Reading Room Document

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. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/24451/download.

April 18, 1980