LEGAL FOR II. How Is It That ’s Rules INVESTIGATIVE AGENTS? Apply to Investigative Agents?

U.S. Department of Professional There are two general rules of Responsibility Advisory Office professional conduct that can make a May 2003 lawyer responsible for the conduct of an investigative agent with whom the lawyer There are many circumstances in is working. One rule (Rule 8.4(a)) states which attorney conduct rules will or may that it is professional misconduct for a have implications for investigative agents. lawyer to violate the rules of professional The rules themselves are written by and conduct through the acts of another. The for and are used to regulate the second rule (Rule 5.3(c)) states that a practice of law, although they require that lawyer is responsible for the conduct of a lawyers take steps to ensure that agents non-lawyer, if the lawyer supervised or and other non-lawyers with whom they are ordered the conduct or “ratifies” the working also abide by the rules. conduct or could have prevented or Therefore, investigators should familiarize mitigated the effects of the conduct. themselves with the requirements of these While the government lawyers with whom rules for two reasons: 1) to make you work do not directly supervise you, sure evidence is not excluded; and 2) to some judges may still hold them accountable for your conduct on account protect the reputations of your agencies. 1 This memorandum is intended to give you of the rules. Oftentimes, the government some familiarity with those rules of lawyer will urge that, if a court finds a rule professional conduct that most often come violation, any sanction be against the into play during investigations and to aid lawyer, not the case; but the court has you in avoiding pitfalls in your discretion and sometimes does prohibit the investigative work. lawyer from using evidence obtained by an agent in violation of the rules. In I. What Are the Rules of Professional addition, the cases differ about when a Conduct Anyway? lawyer “ratifies” the conduct of an agent or other non-lawyer. This issue comes up In order to practice law, a lawyer at trial when a defendant moves to have must be a member of a state bar. Each bar evidence excluded on the ground that the has adopted a set of rules that lawyers use of the evidence obtained by an agent must follow. The American Bar in violation of a rule constitutes a Association is a voluntary organization of ratification. The courts and legal lawyers that drafts model rules, which the authorities disagree on the answer to the various state bar organizations often adopt, question, but it is important for you to in whole or in part. The rules in each recognize it as an issue. jurisdiction are therefore unique, although there are general that apply in every jurisdiction. Failure to follow those 1 Rule 5.3(b) states that a lawyer having rules can result in sanctions to the lawyer, direct supervisory power over a nonlawyer has to including revocation of the lawyer’s make reasonable efforts to ensure that the license to practice law. nonlawyer’s conduct is compatible with the professional obligations of the lawyer. There is also a more specific rule A. Contacts with Represented that requires that prosecutors take special Persons. precautions to make sure that investigative agents do not make pre-trial, out-of-court Every jurisdiction has a provision statements that would have a substantial providing generally that a lawyer may not likelihood of materially prejudicing a communicate with a person the lawyer proceeding or that would have a knows to be represented about the subject substantial likelihood of heightening matter of the representation (ABA Model public condemnation of the accused (Rule Rule is 4.2). There are exceptions to this 3.8(f)). rule. The rule in every jurisdiction permits such a communication with the of When investigative agents learn the person’s lawyer. The rule in every about all the different requirements of the jurisdiction but two (Florida and Puerto attorney conduct rules, they sometimes Rico) contains language creating an argue that investigators should conduct exception for communications “authorized their investigations totally independently by law.” The rule on its own, or read in of the lawyer and in this way avoid the conjunction with other rules (such as Rule constraints of the attorney conduct rules. 8.4(a) and 5.3(c) discussed earlier), would As a practical matter, given the necessary prohibit an agent working on a case with a involvement of attorneys in issuing grand lawyer from engaging in a communication jury subpoenas, seeking wiretap orders, when the lawyer could not. and in other techniques used in investigating complex federal crimes, it This rule raises many questions, may be impossible for an attorney not to and there are numerous cases deciding be involved at the investigative stage. issues relating to it. The answers to the Moreover, you should be aware that, no questions differ, depending on the matter how independently the agents may applicable rule and the case law in the try to operate, courts may still apply the relevant jurisdiction. attorney conduct rules, either when a lawyer is consulted on a legal issue, such * How are you supposed to know as constitutional questions implicated in when an individual is represented by a interviewing a suspect, or not, as when the lawyer? lawyer simply tries to use the evidence. You have to pay attention III. What Exactly Do The Most to what the individual says Important and Relevant Rules Provide? on this issue. Also, where the individual has a lawyer For each of the following issues, on one case, for example, a you first should determine which rules of state investigation of health professional conduct apply and then care fraud, you probably examine the particular rule in question. should “know” that the You can do this by consulting an attorney individual is represented in in the governmental office who will your federal investigation handle the case. of the same matter, unless there are good reasons not to think so, e.g., when a lawyer tells you he does not covered by the rule’s represent the individual in prohibition. In other states, your investigation. however, even some low- level employees are * What if the individual has been considered to be represented in the past by a lawyer? represented by the corporation’s attorney. This fact alone would not be enough to know that the * Is a former employee considered individual is or is not to be represented by corporation’s represented. However, if attorney? the lawyer continues to In many jurisdictions, but work for the individual, not all, a former employee then that is a fact to be is not considered to be considered. represented by the corporation’s attorney. * If the “individual” is a That means that you are corporation that employs a general free to communicate with counsel, does the general counsel former employees about necessarily represent that corporation on most things but not about the matter you are investigating? “privileged matters.”

