II

107TH CONGRESS

1ST SESSION S. 1437

To clarify the applicable standards of professional conduct for attorneys

for the Government, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 19, 2001

Mr. LEAHY (for himself, Mr. HATCH, and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on the

Judiciary

A BILL

To clarify the applicable standards of professional conduct

for attorneys for the Government, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Professional Standards

5 for Government Attorneys Act of 2001’’.

6 SEC. 2. PROFESSIONAL STANDARDS FOR GOVERNMENT AT7 TORNEYS.

8 (a) Section 530B of title 28, United States Code, is

9 amended to read as follows:
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1 ‘‘SEC. 530B. PROFESSIONAL STANDARDS FOR GOVERNMENT

2 ATTORNEYS.

3 ‘‘(a) DEFINITIONS.—In this section:

4 ‘‘(1) GOVERNMENT ATTORNEY.—The term

5 ‘Government attorney’—

6 ‘‘(A) means the Attorney General; the

7 Deputy Attorney General; the Solicitor General;

8 the Associate Attorney General; the head of,

9 and any attorney employed in, any division, of10 fice, board, bureau, component, or agency of

11 the Department of Justice; any United States

12 Attorney; any Assistant United States Attorney;

13 any Special Assistant to the Attorney General

14 or Special Attorney appointed under section

15 515; any Special Assistant United States Attor16 ney appointed under section 543 who is author17 ized to conduct criminal or civil law enforce18 ment investigations or proceedings on behalf of

19 the United States; any other attorney employed

20 by the Department of Justice who is authorized

21 to conduct criminal or civil law enforcement

22 proceedings on behalf of the United States; any

23 independent counsel, or employee of such coun24 sel, appointed under chapter 40; and any out25 side special counsel, or employee of such coun-
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1 sel, as may be duly appointed by the Attorney

2 General; and

3 ‘‘(B) does not include any attorney em4 ployed as an investigator or other law enforce5 ment agent by the Department of Justice who

6 is not authorized to represent the United States

7 in criminal or civil law enforcement litigation or

8 to supervise such proceedings.

9 ‘‘(2) STATE.—The term ‘State’ includes a Ter10 ritory and the District of Columbia.

11 ‘‘(b) CHOICE OF LAW.—Subject to any uniform na12 tional rule prescribed by the Supreme Court under chapter

13 131, the standards of professional responsibility that

14 apply to a Government attorney with respect to the attor15 ney’s work for the Government shall be—

16 ‘‘(1) for conduct in connection with a pro17 ceeding in or before a court, the standards of profes18 sional responsibility established by the rules and de19 cisions of that court;

20 ‘‘(2) for conduct reasonably intended to lead to

21 a proceeding in or before a court, the standards of

22 professional responsibility established by the rules

23 and decisions of the court in or before which the

24 proceeding is intended to be brought; and
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1 ‘‘(3) for all other conduct, the standards of pro2 fessional responsibility established by the rules and

3 decisions of the Federal district court for the judicial

4 district in which the attorney principally performs

5 his or her official duties.

6 ‘‘(c) LICENSURE.—A Government attorney (except

7 foreign counsel employed in special cases)—

8 ‘‘(1) shall be duly licensed and authorized to

9 practice as an attorney under the laws of a State;

10 and

11 ‘‘(2) shall not be required to be a member of

12 the bar of any particular State.

13 ‘‘(d) COVERT ACTIVITIES.—Notwithstanding any

14 provision of State law, including disciplinary rules, stat15 utes, regulations, constitutional provisions, or case law, a

16 Government attorney may, for the purpose of enforcing

17 Federal law, provide legal advice, authorization, concur18 rence, direction, or supervision on conducting covert activi19 ties, and participate in such activities, even though such

20 activities may require the use of deceit or misrepresenta21 tion.

22 ‘‘(e) ADMISSIBILITY OF EVIDENCE.—No violation of

23 any disciplinary, ethical, or professional conduct rule shall

24 be construed to permit the exclusion of otherwise admis25 sible evidence in any Federal criminal proceeding.
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1 ‘‘(f) RULEMAKING AUTHORITY.—The Attorney Gen2 eral shall make and amend rules of the Department of

3 Justice to ensure compliance with this section.’’.

4 (b) TECHNICAL AND CONFORMING AMENDMENT.—

5 The analysis for chapter 31 of title 28, United States

6 Code, is amended, in the item relating to section 530B,

7 by striking ‘‘Ethical standards for attorneys for the Gov8 ernment’’ and inserting ‘‘Professional standards for Gov9 ernment attorneys’’.

10 (c) REPORTS.—

11 (1) UNIFORM RULE.—In order to encourage the

12 Supreme Court to prescribe, under chapter 131 of

13 title 28, United States Code, a uniform national rule

14 for Government attorneys with respect to commu15 nications with represented persons and parties, not

16 later than 1 year after the date of enactment of this

17 Act, the Judicial Conference of the United States

18 shall submit to the Chief Justice of the United

19 States a report, which shall include recommenda20 tions with respect to amending the Federal Rules of

21 Practice and Procedure to provide for such a uni22 form national rule.

23 (2) ACTUAL OR POTENTIAL CONFLICTS.—Not

24 later than 2 years after the date of enactment of

25 this Act, the Judicial Conference of the United
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1 States shall submit to the Chairmen and Ranking

2 Members of the Committees on the Judiciary of the

3 House of Representatives and the Senate a report,

4 which shall include—

5 (A) a review of any areas of actual or po6 tential conflict between specific Federal duties

7 related to the investigation and prosecution of

8 violations of Federal law and the regulation of

9 Government attorneys (as that term is defined

10 in section 530B of title 28, United States Code,

11 as amended by this Act) by existing standards

12 of professional responsibility; and

13 (B) recommendations with respect to

14 amending the Federal Rules of Practice and

15 Procedure to provide for additional rules gov16 erning attorney conduct to address any areas of

17 actual or potential conflict identified pursuant

18 to the review under subparagraph (A).

19 (3) REPORT CONSIDERATIONS.—In carrying out

20 paragraphs (1) and (2), the Judicial Conference of

21 the United States shall take into consideration—

22 (A) the needs and circumstances of

23 multiforum and multijurisdictional litigation;
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1 (B) the special needs and interests of the

2 United States in investigating and prosecuting

3 violations of Federal criminal and civil law; and

4 (C) practices that are approved under Fed5 eral statutory or case law or that are otherwise

6 consistent with traditional Federal law enforce7 ment techniques.

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