Reconciling Professional Ethics and Prosecutorial Power: The No Contact Rule Debate

Abstract

The questions whether and when federal prosecutors may ethically contact parties who have retained attorneys about the subject of the representation recently have been the focus of considerable controversy. In this note, Alafair S. R. Burke traces the history of attempts by the Department of Justice to formulate a uniform rule governing such direct communications and analyzes the regulations the Department finalized in August 1994. Ms. Burke argues that federal government attorneys should be subject to a single national standard rather than numerous state no-contact rules, and that certain limited exceptions to the rule are justified in the criminal context. She contends, however, that the new regulations are overbroad because they go beyond the legitimate needs of law enforcement by allowing most direct contacts prior to an arrest. She offers an alternative approach that would create narrow exceptions to the no-contact rule based on the special needs of federal prosecutors. Finally, Ms. Burke argues that prosecutors who violate the rule should be disciplined by state bars but that, contrary to the Second Circuit's holding in United States v. Hammad, courts need not suppress evidence gathered in violation of the rule.