Cir. 1987) (state ethical rule adopted by U.S. district court through its local rules becomes federal law); Baylson v. Disciplinary Bd. of the Supreme Court of Pennsylvania, 764 F. Supp. 328, 1991 U.S. Dist. LEXIS 5554 at 8(E.D. Pa. 1991) (LEXIS pagination) (state ethical rule adopted by a federal district court through local rules is a federal law).
B. Factors Specific To This Case
Although the government relies primarily on the Thornburgh Memorandum to justify the actions of the prosecutor in this case, it also points to several factors which it contends remove AUSA Lyons' conduct from the purview of Rule 2-100. First, the government maintains that Rule 2-100 explicitly exempts criminal investigations of all types. Second, the government suggests that Lyons' communication with Lopez was akin to a pre-indictment investigatory contact. Third, the government argues that the rule is irrelevant because defendant Lopez initiated the contact. Finally, the government contends that Lopez waived the rule and that the court, through the actions of the Magistrate Judge, sanctioned this waiver. The court will address each of these arguments in turn.
The Discussion comment following Rule 2-100 states in part:
There are a number of express statutory schemes which authorize communications between a member and person who would otherwise be subject to this rule. These statutes protect a variety of other rights . . . . Other applicable law also includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by relevant decisional law.