Generally speaking, the fact * Is it necessary to ask every that a corporation has a individual if he or she is represented? general counsel does not mean that the corporation is It usually is not necessary represented with respect to to ask every individual; that your investigation of a answer would change if particular incident or you have reason to believe practice. that someone is represented. In that case, * Which persons in the you should inquire. corporation does the corporation’s attorney represent? * If a corporate employee has his own counsel who would permit you to The answer to this question communicate with the individual, do you is going to depend on also have to get the consent of the where the case is or will be corporation’s attorney? tried, or where the lawyers are members of the bar. In many jurisdictions, but The states vary, and in not all, if a corporate some jurisdictions, such as employee has separate D.C., only employees who counsel, then you may have the power to bind the properly communicate with corporation with respect to the individual if you have the representation itself are the consent of that person’s specific law, a court order, separate counsel. or a previous decision of the court in that jurisdiction * Can the individual consent to the would permit it. communication or does the lawyer have to consent? * If the rule applies to post- indictment communications with No. Only the lawyer can represented persons, and the rules applies consent. to agents who are working with lawyers, is it permissible for agents who arrest an * Since the rule only prohibits indicted defendant to give Miranda communications about the subject matter warnings and get a statement from him? of the representation, are you permitted to talk with the individual about a different This is a difficult question, but related subject? not susceptible to a short answer and included here That depends on the so that you think about it. relationship between the A few states’ rules two. specifically permit post- arrest Mirandized * What is considered a communications with “communication”? (Is a letter a represented individuals; on communication? Can you just listen?) the other hand, at least one federal case suggests that it Listening and writing or is impermissible. receiving a letter are communications. B. You Must Not Use a Method of Obtaining Evidence That Violates the * Does the rule even apply before of Another Person. an individual is charged with a crime or a law suit is filed? Most jurisdictions have a rule or a number of rules that, read together, The answer to this question prohibit a lawyer and an agent working varies, depending on which with a lawyer from obtaining evidence by state’s rules apply and on violating the “legal rights” of another the stage of the person (ABA Model Rule 4.4(a)). The investigation. “legal rights” of a third person include constitutional and statutory rights and * When are you “authorized by rights recognized by case law, including law” to communicate with a represented privileges. For example, this rule has been person? used to prevent a lawyer from reviewing and copying psychiatric records of a This phrase has been litigant. It would prohibit you from asking interpreted to mean that questions if the answer would be you may communicate with privileged and the person you are asking a represented individual if a does not have the power to waive the privilege. The most common way in will have a substantial likelihood of which this rule would come into play is if, prejudicing an adjudicative proceeding in the course of an investigation, you (ABA Model Rule 3.6). Here, again, the lawfully obtain information that is rule applies to agents working with “privileged.” You may not always be able lawyers. There is another rule applicable to determine in advance whether a to prosecutors (ABA Model Rule 3.8) that document was intended to be privileged specifically requires the prosecutor to (and was inadvertently disclosed or was make efforts to prevent investigators and released by unauthorized persons), but other law enforcement personnel from there are some indicia that should put you making statements outside the courtroom on notice to ask some questions about the that the lawyer could not make. This document. For example, if a document is second rule explains that prosecutors and on a lawyer’s stationery, is addressed to a agents properly may make statements that client of the lawyer, and contains a notice inform the public about the investigation if such as “Confidential Attorney-Client those statements serve a legitimate