Ethical Restraints of the ABA Code of Professional Responsibility on Federal Criminal Investigations

American Bar Association Disciplinary Rule 7-104 (DR 7-104), which prohibits an attorney from contacting an opposing party without prior consent from the party’s attorney, does not apply to federal criminal investigations or to interrogations by FBI agents; accordingly, the Department of Justice is free to analyze the issues presented by DR 7-104 as policy questions.

The only restraints on federal law enforcement activities are those established by the Constitution and existing statutes; moreover, authorized federal investigative practices are exempt from DR 7-104 by its own terms.

Courts have taken the position generally that DR 7-104 applies to all situations in which a defendant has a Sixth Amendment right to counsel, though they have been reluctant to fetter legitimate and traditional activities of law enforcement officials in the investigative stages of a case; moreover, courts have generally held that waiver of one’s constitutional right to counsel does not negate the ethical obligation of a government attorney to seek the consent of an opposing party’s attorney before initiating communications with the party.

Federal courts have no power to exclude evidence, dismiss an indictment, or reverse a conviction solely on the ground that DR 7-104 was violated.

State bar associations may not, consistent with the Supremacy Clause, impose sanctions on a government attorney who has acted pursuant to his federal law enforcement responsibilities.