tactics || lawyers bypassing lawyers

Lawyers Bypassing LawyersAuthor(s): Charles A. WeissSource: Litigation, Vol. 28, No. 2, TACTICS (Winter 2002), pp. 42-47, 71Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760270 .

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Lawyers Bypassing Lawyers

by Charles A, Weiss

It is a glorious October afternoon. You are sitting in your office on the 32nd floor, overlooking downtown and the river?

front, making last-minute revisions to a brief. The phone rings. It is Walter Miller, associate general counsel of National Aerospace, a longtime client of your firm and major defense contractor for the U.S. government. He tells you that

somebody they fired has filed a federal whistleblower action

against the company, claiming that National Aerospace over? stated labor costs on several government projects. To thicken the plot, the government wants to intervene. But what really has got Miller worked up is that federal investigators con? tacted two current employees at home.

In each case, without any notice, an investigator knocked on the employee's door at dinnertime. The agent identified himself as representing the U.S. Department of Justice (DOJ), displayed a badge, and asked whether he could come inside to ask a few questions. The investigator began by stating that the

government had information that National Aerospace engaged in mischarging labor hours on military contracts,

including a contract on which the employee had worked. The

investigator warned that, although the investigation was aimed at the company, employees who failed to cooperate or tell the truth could also be subject to criminal penalties. The

agent then said that by answering a few simple questions now, the employee could avoid being served with a subpoena.

The employees complained to Miller about the ambush interview in front of their families. When asked how they felt, one employee said, "How do you think I felt? I was scared." Both employees said they were confused about their rights and how to respond. As it turned out, in each case the

employee provided very little information but told the agent that he wanted to check with his supervisor the next day before answering further questions.

Miller immediately checked around. He learned that the

government was not limiting its interviews to current employ? ees; without notice to the company, it also had begun to

Charles A. Weiss is a partner with Bryan Cave LLP in St. Louis, Missouri.

approach former employees, using the same technique: send?

ing investigators to their homes in the evening, scaring every? body in the household.

Additionally, Miller learned that the government agents were sending written interrogatories to a number of current and former employees of National Aerospace. Miller got a

copy of these. They were sent under cover of a letter bearing the letterhead of the Inspector General, Department of

Defense, Defense Criminal Investigative Service, Central Field Office. The cover letter explained that the Office of

Inspector General and the FBI were conducting an investiga? tion related to the labor-charging practices at National Aero?

space and that, as part of the investigation, the employee had been identified as a current or former employee of the com?

pany. The letter stated the employee was not a "target" of the

investigation but asked for information to assist the govern? ment in its inquiry. The employee was asked to complete the

questionnaire and forward it to Agent Purnelli of the Defense Criminal Investigative Service's central field office. If the

employee had any questions, he was directed to contact Agent Purnelli or Special Agent Ring at the FBI.

The questionnaire gave the employee the option of identi?

fying himself or remaining anonymous. It asked the employee to list the dates of his employment with the company and the

departments in which he worked. It then asked the employee the following: (1) if he ever charged time to a work order that he did not actually perform, (2) if he was ever told to charge time to one part of an aircraft when he was working on a dif? ferent part, (3) if he ever charged time to a contract other than the one on which he was actually working, (4) if he ever

attempted to charge time to a work order only to find out that another employee had incorrectly charged time to the

employee's task, and (5) if a foreman or other manager ever

incorrectly or improperly recorded labor charges for the

employee. The questionnaire also asked the employee to iden?

tify the names of all employees and managers who were involved in incorrect or improper charging of labor hours and to provide copies of any records or the location of any records

Litigation Winter 2002 Volume 28 Number 2



that the employee thought might relate to incorrect or

improper charging. Miller tells you that he feels certain that the DOJ lawyers

involved were violating the ethics rules. He asks, how can

government investigators and lawyers go behind the com?

pany's back to get statements from current and former

employees in connection with litigation? The DOJ, and par? ticularly the defense criminal investigative division, was well aware from past dealings that the company was represented by both in-house counsel and your firm.

