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The so-called McDade law, which requires federal prosecutors to abide by state ethics rules, has been unpopular with the Department of Justice and some U.S. senators since its enactment in 1998. Not surprisingly, then, the recent anti-terrorism legislative effort in the Senate allowed both groups to do what they had been unable to do in the normal legislative process — insert language repealing the law in the omnibus terrorism package and move it through the Senate. Also not surprisingly, the House, which had overwhelmingly supported the McDade law in 1998, stripped the language from the Senate terrorism legislation when it came through that chamber’s door. Now supporters and opponents wonder if the repeal provision will reappear in some form as the two legislative bodies strategize over a final terrorism package. “I would imagine the Senate will use this as a bargaining chip,” said Kyle O’Dowd, legislative affairs director for the National Association of Criminal Defense Lawyers (NACDL). “I don’t know what the result will be. It really depends on the endgame: whether the House-passed terrorism bill goes to the Senate or whether they conference on both versions,” O’Dowd said. “If they conference, there is some danger the provision will return.” The controversy over applying state ethics rules to federal prosecutors began more than a decade ago when a federal appellate court held that a local disciplinary rule barred federal prosecutors from interrogating people outside the presence of their lawyers. A prosecutor violating the rule, the court said, could result in suppression of evidence. The Justice Department responded with what became known as the Thornburgh Memorandum, which exempted federal prosecutors from the “no contact” rule. Federal courts balked at the department’s position and, in 1994, the Reno regulations took effect, permitting prosecutors to contact represented persons in certain circumstances. Those regulations were found invalid by at least one court. In 1998, U.S. Rep. Joseph McDade introduced a bill to end the controversy; it essentially said federal prosecutors, like all lawyers, are subject to state ethical rules on attorney conduct. The bill became part of an appropriations measure and passed overwhelmingly in the House. “DOJ secured a delay in the effective date right off the bat and has fought tooth-and-nail to repeal it since then, along with the National Association of Assistant U.S. Attorneys,” said O’Dowd. “Sen. [Orrin] Hatch had a bill that would pretty much outright repeal it. Sen. [Patrick] Leahy has introduced or supported various anti-McDade bills for the last couple of years.” The week after the Sept. 11 attacks, Leahy introduced the bill that was to become part of the Senate terrorism legislation. In floor comments, he said the McDade law “has delayed important criminal investigations, prevented the use of effective and traditionally accepted investigative techniques, and served as the basis of litigation to interfere with legitimate federal prosecutions.” And he added, “We cannot afford to wait until the McDade law impeded the investigation into last Tuesday’s attacks before taking action.” When it became clear that the bill was going into the terrorism legislation, a coalition, including the NACDL, the American Bar Association, the American Civil Liberties Union and the American Corporate Counsel Association, formed to fight it. “This had nothing to do with terrorism investigations,” O’Dowd said. “They really seek to evade the almost-uniform rule against contacting represented persons.” The effect of the McDade law has been “widely misunderstood,” said George Kuhlman, ethics counsel to the ABA. The law did not change the rules governing the conduct of prosecutors, he explained, adding, “It was an attempt to definitively get into the record as a matter of legislation that the executive branch doesn’t have the authority to preempt the traditional method of disciplining lawyers.” And, “despite impassioned arguments that McDade-Murtha was doing great harm to the criminal law enforcement effort,” he said, “that didn’t prove to be the case. The overwhelming majority of state courts have, simply put, not chosen to discipline or even investigate federal prosecutors, for example, in their supervision of covert investigation.” Even where there has been a conflict, such as a recent case in Oregon, Kuhlman noted, the state legislature modified the ethics rules to deal with the problem facing the federal prosecutors. It’s not “enjoyable” opposing Leahy, said the NACDL’s O’Dowd. “He’s very fair and very concerned about justice. But we obviously disagree on this particular issue.”

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