28 Judicial Administration 2 2006-07-01 2006-07-01 false ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT 77 PART 77 Judicial Administration DEPARTMENT OF JUSTICE (CONTINUED) Pt. 77 PART 77—ETHICAL STANDARDS FOR ATTORNEYS FOR THEGOVERNMENT Sec. 77.1 Purpose and authority. 77.2 Definitions. 77.3 Application of 28 U.S.C. 530B. 77.4 Guidance. 77.5 No private remedies. Authority:

28 U.S.C. 530B.

 Source:

Order No. 2216-99, 64 FR 19275, Apr. 20, 1999,unless otherwise noted.

§ 77.1 Purpose and authority.

(a) The Department of Justice is committed to ensuring that its attorneysperform their duties in accordance with the highest ethical standards. Thepurpose of this part is to implement 28 U.S.C. 530B and to provide guidance toattorneys concerning the requirements imposed on Department attorneys by 28U.S.C. 530B.

(b) Section 530B requires Department attorneys to comply with state and localfederal court rules of professional responsibility, but should not be construedin any way to alter federal substantive, procedural, or evidentiary law or tointerfere with the Attorney General's authority to send Department attorneysinto any court in the United States.

(c) Section 530B imposes on Department attorneys the same rules ofprofessional responsibility that apply to non-Department attorneys, but shouldnot be construed to impose greater burdens on Department attorneys than those onnon-Department attorneys or to alter rules of professional responsibility thatexpressly exempt government attorneys from their application.

(d) The regulations set forth in this part seek to provide guidance toDepartment attorneys in determining the rules with which such attorneys shouldcomply.

§ 77.2 Definitions.

As used in this part, the following terms shall have the following meanings,unless the context indicates otherwise:

(a) The phrase attorney for the government means the AttorneyGeneral; the Deputy Attorney General; the Solicitor General; the AssistantAttorneys General for, and any attorney employed in, the Antitrust Division,Civil Division, Civil Rights Division, Criminal Division, Environment andNatural Resources Division, and Tax Division; the Chief Counsel for the DEA andany attorney employed in that office; the Chief Counsel for ATF and any attorneyemployed in that office; the General Counsel of the FBI and any attorneyemployed in that office or in the (Office of General Counsel) of the FBI; anyattorney employed in, or head of, any other legal office in a Department ofJustice agency; any United States Attorney; any Assistant United StatesAttorney; any Special Assistant to the Attorney General or Special Attorney dulyappointed pursuant to 28 U.S.C. 515; any Special Assistant United StatesAttorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to conductcriminal or civil law enforcement investigations or proceedings on behalf of theUnited States; and any other attorney employed by the Department of Justice whois authorized to conduct criminal or civil law enforcement proceedings on behalfof the United States. The phrase attorney for the government alsoincludes any independent counsel, or employee of such counsel, appointed underchapter 40 of title 28, United States Code. The phrase attorney forthe government does not include attorneys employed as investigators or otherlaw enforcement agents by the Department of Justice who are not authorized torepresent the United States in criminal or civil law enforcement litigation orto supervise such proceedings.

(b) The term case means any proceeding over which a state orfederal court has jurisdiction, including criminal prosecutions and civilactions. This term also includes grand jury investigations and relatedproceedings (such as motions to quash grand jury subpoenas and motions to compeltestimony), applications for search warrants, and applications for electronicsurveillance.

(c) The phrase civil law enforcement investigation means aninvestigation of possible civil violations of, or claims under, federal law thatmay form the basis for a civil law enforcement proceeding.

(d) The phrase civil law enforcement proceeding means a civilaction or proceeding before any court or other tribunal brought by theDepartment of Justice under the authority of the United States to enforcefederal laws or regulations, and includes proceedings related to the enforcementof an administrative subpoena or summons or civil investigative demand.

(e) The terms conduct and activity means any actperformed by a Department attorney that implicates a rule governing attorneys,as that term is defined in paragraph (h) of this section.

(f) The phrase Department attorney[s] is synonymous with thephrase “attorney[s] for the government” as defined in this section.

(g) The term person means any individual or organization.

(h) The phrase state laws and rules and local federal court rulesgoverning attorneys means rules enacted or adopted by any State or Territoryof the United States or the District of Columbia or by any federal court, thatprescribe ethical conduct for attorneys and that would subject anattorney, whether or not a Department attorney, to professional discipline, suchas a code of professional responsibility. The phrase does not include:

(1) Any statute, rule, or regulation which does not govern ethical conduct,such as rules of procedure, evidence, or substantive law, whether or not suchrule is included in a code of professional responsibility for attorneys;

(2) Any statute, rule, or regulation that purports to govern the conduct ofany class of persons other than attorneys, such as rules that govern the conductof all litigants and judges, as well as attorneys; or

(3) A statute, rule, or regulation requiring licensure or membership in aparticular state bar.

(i) The phrase state of licensure means the District ofColumbia or any State or Territory where a Department attorney is duly licensedand authorized to practice as an attorney. This term shall be construed in thesame manner as it has been construed pursuant to the provisions of Pub. L.96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the Departments ofCommerce, Justice and State, the Judiciary, and Related Agency AppropriationsAct, 1999, Pub. L. 105-277.