Miller wants your advice. You tell him that you will begin work immediately and arrange to meet him tomorrow at 4

p.m. at his office to discuss the matter, after you have had an

opportunity to do some preliminary research and review the

questionnaire. How far can the government go in conducting ex parte

contacts, and what are the remedies available to a company when the government crosses the line? You look at the law on the issue. Before long, you realize that the answers are not always simple.

You quickly focus on the American Bar Association's Model Rule of Professional Conduct 4.2, which provides, "In

representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

This rule is the same as the ABA Model Code of Professional

Responsibility DR7-104(A)(1), except that DR7-104(A)(1) uses the word "party" in place of the word "person."

The ethical restriction on attorneys' ex parte contacts with adverse parties applies in all states. It was found in the initial version of the ABA's Canons of Professional Ethics promul? gated in 1908. Every ABA ethical code since then has con? tained a no-contact provision. Each state prescribes the qual? ifications for admission to practice law and the standards of

professional conduct, and the state bar is responsible for the

discipline of lawyers. The rules of professional conduct are not mandated by statute. Rather, they are rules adopted by the state courts in regulating members of the bar. Federal trial and

appellate courts also adopt ethics rules for the attorneys who

practice before those courts, often incorporating by reference the ethics rules of the state in which the federal court sits.

Every state has adopted a rule the same as, or similar to, Model Rule 4.2 that forbids ex parte contacts. The anti-con? tact rule is indisputably a well-established principle of legal ethics in this country.

But the real questions in this area have not focused so much on the text of the rule but on whether it applies at all to gov? ernment lawyers. You find that federal prosecutors have a long history of contesting the applicability of the rule to them. The

subject has been addressed by internal DOJ memoranda, a fed? eral regulation, court decisions, and even an act of Congress.

The Basics First you educate yourself on the basics. You look to the rea?

sons for the no-contact rule. The purpose of Rule 4.2 is to pre? vent lawyers from taking advantage of uncounseled lay persons and to preserve the integrity of the lawyer-client relationship. The rule is intended to prevent lawyers from using superior skills and training to obtain "unwise statements" from opposing parties. It protects the lawyer-client relationship from interfer? ence by opposing attorneys and facilitates setdements by allow?

ing lawyers skilled in negotiations to conduct discussions. The rule forbids contacts concerning only matters in which

the person is represented by counsel. The rule does not pro? hibit an attorney from contacting a party or an employee or

agent of the party regarding matters outside the representa? tion. For example, the ABA has opined that the existence of a

controversy between a government entity and a private party, or between two organizations, does not preclude a lawyer for either side from communicating with nonlawyer representa? tives of the other, concerning a separate matter.

The rule applies to lawyers, not parties. Of course, parties to a matter may communicate directly with each other, even

though one or both may be represented by lawyers. When a

lawyer is himself a party to the controversy, he is said to be rep? resenting himself, and it has been held that he should not directly contact a represented opponent. And the rule cannot be circum? vented by a lawyer's using an investigator, agent, or some other




person to contact a represented person in circumstances where the lawyer himself would be prohibited from the ex parte con? tact. When a lawyer instructs or knowingly permits another per? son to interview a represented person about a matter in which the

lawyer is representing a client, he violates Rule 4.2. You then focus on the important issue at hand, contact with

corporate employees and ex-employees. The rule forbids con? tact with represented organizations, such as corporations, part? nerships, and other entities. However, it does not cover all

employees of an organization. The rule has been held to pro? hibit a lawyer from communicating with employees of an

opposing organization (1) who have managerial responsibility on behalf of the organization, (2) whose acts or omissions in connection with the matter may be imputed to the organization for purposes of civil or criminal liability, or (3) whose state? ments may constitute an admission on the part of the organi? zation. If an employee of the organization is represented in the

matter by her own counsel, that counsel's consent to a com?

munication would be sufficient for purposes of the rule. Cases conflict on the applicability of the anti-contact rule to

former employees. The majority of precedents holds that the rule applies only to current employees of an organization and that it is fair game for a lawyer to contact former employees of an opposing organization without the organization's consent, if the employee is not separately represented in the matter. The rationale for this view seems to be that the rule does not by its terms purport to apply to former employees and that former

employees could not speak for or bind the organization. Some courts, however, have held that in certain circum?

stances former employees are covered by the rule. For example,

Federal prosecutors regard the anti-contact rule as

inhibiting and restrictive.

in Camden v. State of Maryland, 910 F. Supp. 1115 (D. Md.