law Privileged Document” then you have some enforcement purpose but should refrain idea that there might be a claim that it is from making statements outside the privileged. Before you read that document courtroom that “have a substantial and before you integrate it into the file, it likelihood of heightening public would be smart to find out how the condemnation of the accused.” You document came into your possession. If should be aware that, in some the client waived the privilege (as, for jurisdictions, the rules do not permit an example, a corporation may agree to do attorney (or an agent working with the during an investigation), there is no reason attorney) to identify or display the items not to read it. However, if the client did seized at the time of arrest or in not waive the privilege, there are connection with a search warrant. jurisdictions that would require you to return the document and also to refrain Since the publicity rules are from using it. If you have not separated designed to assure fair proceedings, it is out such a document and it is later found not surprising that the penalty for a to be privileged, you then would be hard violation of the rules can result in reversal pressed to establish that the information in of a conviction. it did not affect other parts of the investigation. Not every jurisdiction has D. You Must Always Be Honest such a rule, and so it is important to know With the Court. what the applicable jurisdiction requires. Every court requires those who C. Trial Publicity Rules appear before it to be honest (ABA Model Rule 3.3). Honesty means more than Every jurisdiction has a rule (either simply telling the truth. It may require a rule of professional conduct or a court you to make a statement, rather than leave rule) that provides that a lawyer should not the court with an erroneous impression. It make a statement that a reasonable person may require you to correct the record in would expect to be disseminated by means the court, even sometimes after a case has of public communication if the lawyer been closed. While you may know that knows or should know that the statement the legal authorities hold sacrosanct the attorney-client relationship -- that is in part suffer from the potential consequences of the reason for prohibiting a lawyer from such non-disclosures. disclosing the confidences of a client -- you may not know that in many E. Practice of Law and jurisdictions a duty of candor to the court Negotiation of Agreements trumps even the a duty of confidentiality to a client. This rule is particularly Every jurisdiction has its own exacting when the government lawyer is definition of what constitutes the practice the only one presenting evidence to the of law and provides that only those court, that is, when involved in an ex parte properly authorized may practice in that proceeding. jurisdiction; some jurisdictions have criminal statutes prohibiting the You may be surprised to learn that unauthorized practice of law. We refer to the candor rule applies whenever the such rules here because investigative government lawyer, through you, supplies agents who give advice to persons about information to the court, such as when you possible violations of various laws, who prepare an affidavit that is filed with the assist in the preparation or interpretation court. If the affidavit does not tell the of legal documents, or who “negotiate” whole story, then the case could suffer criminal penalties may be engaged in the consequences. Candor issues arise in unauthorized practice of law. Only many different circumstances. Here are government lawyers may properly some examples: negotiate pleas of guilty, cases of civil settlement, or the granting of immunity. – where a confidential informant Agents who attempt to negotiate on behalf identifies herself while on the stand of the government not only may subject and under oath with a name themselves to penalties, but they also may supplied by your agency but that is undermine the cases they are attempting to not her real name. resolve.

– where an affidavit in support of Reprinted with special permission a wiretap does not contain a of the DOJ Professional Responsibility complete picture of previous Advisory Office, Claudia Flynn, Director.

methods tried and failed and alternative options for the government to obtain the information without the wiretap.

– where, after testifying in a deposition, a government witness discovers that the information provided in the deposition was incorrect.

In each of these circumstances, both your cases and your reputation can