McDade-Murtha Amendment: A Sketch of Legislation in the 107th Congress Concerning Ethical Standards for the Justice Department Litigators
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McDade-Murtha Amendment: A Sketch of
th
Legislation in the 107 Congress Concerning
Ethical Standards for the Justice Department
Litigators
Charles Doyle
Senior Specialist
American Law Division
Summary
The McDade-Murtha Amendment, 28 U.S.C. 530B, instructs Department of Justice
litigators to adhere to the ethical standards which apply to other attorneys in the places
where the litigators perform their duties. While supporters argue the Amendment is the
only existing, effective means of preventing and punishing prosecutorial abuse, critics
contend that the Amendment impedes effective federal law enforcement. Twice in the last
year, the Senate has passed legislation that included sections substantially modifying the
amendment, but in each instance the modifications have been stripped out of the host
legislation prior to its passage. This is a discussion of those sections and other similar
proposals introduced in the 107th Congress. It is an abridged version of McDade-Murthath
Amendment: Legislation in the 107 Congress Concerning Ethical Standards for Justice
Department Litigators, CRS Report RL31221 (Dec. 18, 2001), without its footnotes or
appendix. For more detailed background information, see, McDade-Murtha
Amendment: Ethical Standards for Justice Department Attorneys, CRS Report Rl30060
(Dec. 18, 2001).
Background
Prior to enactment of the McDade-Murtha Amendment as section 801 of the
Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, 112
Stat. 2681-118, Justice Department attorneys had long been required to be licensed to
practice law by some state, territory or the District of Columbia and as a consequence
were obligated to honor the ethical standards imposed upon members of the bar to which
they were admitted. The federal courts when called upon to establish ethical standards for
attorneys appearing before them generally adopted the rules of the states in which they
were located.
Congressional Research Service ˜ The Library of Congress
Early in 1980, the Justice Department ruled that nothing in these state and local
federal court standards should be construed as an impediment to federal law enforcement
efforts. Attorneys General Thornburg and Reno subsequently re-emphasized the point.
In the meantime, however, Congress had begun to express its concern. The House
Government Operations Committee conducted hearings and recommended among other
things a thorough examination of the ethics rules applicable to Department attorneys while
expressing concern over “the problems inherent in any system of self-policing and
regulation,” H.Rept. 101-986, at 35 (1990). Later, the House Judiciary Committee held
hearings on a legislative proposal cast in language much like that of the McDade-Murtha
Amendment.
Thereafter, apparently frustrated by the perceived lack of an effective mechanism to
curb prosecutorial abuse by federal prosecutors, both Independent Counsel and regular
Justice Department attorneys, Congress added the McDade-Murtha Amendment to the
Divisive Issues
Debate over the Amendment and proposals to change it revolve around the same
issues that have marked the subject from the beginning. Some are general; others
particularized. Who should determine what ethical standards federal litigators must honor?
Should federal standards be uniform throughout the United States or compatible with local
standards? Should local “no contact,” grand jury, or honesty regulations apply to federal
litigators even if they impede the performance of federal attorneys? These issues touched
upon below in the context of specific legislative proposals are discussed in greater detail
in McDade-Murtha Amendment: Ethical Standards for Justice Department Attorneys,
CRS Report RL30060 (Dec. 14, 2001).
Professional Standards for Government Attorneys Act (S.
Senator Leahy introduced the Professional Standards for Government Attorneys Act
of 2001 (S. 1437) for himself and Senators Hatch and Wyden on September 19, 2001, 147
Cong.Rec. S9509. The bill passed the Senate as section 501 of the Senate’s terrorism bill
(S. 1510), 147 Cong.Rec. S10622 (daily ed. Oct. 11, 2001), but was not included in the
final USA PATRIOT Act, P.L. 107-56. It repeals the McDade-Murtha Amendment and
instead places federal litigators under the exclusive control of the local federal court rules
where they conduct their activities, subject to several specific exceptions. It calls for
studies and reports designed to remove specific divisive issues from the domain of local
federal court rules and place them within the federal rules of criminal and civil procedure.
More specifically, when federal litigators are engaged in conduct “in connection with”
or “reasonably intended to lead to” a proceeding in or before a particular court, they are
bound by the ethical standards of that tribunal. Otherwise, they are bound by the rules of
the local federal court where they ordinarily perform their duties. The sponsor’s summary
indicates that this last category is for cases of uncertainty as when venue is possible in
more than one district or when proceedings are being conducted or anticipated in more
than one district: “in other circumstances, where no court has clear supervisory authority
over particular conduct, an attorney would be subject to the professional standards
established by rules and decisions of the United States District Court for the judicial
district in which the attorney principally performs his officials duties,” 147 Cong.Rec.