1996), the court concluded that the plaintiff's lawyers should not have contacted an affirmative action specialist who had worked for the defendant university and investigated the plain? tiff's original complaint to the university. The court then ruled that an affidavit obtained by the plaintiff's attorney should be

quashed and the plaintiff's firm should be disqualified. Ex parte contacts with former employees also can violate

the rule when such former employees had managerial respon? sibilities regarding the matter in controversy. In addition, some advisory opinions of bar counsel have concluded that the rule bars contacts with former employees on the same basis as current employees.

Regardless whether former employees are covered by the no-contact rule, a lawyer who contacts a former employee ex

parte must be careful not to induce the employee into

divulging attorney-client privileged information arising from communications with the former employer's counsel. Model Rules 4.3 and 4.4 require that when a lawyer contacts a for? mer employee of a represented organization ex parte, the

lawyer should: (1) explain the lawyer's role in the matter

relating to the discussion, (2) identify the lawyer's client and

the fact that the employee's former employer is an adverse

party, and (3) caution the employee not to reveal any privi? leged information he or she may have learned during the for?

mer employment. The prohibition on communications with a represented per?

son applies only where the lawyer knows that the person is in fact represented in the matter to be discussed. But such

knowledge may be inferred from the circumstances, where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. A lawyer cannot evade the requirement of

obtaining the consent of counsel by closing his eyes to the obvious. It may be presumed, unless or until otherwise shown, that managerial employees or employees whose acts or omis? sions may be imputed to the company for purposes of liabil?

ity are represented by in-house counsel.

Application to Government Attorneys As you get deeper into your research, you learn that federal

prosecutors have struggled with the rule's application to them. Not surprisingly, federal prosecutors regard the anti-contact rule as inhibiting and restrictive. They contend it complicates the investigation and prosecution of civil and criminal law violations. They argue that it impairs the government's ability to conduct undercover investigations, hampers pre-indictment contacts, and complicates prosecutors' reliance on wiretaps, undercover agents, and cooperating witnesses. They want to be free to have their investigative agents contact employees and former employees of target companies, even those repre? sented by attorneys.

Federal prosecutors argue that the framework of the rules of

professional conduct, which can differ from state to state, imposes different standards on them depending upon the state in which they happen to be prosecuting or investigating a mat? ter. Of course, all attorneys who practice in different states or in different courts are faced with the same problem. And because the rule relating to ex parte contacts is the same or similar in all states, the problem with inconsistencies does not seem to be a serious one.

Feeling strongly that its lawyers and agents should not be constrained by the ethics rule, the DOJ's Office of Legal Coun? sel in 1980 issued a memorandum opinion stating that the pre? decessor to Rule 4.2 (DR7-104) did not preclude federal pros? ecutors from contacting witnesses and suspects without the

knowledge of their counsel before the start of formal adversar? ial proceedings. The opinion was based, in part, on language in

DR7-104 that permitted contact with the represented parties when the contact was "authorized by law." The DOJ contended that it had the power to draft regulations that were a "reasonable and necessary means to effectuate" a duty imposed by statute, i.e., the Attorney General's duty to prosecute all offenses

against the United States as provided in 28 U.S.C. ? 547(1). This 1980 opinion engendered little resistance, and the period from 1980 to 1988 saw scant action to enforce the application of Rule 4.2 against federal prosecutors.

In 1988, however, the Second Circuit in United States v.

