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Save The McDade-Murtha Law!
Indispensable Checks and Balances
in Era of Expanded Law Enforcement Powers
Related Articles
"Prosecutor Misconduct in Two Recent High-Profile Cases: Why it Happens and How We Can Better Prevent it," by Elaine Cassel, FindLaw Legal Commentary, Feb. 12, 2004
Summary
The Senate’s counter-terrorism legislation contains a dangerous provision that would effectively gut the McDade-Murtha Law, which requires that federal prosecutors abide by state ethics rules. Given the expanded powers sought by the Department of Justice, now is not the time to reduce the ethical obligations of federal prosecutors. The anti-McDade-Murtha provision, which is not contained in the House counter-terrorism bill, is opposed by NACDL, the ABA, ACLU, the American Corporate Counsel Association and other groups.
Attorney Discipline is a State Function
As the Supreme Court has observed, “Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions.” Leis v. Flynt, 439 U.S. 438, 442 (1979). Fundamental to this role is the creation of rules of ethics and disciplinary procedures, as well as the investigation and punishment of misconduct. State disciplinary rules have traditionally applied to all lawyers — including state and federal prosecutors.
The Fox Guarding the Henhouse: The Thornburgh Memorandum
In 1989, then-Attorney General Richard Thornburgh issued a memorandum (“Thornburgh Memorandum”) which purported to unilaterally exempt DOJ lawyers from certain state rules of ethics governing all other lawyers. Specifically, the Department declared itself exempt from the fundamental ethical prohibition against interrogating represented persons outside the presence of the person’s lawyer, a rule designed in part to ensure that lawyers do not use their legal knowledge to take advantage of non-lawyers. As applied to federal prosecutors, this rule is essential to protect counseled persons from improper contacts by those who wield the extensive power of the government.
The Department abused this self-created power to interrogate and in some cases intimidate employees of corporations, small businesses, and individual citizens under criminal or civil (regulatory) investigation.
McDade-Murtha Law Restores the Traditional Role of the States
The McDade-Murtha Law was enacted in 1998 to reaffirm the traditional role of the states in this area. The McDade-Murtha Law, codified at 28 U.S.C. § 530A, clarifies that federal prosecutors, like all other lawyers, are subject to state ethical rules governing attorney conduct.
Overwhelming Support for the McDade-Murtha Law
This law was the subject of hearings before the House Subcommittee on Courts and Intellectual Property (Sep. 12, 1996) and received overwhelming bipartisan support in the House of Representatives. 345 Members voted in favor of the amendment.
Republican supporters included Speaker Dennis Hastert (R-IL), the former and current Chairmen of the House Judiciary Committee, Rep. Henry Hyde (R-IL) and Rep. James Sensenbrenner (R-WI), Crime Subcommittee Chairman Lamar Smith (R-TX), and Majority Whip Tom DeLay (R-TX). Democratic supporters included Minority Leader Richard Gephardt (D-MO) and then Rep. Charles Schumer (D-NY) (now Chairman of the Senate Subcommittee on Administrative Oversight and the Courts).
DOJ’s Ongoing Efforts to Avoid State Ethics Rules
Almost immediately, the Department of Justice and the National Association of Assistant United States Attorneys began calling for Congress to repeal the McDade-Murtha Law, and managed to secure a 6-month delay in the effective date. Legislation that would repeal or abrogate the mandates has stalled in the past, but a new threat has emerged this Congress.
Senator Leahy has introduced the “Professional Standards for Government Attorneys Act of 2001" (S. 1437), legislation that would supercede the McDade-Murtha Law. This proposal has been included in Senator Leahy’s counter-terrorism legislation which passed the Senate on October 11. This has absolutely nothing to do with the appropriate government powers to combat terrorism. The Leahy proposal would divest state authorities of their traditional authority to determine and enforce rules of ethics for all the attorneys they license.
The House version of counter-terrorism legislation wisely leaves the McDade-Murtha Law intact.
No Reason for Change
Larry Thompson, in an article written prior to his confirmation as the Deputy Attorney General, stated that “even law enforcement concerns do not justify the creation of less demanding ethics rules for DOJ lawyers.” Based on his years as a United States Attorney during the Reagan Administration, he explained that, as a practical matter, no ethical rule “presents any serious problems for DOJ lawyers.” Larry D. Thompson, The McDade Law is Good for the Profession, Federal Lawyer (Jan. 2001).
The argument that the McDade-Murtha Law subjects prosecutors to conflicting state ethics rules is unpersuasive. The ABA’s Model Rules have been adopted by most of the states; thus, most state (and federal district courts) base their own no-contact rules on the ABA’s Model Rule 4.2. In the rare instance where a conflict may arise, the solution is to abide by the more restrictive rule.
Alarmist predictions that state disciplinary authorities will be unsympathetic to federal prosecutors are also unfounded. A recent empirical study found that prosecutors seldom face disciplinary action to the same degree faced by the private civil bar. Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 North Carolina Law Review 721 (2001). In fact, when prosecutors complained that an Oregon ethics rule interfered with traditional law enforcement activities, state disciplinary authorities and lawmakers crafted new rules to accommodate the prosecutors’ concerns.
The inter-departmental system for disciplining DOJ attorneys, the Office of Professional Responsibility (OPR), has been aptly characterized as the “fox guarding the henhouse.” The OPR is charged with investigating allegations of attorney misconduct and reporting to state bar associations and Justice officials. In one case, a well-known conservative judge asked, “How can it be that a serious claim of prosecutorial misconduct remains unresolved — even unaddressed — until oral argument in the Court of Appeals?” United States v. Kojayan, 8 F.3d 1315, 1329 (9th Cir. 1993) (Judge Alex Kozinski).
A recent report by the General Accounting Office (GAO) found that significant problems still plague the OPR. The GAO found that only "intentional professional misconduct" is reported to state bars, even if a state wants information on other misconduct. The report also questioned OPR's record-keeping and found that some department attorneys who committed violations were not disciplined, but appear to have been rewarded with new appointments. Chairman James Sensenbrenner (R-WI) joined Reps. Henry Hyde (R-IL) and Bill Delahunt (D-MA) in a letter to Attorney General John Ashcroft detailing their concerns with the OPR, asking questions, and requesting a staff briefing.
These unanswered concerns, coupled with the expansive new law enforcement powers contemplated by House and Senate counter-terrorism legislation, are all the more reason not to undermine state authority in this area by repealing or modifying the McDade-Murtha Law.
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National Association of Criminal Defense Lawyers (NACDL)
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