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Letters to the 107th Congress

June 18, 2002

The Honorable F. James Sensenbrenner, Jr.
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

I write to express our sincere appreciation for your continuing support for the McDade-Murtha law enacted in 1998 to ensure that Department of Justice (DOJ) lawyers are not exempt from state and federal ethics rules that apply to all other lawyers nationwide.

I understand that efforts are being made to attach the provisions of S.1437, the Professional Standards for Government Attorneys Act, to the DOJ reauthorization bill, H.R. 2215, currently in conference.

The Senate-proposed provisions do address certain questions that have arisen regarding the application of McDade-Murtha, and the ABA does appreciate the efforts by Senators Leahy and Hatch and their staffs to obtain and seriously consider the views of the ABA on this issue. We believe, however, that these provisions are seriously flawed and urge that they not be included in H.R 2215. The provisions involve complex issues concerning choice of law, a first-time national federal rule for contacts with represented parties, and the admissibility of evidence subsequent to prosecutorial misconduct, all of which should be addressed only after all parties, including the bar and the state judiciary, have had an adequate opportunity to present their views.

In 2000, a leadership group of the ABA and the Conference of Chief Justices spent many hours with officials of the Justice Department attempting to forge amendments to the ABA Model Rules of Professional Conduct that would accommodate legitimate law enforcement activities. We regret that those efforts, while productive and very helpful in narrowing the issues in controversy, were ultimately unsuccessful.

We continue to believe that such a collegial process, which respects the tradition of judicial regulation whereby the courts of each state are responsible for the adoption and enforcement of ethical rules governing the conduct of lawyers practicing in their jurisdiction, is far preferable to legislating a "quick fix" solution that establishes for the first time one set of rules for federal government lawyers, and another set of rules for everyone else.

The ABA stands ready to work with the Department of Justice and the Conference of Chief Justices to resolve the long debate on these issues.

We appreciate your consideration of our views.


Robert E. Hirshon
President, American Bar Association


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