Hammad, 858 F.2d 834, 838, 842 (2d Cir. 1988), dealt a blow to the government's position. The Hammad case involved

charges of Medicaid fraud. The defendant in that case con? tended that the government violated the ethics rules by arranging for an informant to contact him while knowing he was represented by counsel. He moved to exclude the evi




dence obtained from that contact. The district court concluded that the prosecutor had violated the anti-contact rule, and sup? pressed the evidence.

The appellate court agreed that a violation had occurred but ruled that the district court abused its discretion in excluding the evidence obtained in violation of the rule. The court held that the rule applied to criminal investigations, including pre-indict

ment contacts, and that exclusion of evidence was an appropri? ate remedy for violation of the rule. But "the government should not have its case prejudiced by suppressing its evidence when the law was previously unsettled in this area." While the

appeals court recognized that there were instances when the use of an informant fell within DR7-104's "authorized by law"

exception, it declined to define the precise circumstances when such contacts would be ethically permissible.

In response to the Hammad decision, then Attorney Gen? eral Richard Thornburgh in 1989 issued a memorandum, "Communications with Persons Represented by Counsel"

(Thornburgh Memorandum), which stated that "the autho? rized by law exemption of DR7-104 applies to all communi? cations with represented individuals by DOJ attorneys or oth? ers acting at their direction." Thornburgh asserted that Hammad would "exacerbate the uncertainty felt by many government attorneys over what is appropriate conduct in this area." The memorandum stated that neither DR7-104 nor

Model Rule 4.2 prohibited contact with a represented individ? ual in the "course of authorized law enforcement activity."

The Thornburgh Memorandum stated that the DOJ would resist, relying on the Supremacy Clause of the U.S. Constitu? tion, any disciplinary action against federal prosecutors by state authorities for violation of ethics rules that the govern?

ment felt interfered with legitimate federal law enforcement

techniques. Thornburgh argued that a broad interpretation of Rule 4.2 could bar routine contacts with witnesses, use of informants for undercover operations, and other dealings with

persons not yet the subject of adversarial proceedings, thereby placing a "substantial burden on the law enforcement

process." He stated that in the near future, the DOJ intended to codify its policy as part of its Standards of Conduct at 28

C.F.R.Part45.

The Thornburgh Memorandum was sharply criticized by the

organized bar, which perceived it as an attempt by the govern? ment to exempt its prosecutors from the ethical rules followed

by all other attorneys. The bar believed that the Thornburgh Memorandum was an overreaction to Hammad and went way too far. The ABA House of Delegates passed a resolution in

February 1990 opposing the Thornburgh Memorandum:

BE IT RESOLVED, that it is the policy of the American Bar Association

a. that Department of Justice lawyers may not be given blanket exception from the requirements of Rule 4.2 of the ABA Model Rules of Professional Conduct or Disci?

plinary Rule 7-104(A)(1) of the predecessor ABA Model Code of Professional Responsibility as adopted in indi? vidual jurisdictions; and

b. to oppose any attempt by the Department of Justice

unilaterally to exempt its lawyers from the professional conduct rules that apply to all lawyers under the applic? able rules of the jurisdictions in which they practice.

Likewise, a Congressional House Subcommittee oversee?

ing government operations stated in its report in 1990 that it

disagreed with the Attorney General's attempts to exempt departmental attorneys from compliance with the states' ethi? cal rules and the rules of the federal courts before whom they practice. The subcornmittee urged Thornburgh to reconsider and withdraw his memorandum. Thornburgh, however, shrugged off these criticisms and stood by it.

The Thornburgh Memorandum was a watershed event for

arguments over the anti-contact rule. Before it, the arguments centered on the origin of the rule and whether its original pur? pose would be served by applying it to prosecutors. After its

publication, the debate focused on whether or not prosecutors should be bound by the same ethics rules as all other attorneys.