(j)(1) The phrase where such attorney engages in that attorney'sduties identifies which rules of ethical conduct a Department attorneyshould comply with, and means, with respect to particular conduct:

(i) If there is a case pending, the rules of ethical conduct adopted by thelocal federal court or state court before which the case is pending; or

(ii) If there is no case pending, the rules of ethical conduct that would beapplied by the attorney's state of licensure.

(2) A Department attorney does not “engage[] in that attorney'sduties” in any states in which the attorney's conduct is not substantialand continuous, such as a jurisdiction in which an attorney takes a deposition(related to a case pending in another court) or directs a contact to be made byan investigative agent, or responds to an inquiry by an investigative agent. Nordoes the phrase include any jurisdiction that would not ordinarily apply itsrules of ethical conduct to particular conduct or activity by the attorney.

(k) The phrase to the same extent and in the same manner as otherattorneys means that Department attorneys shall only be subject to laws andrules of ethical conduct governing attorneys in the same manner as such rulesapply to non-Department attorneys. The phrase does not, however, purport toeliminate or otherwise alter state or federal laws and rules and federal courtrules that expressly exclude some or all government attorneys from particularlimitations or prohibitions.

[Order No. 2216-99, 64 FR 19275, Apr. 20, 1999, as amended by OrderNo. 2650-2003, 68 FR 4929, Jan. 31, 2003
§ 77.3 Application of 28 U.S.C. 530B.

In all criminal investigations and prosecutions, in all civil investigationsand litigation (affirmative and defensive), and in all civil law enforcementinvestigations and proceedings, attorneys for the government shall conform theirconduct and activities to the state rules and laws, and federal local courtrules, governing attorneys in each State where such attorney engages in thatattorney's duties, to the same extent and in the same manner as other attorneysin that State, as these terms are defined in § 77.2 of this part.

§ 77.4 Guidance.

(a) Rules of the court before which a case is pending. Agovernment attorney shall, in all cases, comply with the rules of ethicalconduct of the court before which a particular case is pending.

(b) Inconsistent rules where there is a pending case. (1) Ifthe rule of the attorney's state of licensure would prohibit an action that ispermissible under the rules of the court before which a case is pending, theattorney should consider:

(i) Whether the attorney's state of licensure would apply the rule of thecourt before which the case is pending, rather than the rule of the state oflicensure;

(ii) Whether the local federal court rule preempts contrary state rules; and

(iii) Whether application of traditional choice-of-law principles directs theattorney to comply with a particular rule.

(2) In the process of considering the factors described in paragraph (b)(1)of this section, the attorney is encouraged to consult with a supervisor orProfessional Responsibility Officer to determine the best course of conduct.

(c) Choice of rules where there is no pending case. (1) Whereno case is pending, the attorney should generally comply with the ethical rulesof the attorney's state of licensure, unless application of traditional choice-of-law principles directs the attorney to comply with the ethical rule ofanother jurisdiction or court, such as the ethical rule adopted by the court inwhich the case is likely to be brought.

(2) In the process of considering the factors described in paragraph (c)(1)of this section, the attorney is encouraged to consult with a supervisor orProfessional Responsibility Officer to determine the best course of conduct.

(d) Rules that impose an irreconcilable conflict. If, afterconsideration of traditional choice-of-law principles, the attorney concludesthat multiple rules may apply to particular conduct and that such rules imposeirreconcilable obligations on the attorney, the attorney should consult with asupervisor or Professional Responsibility Officer to determine the best courseof conduct.

(e) Supervisory attorneys. Each attorney, including supervisoryattorneys, must assess his or her ethical obligations with respect to particularconduct. Department attorneys shall not direct any attorney to engage in conductthat violates section 530B. A supervisor or other Department attorney who, ingood faith, gives advice or guidance to another Department attorney about theother attorney's ethical obligations should not be deemed to violate theserules.

(f) Investigative Agents. A Department attorney shall notdirect an investigative agent acting under the attorney's supervision to engagein conduct under circumstances that would violate the attorney's obligationsunder section 530B. A Department attorney who in good faith provides legaladvice or guidance upon request to an investigative agent should not be deemedto violate these rules.

§ 77.5 No private remedies.

The principles set forth herein, and internal office procedures adoptedpursuant hereto, are intended solely for the guidance of attorneys for thegovernment. They are not intended to, do not, and may not be relied upon tocreate a right or benefit, substantive or procedural, enforceable at law by aparty to litigation with the United States, including criminal defendants,targets or subjects of criminal investigations, witnesses in criminal or civilcases (including civil law enforcement proceedings), or plaintiffs or defendantsin civil investigations or litigation; or any other person, whether or not aparty to litigation with the United States, or their counsel; and shall not be abasis for dismissing criminal or civil charges or proceedings or for excludingrelevant evidence in any judicial or administrative proceeding. Nor are anylimitations placed on otherwise lawful litigative prerogatives of the Departmentof Justice as a result of this part.