# Presentation: 086528

##           ETHICS

**By:  Gordon Zubrod, AUSA**
**	****    ****Middle District of Pennsylvania**

## CASE NO.  1

## An AUSA in the Civil Affirmative Enforcement Section is representing the United States in a false claims act case against a dietary supplement provider.  The HHS IG has developed strong evidence that the defendant billed medicare for supplying supplements which were never delivered.

**The loss to the government, over a period of three years, exceeds $1.5 million.  The AUSA has discussed the case at the bi-weekly meetings of the working group on parallel proceedings in the U.S. Attorney's Office, which includes AUSAs for the criminal divisio**n.

## May he do so?

**May he do so?**

## The Answer is  ANO@.

- The AUSA is using the threat of a criminal prosecution to force a settlement in a civil proceeding.

- ABA Code of Professional Responsibility
-     7- 105:
- "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."

## 28 U.S.C. Section 530b:  

- Department of Justice attorneys are
- 		"Subject to state laws and rules and local federal court rules, governing attorneys in each state where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that state."

## EXCEPTIONS:

**The criminal matter is related to the civil claim;**

**The lawyer has a well founded belief that both the civil claim and the possible criminal charges are warranted by the law and the facts;**

**The lawyer does not attempt to exert or suggest improper influence over the criminal process.**

## Standard USAO policy:  Civil referral to the criminal division is required when evidence of criminal misconduct arises in a civil proceeding.

**The criminal division makes a prosecutive decision.**

## Criminal AUSA to Litigants:

**You are a target;**
**If you want to address the civil issues by way of a global resolution, write me a letter asking that the civil division participate.**

**Civil AUSA to Litigants:**
**The case has been referred to the criminal division;**
**I have no authority to address criminal issues;**
**Go see the criminal division AUSA.**

## NOTE:		BE CAREFUL THAT YOU

**DON**'**T BIND ANOTHER ****	****DISTRICT CIVILLY OR CRIMINALLY**.
- [ USAM9-27.641 ]

**Express written approval of the affected district is required.**

**The plea agreement / civil settlement must state that the agreement does not bind any other district.**

## Even if the district doesn't agree, they are still bound by the agreement you make with the defendant.

**Require the defendant to identify all districts in which they may have exposure.**

## Slide 12

## The Reach of 28 USC 530b (continued)

**However,** if the ethical rule is not inconsistent with federal law, then it's applicable to AUSAs.

## Conclusion

- Know the codes of professional responsibility applicable to your district
- Know the office policy regarding the handling of various types of cases
- DOJ has prior approval requirements for the most sensitive types of cases: know them -          USAM 1-3.000
- Professional Responsibility Officer and the Professional Responsibility Advisory Office B 202-514-0458

## CASE NO.  2

## The DOD IG is investigating a procurement fraud case where a government contractor, Fly High Avionics, Inc., is suspected of defrauding the Defense Department through inflated and false billings.

- Fly High was required to use new components for gyroscopes and other navigational aids in Air Force and Navy fighter aircraft.  In truth, the corporation inserted used components which could lead to a catastrophic failure at an inopportune time.

## The IG  has a former employee as a cooperating witness.  He advises the IG that a close friend of his, Joe, who is still employed by Fly High, has expressed his strong discomfort with how things are going at the corporation.  Joe works in the accounting department, which prepares the invoice and cost data to the DOD.

- Joe has told our cooperating witness that he has been called in by senior management and told that he needs to be "loyal and faithful" to the corporation if he is questioned by law enforcement.

## Can that be done?

**Can that be done?**

## Still employed by the corporation;

- The answer is Yes, but.....

**Strong discomfort with how things are going at the corporation;**

**Pressure by senior management to be a "team player";**

**If he is questioned by law enforcement****.**

## RULE:

**The Government may not initiate contact with represented persons.**
**ABA Model Rule 4.2**

## WHEN CAN YOU SPEAK WITH AN EMPLOYEE?

**When an employee initiates contact**;

**Former employee;**

**Evidence of ongoing criminal activity.  i.e., Subornation of perjury, obstruction of justice.**

## APPLICATION:

- Simultaneous interviews of middle & upper level management;

- These interviews occur pre-indictment /
-    pre- litigation.

- First question:    "Do you have an attorney?"

- Most middle level managers will say "no" and will talk to you...but only at the first interview.

- You will get some of your best corporation- binding admissions in the simultaneous interviews.

## Former employees are not employees in regard to the no contact rule.

**Therefore, contact with the middle man (former employee) is ok.**

**But, beware of turning the middle man into an agent of the government.**

**You can explain the law to him, but you cannot direct him to talk to the employee and to urge him to speak with the agents.**

## CONTACT WITH JOE

**(The Current Employee)**

**Here, the investigation would be into perjury, subornation of perjury, obstruction of justice, intimidation of potential witnesses****.**

**The United States is entitled to obtain evidence regarding new additional crimes, even though the target is already under indictment.**

## However, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges under the Sixth Amendment.

**  ****Maine v. Moulton, 106 S.Ct.  477, 489,**
-   474 U.S. 159, 180 (1985)

**The problem comes if the Court requires you to prove that none of your evidence in the first case was derived from your investigation of the perjury / obstruction case.  This can prove to be an impossible burden.**

## You must build a "chinese wall", that is, a second team of agents and a prosecutor screens the evidence in order to make sure that the "defense camp" is not penetrated and the defendants' 6th amendment right to counsel is not infringed upon.

**The second team may contact Joe , determine the nature of the pressure being applied, and make a prosecutive decision.**

## employee initiated contact.

**AUSA advised employee that she had a right to be represented by counsel.**
**employee advised that she had been pressured to give false testimony.**

_***United States v. Talao***_, 222 F.3d 1133
-    (9th cir. 2000)

## the "no contacts" rule existed to preserve the attorney-client relationship and the proper functioning of the administration of justice.  Perjury would subvert the administration of justice.

## RULE OF ENGAGEMENT:

**The information sought is not protected from disclosure by any applicable privilege;**

**The evidence sought is essential to the successful completion of an ongoing investigation or prosecution;**

**There is no other feasible alternative to obtain the information.**

## Slide 30