A California district court in 1991 was one of the first to thumb its nose at the Thornburgh Memorandum. In United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991), the court found that a prosecutor had violated the no-contact rule and, as a remedy, dismissed the indictment. Lopez had been arrested for distribution of cocaine and heroin. Lopez's attor?

ney told Lopez that it was the attorney's policy not to repre? sent clients who cooperated with the government by provid? ing evidence against others, and that if Lopez was interested in providing cooperation, the attorney would not represent Lopez in any plea agreement. The prosecutor wanted Lopez's cooperation, and Lopez wanted to enter into negotiations with the prosecutor. Lopez then signed a written waiver prepared by the prosecutor stating that Lopez would like to speak to the

government without his attorney. After several negotiating sessions, Lopez gave the government various names and iden? tities that the prosecution wanted.

During the negotiations, Lopez's attorney found out that the government had been meeting with his client in secret and withdrew as Lopez's attorney. Subsequently, Lopez moved to dismiss the indictment under the Sixth Amendment and for violation of the no-contact rule by the prosecutor.

The prosecutor had been relying on the Thornburgh Mem? orandum when he met with Lopez in secret, believing that the ethical rule did not apply to him. In ruling on the motion, the district court rejected the Thornburgh Memorandum and its

reasoning. The court found that the prosecution had violated the no-contact rule and determined that the appropriate rem?

edy was to dismiss the indictment in order to "protect the




integrity of the judicial process and deter government mis? conduct." The court noted that a dismissal was a disfavored

remedy but stated that any other remedy would not deter the

government from acting in a similar way in the future. The Ninth Circuit agreed with the district court's ruling that

the prosecutor's conduct violated the ethical rule against con? tact with represented parties but believed that the district court

went too far in dismissing the indictment. 4 F.3d 1455 (9th Cir. 1992). The appellate court recognized, however, that such an extreme remedy as dismissal could be justified under cir? cumstances where the government's conduct caused substan

In effect, by internal fiat, the DOJ attemped to relieve government attorneys from compliance.

tial prejudice to the defendant and when the prosecutor had been flagrant in his disregard of the limits of appropriate pro? fessional conduct. The fact that Lopez's lawyer in this instance may refuse to represent him at trial did not amount to substantial prejudice in the eyes of the appellate court. The

Ninth Circuit sent the case back to the district court to con? sider lesser remedial sanctions to punish the government attorneys, such as holding the prosecutor in contempt or refer? ral to the state bar for disciplinary proceedings. Later, federal district courts in New Mexico and Washington, D.C., also found the Thornburgh Memorandum to be invalid.

After the Clinton administration took over in 1993, Attorney General Janet Reno adopted the policy of the Thornburgh Memorandum and attempted to convert it into a federal regu? lation. The proposed regulation was promulgated at 28 C.F.R. Part 77. In effect, it exempted all DOJ attorneys and persons acting under their direction from compliance with Rule 4.2 and

analogous state and local federal court rules. It stated that com? munications with represented parties and persons should con? stitute communications that are "authorized by law" within the

meaning of the anti-contact rule. The Reno rule also was intended to preempt the application of state and local laws and rules to the extent they relate to contact by attorneys for the

government or those acting at their direction in both civil and criminal investigations and litigation. In effect, by internal fiat, the DOJ attempted to relieve government attorneys from com?

pliance with the ethical rules of the states in which they were licensed or in which they practiced.

During the notice and comment period required before any federal regulation could take effect, both the Conference of Chief Justices of the State Courts and the ABA submitted comments strongly opposing the proposed rule. The chief jus? tices found the proposed rule wholly unacceptable. They believed the exception of "authorized by law" in the present Rule 4.2, when read in the context of the official comment, is narrow and clear and does not admit of the breadth of the pro? posed regulation. They told Attorney General Reno that one

option for each state supreme court would be to delete the

"authorized by law" exception in its entirety. It was their posi? tion that government attorneys are required by federal law to

comply with state ethics rules. They concluded that the regu? lation was "contrary to law," flies in the face of principles of ethics engrained in state law, violates principles of federalism and separation of powers, and contravenes the federal law

requiring DOJ lawyers to be licensed to practice law by the states. They requested the Attorney General to reconsider the

proposed regulation. Attorney General Reno nevertheless proceeded to adopt the

rule. Upon learning of her rejection of their comments, the chief justices unanimously adopted a resolution stating that "without regard to the adoption of the [rule] by the Attorney General, the Conference respectfully urges each of its mem? bers to continue to enforce the ethical rules upon all members of bars of the various states and jurisdictions."

