Thursday, November 29, 2007

Rule 4.2 And Government Lawyers

The District of Columbia Bar's Rules of Professional Conduct Review Committee has posted a notice seeking comments on a series of questions involving present Comment [12] to Rule 4.2. The comment, which relates to the application of the no-contact rule to criminal prosecutors, states :

"This rule is not intended to enlarge or restrict the law enforcement activities of the United States or the District of Columbia which are authorized and permissible under the Constitution and law of the United States or the District of Columbia. The 'authorized by law' proviso to Rule 4.2 is intended to permit government conduct that is valid under this law. The proviso is not intended to freeze any particular substantive law, but is meant to accomodate substantive law as it may develop over time."

One question posed is whether the above comment should be replaced by language similar to the pertinent ABA comment, which provides:

"[5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule." (Mike Frisch)

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