In some future case challenging attorney conduct in the course of a state-court trial, we may need to define with greater precision the weight to be given to recognized canons of ethics ... (1)
Since at least 1908, state ethics rules have prohibited attorneys from communicating with persons represented by another attorney about the subject of that representation.(2) Today, all fifty states and the District of Columbia recognize this prohibition, known as the "no-contact rule," in one form or another.(3) While its precise wording and interpretation vary widely across jurisdictions,(4) the gist of the no-contact rule remains the same in virtually every state: unless permitted by opposing counsel or "authorized by law," ex parte contact with a represented person about the subject of that representation is strictly forbidden.(5)
The no-contact rule, along with most other ethics rules, is codified at both state and federal levels.(6) Courts and state bar associations aggressively enforce the rule, disciplining attorneys for unintentional contact, client-initiated contact--even attempted contact with a represented person.(7) Not everyone in the legal community has acquiesced in the no-contact rule's broad reach, however. Since 1980, the Department of justice (DOJ) has contended that its 7,000-plus federal prosecutors are exempt from the no-contact rule altogether.(8)
Until the past five years or so, the Justice Department's position received relatively little attention.(9) That changed when its stance became "official policy" in 1989,(10) following a memorandum issued by then-Attorney General Dick Thornburgh to all Justice Department litigators.(11) The "Thornburgh Memorandum," as the document came to be known, purported to exempt from the no-contact rule all federal prosecutors engaged in legitimate law enforcement activities.(12) Invoking the Supremacy Clause, the Justice Department maintained that states were precluded from regulating DOJ attorneys in ways that could interfere with their statutory responsibilities to enforce federal law.(13)
The Thornburgh Memorandum sent "shock waves" throughout the legal community.(14) The Defense Bar Association, joined by the American Bar Association and others, condemned the move as a "wink of encouragement" for federal prosecutors to toss ethical considerations aside whenever doing so might help obtain a conviction.(15) Courts, too, were scathing in their response. To many judges, the Thornburgh Memorandum was itseLf an unconstitutional theft of judicial authority, clearly undeserving of the preemptive power of federal law.(16) After all, it was only a memorandum.
Until this past year, that is. Under the direction of current Attorney General Janet Reno, the Department of Justice recently codified a slightly modified version of the Thornburgh Memorandum into a Departmental regulation, which I refer to below as the "Reno Rule."(17) Effective as of September 6,1994, the Reno Rule marks the zenith of a fourteen-year attempt by the Justice Department to exempt federal prosecutors from the no-contact rule. Not surprisingly, the Rule has sparked a debate of constitutional proportions, implicating both the Supremacy Clause and the separation of powers principle in a battle that may ultimately alter the balance of power between the state and federal governments--at least regarding the regulation of U.S. attorneys.(18)
Despite otherwise intense disagreement on this issue,(19) both sides to the Reno Rule debate seem to agree on one point: unless resolved by Congress, the Reno Rule's authority to exempt federal prosecutors from the no-contact rule will be settled in court, perhaps the nation's highest.(20) That being the case, the justice Department's legal defense of the Reno Rule, as offered in the Rule itself, is certainly worthy of examination. In the analysis that follows, I undertake that examination, arguing that the Justice Department's position is analytically flawed in considering separately the Reno Rule's statutory authority and preemptive power over state laws. …