The Reno rule went into effect in 1994 but was nullified by the Eighth Circuit in the case of United States ex rel O'Keefe v. McDonnell Douglas Corp., 961 F. Supp. 1288 (E.D. Mo.

1997), aff'd 132 F.3d 1252 (8th Cir. 1998). The O 'Keefe case involved government conduct very simi?

lar to what was occurring in your whistleblower case involv?

ing National Aerospace. O'Keefe arose from a whistleblower suit alleging labor mischarging. The government engaged in contacts with both current and former employees of the com?

pany and served written interrogatories on those employees without prior notice or consent of either the general counsel's office of the company or its outside attorneys.

McDonnell Douglas, the defendant, pointed out that the federal district court had adopted the Missouri Supreme Court's ethical rules, including its no-contact rule, and gov? ernment attorneys were violating the rule. McDonnell Dou?

glas sought a protective order from the federal district court

(1) barring the government from contacting its current

employees ex parte about the subject matter of the litigation, (2) requiring the government to give the company 10 days' notice before contacting any former employee concerning the

subject matter of the action, (3) requiring the government to

provide the company with a list of all employees it had con? tacted ex parte since intervening in the action, (4) requiring the government to provide the company with all information obtained from its employees in this matter, and (5) barring the

government from using any documents or information obtained through ex parte contacts.

Federal Housekeeping The government argued in O'Keefe that Rule 4.2 permits ex

parte communications that are "authorized by law" and con? tended that the contacts at issue were authorized by the Reno rule reported at 28 C.F.R. Part 77. The government argued it was empowered to issue the Reno regulation by the so-called

Housekeeping Statute, 5 U.S.C. ? 301, which generally autho? rizes the head of an executive department to prescribe regula? tions for the operation of the department, the conduct of

employees, and the performance of department business. The federal district court disagreed with the government and

found that the Housekeeping Statute did not authorize the regu? lation. The court concluded that Congress intended federal

lawyers to be subject to regulation by the state bars of which

they are members and to comply with the appropriate ethical standards. The court held, "as the nation's litigator, the Depart?

ment of Justice and its attorneys must be held accountable to the




same court-adopted ethical rules that govern all lawyers." The government also challenged the trial court's authority

to issue a protective order based upon an alleged violation of the rules of professional conduct. The district court rejected that challenge, holding that it had inherent authority to impose sanctions for conduct that abuses the judicial process.

The O'Keefe whistleblower suit was filed under the federal False Claims Act, which prohibits, among other things, par? ties from knowingly presenting to the United States a false or fraudulent claim for payment or from knowingly making a false record or statement to get a false or fraudulent claim paid by the government. Liability under the False Claims Act may be imposed on corporations for the acts of their employees under a theory of respondeat superior. The trial court observed that McDonnell Douglas could be held liable civilly under the False Claims Act for the acts or omissions of its current

employees who were involved in any alleged mischarging, and, therefore, Rule 4.2 covered those company employees. Accordingly, the district court held that the government could not make ex parte contact with the company's current employ? ees who allegedly were involved in the mischarging.

The trial court, however, distinguished current employees who might have only factual information about what they observed from employees who actually might have been involved in the mischarging. The court explained that an

employee who witnessed an event for which the organization is sued does not become a party under Rule 4.2 and that the gov? ernment may contact such fact-witness employees ex parte.

The district court also distinguished current and former

employees. It agreed with the government that Rule 4.2 does not prohibit all ex parte contact with former employees. It ruled that only former employees who are in fact represented by the former employer's counsel or their own counsel are off limits. Thus, to the extent that the former employees desire to be represented by the employer's counsel or their own coun?

sel, the government was ordered not to contact them ex parte.