S9511 (daily ed. Sept. 19, 2001)(Summary of the “Professional Standards for
Government Attorneys Act of 2001” accompanying the introductory remarks of Sen.
Leahy).
The bill codifies the appropriations requirement that federal litigators be licensed to
practice law in some American jurisdiction. Like most local federal court rules, it does not
require them to be admitted either in the state where they ordinarily represent the United
States or in any states where they otherwise perform their duties. Federal litigators are
thus returned to where they stood prior to the McDade-Murtha Amendment, i.e., remote
from the enforcement mechanisms of state bar counsel whenever they are employed in a
state other than the one in which they have chosen to be licensed.
The proposal also addresses potential limitations on the use of undercover
investigations. Stings and other forms of undercover investigation are highly valued law
enforcement techniques. For any number of reasons including the fact that federal
prosecutors are now more likely to direct, supervise, or advise those conducting
undercover investigations, conflicts have arisen under two sets of rules – the “no contact”
rules and the honesty rules.
The no contact rules, formulated in order to prevent lawyers from taking unfair
advantage of unsophisticated laymen, prohibit attorneys from approaching a represented
client unbeknownst to the client’s lawyer. For any number of reasons law enforcement
undercover investigations will ordinarily not be considered a violation of the no contact
rule in most jurisdictions, but there are exceptions, e.g., United States v. Hammad, 858
F.2d 834, 839-40 (2d Cir. 1988). The bill leaves the no contact rule issue to be resolved
by the uniform rules it anticipates will follow from the study it mandates.
The bill deals with the honesty rule issue more directly. The honesty rules ban
attorneys from making false statements during the course of their representation of a client
or from engaging in dishonest, deceitful, or fraudulent conduct under any circumstances.
The Oregon Supreme Court has held that an attorney violates the honesty rules when he
misidentifies himself and his purpose in the course of investigating possible fraud
committed against a client, In re Gatti, 330 Ore. 517, 8 P.3d 966 (2000). In doing so, it
refused to recognize a law enforcement exception for either state or federal authorities,
It has been suggested that the problems presented by Gatti could be overcome if
federal prosecutors simply disassociated themselves from undercover investigations until
the case was ready for prosecution. The Justice Department replies that early attorney
participation helps prevent constitutional violations and is more conducive to successful
prosecution.
The bill creates an undercover exception for federal litigators: “Notwithstanding any
provision of State law, including disciplinary rules, statutes, regulations, constitutional
provisions, or case law, a Government attorney may, for the purpose of enforcing Federal
law, provide legal advice, authorization, concurrence, direction, or supervision on
conducting covert activities, and participate in such activities, even though such activities
may require the use of deceit or misrepresentation,” S.1437, proposed 28 U.S.C. 530B(d).
Although the courts have generally held that a prosecutor’s ethical violations do not
in and of themselves constitute grounds for the exclusion of evidence, a few have held
otherwise. The bill declares that otherwise admissible evidence may not be excluded from
evidence in federal criminal proceedings on the basis of a prosecutor’s ethical violations.
In addition to the no contact rule study, the bill directs the Judicial Conference to
report to the House and Senate Judiciary Committees within two years on (1) the actual
and potential conflicts between the performance of federal law enforcement duties and
ethical standards dictated by the bill, and (2) the amendments necessary to resolve those
conflicts.
S. 1435/§599A of H.R. 2506 (As Passed by the Senate)
Senator Wyden introduced the Federal Investigation Enhancement Act of 2001 for
himself and Senator Leahy on September 19, 2001. It was incorporated into the foreign
operations appropriations act, H.R. 2506, and passed the Senate as section 599A of that
bill on October 24, 2001, 147 Cong.Rec. S10961. Unlike the more comprehensive S.
1437, it does not repeal the McDade-Murtha Amendment but imports into it an
undercover law enforcement exception similar to that found in S. 1437.
H.R. 3309
The Investigation Enhancement Act of 2001, introduced on November 15, 2001 by
Representative Walden for himself and Representatives DeFazio, Wu, Hooley, and
Blumenauer, replicates S. 1435 with one exception. It applies the exception both to
federal litigators and to Justice Department attorneys who are investigators rather than
litigators.