Because the statements of some of the company's former

employees could subject the company to liability, the court ordered that limits be placed on the government's access to these employees. The court directed that the government can contact the company's former employees ex parte but must (a) maintain a list of all former employees contacted and the dates of their contacts; and (b) maintain and preserve statements, notes, or answers to questionnaires obtained as a result of the contacts. The company was permitted to review the list and notes upon request, subject to work product limitations.

Further, the trial court ordered the government to provide the company with the list of all current employees it had con? tacted ex parte since intervening in the whistleblower action and with all information obtained from those employees. The court, however, refused to grant the company's request to pre? clude the government from using at trial the information

gained from the ex parte contacts, reasoning that any unfair

advantage the government might have obtained would be cured when the information was turned over to the company.

The government appealed the trial court's protective order

preventing its attorneys from engaging in ex parte communi? cations with current McDonnell Douglas employees and also

imposing restrictions upon the government's investigation of the company's former employees. The Eighth Circuit affirmed the holding of the district court and rejected the gov? ernment's argument that its ex parte contacts were "autho

rized by law." The Eighth Circuit, however, did not address or decide a number of issues surrounding ex parte contacts.

While the district court carved out from Rule 4.2 "fact wit? nesses," the Eighth Circuit failed to address that facet of the lower court ruling. Under the district court decision, the gov? ernment is apparently free to initiate ex parte contacts with current employees who were not involved with the alleged misconduct but were only witnesses. On a company's shop floor, this distinction is often blurred.

The Eighth Circuit also did not directly decide the propri? ety of the government's ex parte contacts with the corpora? tion's former employees, except that it did affirm the district court's conditions placed upon the investigations of former

employees. The appeals court concluded that, because the dis? trict court created safeguards to protect government attorneys' work product from discovery and the nonprivileged informa? tion would be subject to normal discovery in any case, it

An employee who witnessed an event does not become a party under Rule 4.2.

found no abuse of discretion by the trial court. On the heels of the O 'Keefe decision, Congress passed the

McDade Amendment, 28 U.S.C. ? 530B, in response to the per? sistent efforts by the DOJ to exempt its lawyers from state ethics rules. Congress basically codified the O Keefe ruling and

explicitly made federal prosecutors subject to state ethics rules

governing attorney conduct. The McDade Amendment pre? scribes that an "attorney for the Government shall be 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." The statute went into effect in

April 1999. Congress has rejected subsequent attempts by the DOJ to modify the statute.

The McDade Amendment made one thing clear: In deter?

mining how far government agents and lawyers can go in

interrogating employees of a corporation, both current and former, you must look to the respective state's rules of pro? fessional responsibility governing such contacts.

* * *

Armed with this information, you drive out to National

Aerospace and meet with Walter Miller. You explain the cur? rent law and precedent. Based upon O*Keefe and the McDade

Amendment, you recommend several actions for the com?

pany's consideration.

First, you suggest that a letter be sent promptly by your firm to the DOJ, notifying the government that its attorneys are bound by Rule 4.2, that your firm is representing the cor?

poration, and that the government may not make ex parte con? tacts with any managerial employees and current and former

employees who had worked in the departments where the

mischarging is alleged to have occurred.

(Please turn to page 71)




turned to "granteds." Finally, the "grant? eds" became a directed verdict for our client.

I think of that case, and so many oth? ers like it, when attorneys before me, at the first adverse call I make, abandon what might well be a productive road for their clients. Dorothy and her comrades risked their lives to bring the bellowing

Wizard of Oz the broomstick of the Wicked Witch of the West. At first, they got nothing for their efforts. But when

they stood their ground and demanded that the "man behind the curtain" do his

job, their wishes were granted. Don't rush to assume that we judges

are intractable. Maybe we would like

you to turn up a few more cards. Maybe we want to think a little harder about our hand. As a judge, I will always be

grateful to the lawyer who stays focused on getting me to make the right rulings. And, of course, what can't be fixed at trial will receive the thoughtful consid? eration of the ladies and gentlemen who

grade my homework at our district courts of appeal. But appellate review is the least satisfactory of solutions because it so greatly exacerbates the stress and expense to the litigants. I

hope for their sake that I will not often carve my reversible errors into the gran? ite of a final order.

The dream lawyer is the one who

helps me get it right the first time. Don't leave me stumbling through that law school nightmare, wondering?and without a record to help others figure out?which exam I was taking. 10

Bypassing

Lawyers (Continued from page 47)

Second, you recommend that the

company promptly file a motion for a

protective order in the whistleblower

litigation, similar to the one requested in the O'Keefe case. Among other

things, the protective order should: (1) bar the government from contacting the

company's current employees concern?

ing the subject matter of the whistle blower suit while it is pending; (2) require the government to give the com?

pany reasonable notice before contact

ing any former employees of the com?

pany concerning the subject of the

action, so that the company has an

opportunity to inquire whether the

employees have or want representation; (3) require the government to provide the company with a list of all present and former company employees that it has contacted ex parte; (4) require the

government to provide the company with copies of all notes containing information obtained from its current and former employees through its ex

parte contacts; and (5) bar the govern? ment from using any documents or information it has obtained through the ex parte contacts.

You realize that the court in O 'Keefe did not grant all of the relief you are rec?

ommending that the company ask for, but there is ample precedent for sanc? tions against the government for violat?

ing Rule 4.2. You explain that the shap? ing of remedies is within the discretion of the trial court, exercising its supervi? sory powers over parties and attorneys appearing before it. You believe the

company can make a strong case for the

requested relief, particularly because the government apparently disregarded the admonition of O 'Keefe and a con?

gressional statute.

Third, you advise Miller that the com?

pany should not wait for a protective order but immediately should do what it can to learn which employees have been

interrogated or interviewed by the gov? ernment. The company then should

approach those employees and debrief them about their communications.

Fourth, you tell Miller that his office should advise all managerial employees and all employees who work in the

departments where the mischarging is

alleged to have occurred to notify the

company's law department if they are contacted by government agents or

attorneys. And put out the word that the

company recommends employees not communicate with any government attorneys or agents without company lawyers being present.

Fifth, you suggest that the company offer to provide counsel to any former

employee contacted by the government if such employee would like counsel.

As you leave Walter Miller's office, you know you took a difficult problem of significant interest to your client and

responded with straightforward recom? mendations. It does not always work out that way. It is another glorious October day. 10

literary Trials

( Continued from page 72 )

back on my feet. The barber found me a

position as servant to a Knight of Malta who was going to Venice, but when I learned that my master didn't have

enough money to pay me, I became the servant of a Venetian merchant and

went with him to Constantinople. "One day I took it into my head to

enter a mosque. There was no one inside

except an old priest and a pretty young worshiper saying her prayers. She was

wearing a dress with a very low neck?

line, and between her breasts she had a beautiful bouquet of tulips, roses, anemones, buttercups, hyacinths and auriculas. She dropped her bouquet; I

picked it up and put it back with zealous

respect. I took so long to put it back that the priest became angry, and when he saw I was a Christian he called for help. I was taken before a judge who had me beaten a hundred times on the soles of

my feet and sent me to the galleys. I was chained in the very same galley and on the very same bench as the baron. In that

galley there were also four young men from Marseilles, five Neapolitan priests and two monks from Corfu. They told us that such things happened every day. The baron claimed that he'd suffered a

greater injustice than I had, whereas I maintained that it was much more per? missible to return a bouquet to a young woman's chest than to be naked with an officer of the sultan's palace. We were still arguing constantly, and receiving 20 lashes a day, when the chain of events of this universe led you to our galley and

you bought our freedom." "Tell me, my dear Pangloss," said

Candide, "when you were hanged, dis?

sected, cruelly beaten and forced to row in a galley, did you still think that every? thing was for the best in this world?"

"I still hold my original opinions," replied Pangloss, "because, after all, I'm a philosopher, and it wouldn't be

proper for me to recant, since Leibniz cannot be wrong, and since pre-estab? lished harmony is the most beautiful

thing in the world, along with the

plenum and subtle matter." 10




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