Section 501 of the Uniting and Strengthening America Act (""USA Act"") repeals the McDade-Murtha Law. The McDade-Murtha Law, codified at 28 U.S.C. § 530A, clarifies that federal prosecutors, like all other lawyers, are subject to state ethical rules governing attorney conduct. Legislation to modify or repeal the law should be considered apart from the anti-terrorism bill.
McDade-Murtha Law Restores the Traditional Role of the States
As the Supreme Court has observed, ""Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions."" Leis v. Flynt, 439 U.S. 438, 442 (1979). State disciplinary rules have traditionally applied to all lawyers - including state and federal prosecutors.
Thornburgh Memorandum
In 1989, then-Attorney General Richard Thornburgh issued a memorandum (""Thornburgh Memorandum"") which purported to unilaterally exempt DOJ lawyers from certain state rules of ethics governing all other lawyers. Specifically, the Department declared itself exempt from the fundamental ethical prohibition against interrogating represented persons outside the presence of the person's lawyer. This ethical prohibition is designed in part to ensure that lawyers do not use their legal knowledge to take advantage of non-lawyers. In our view - a view shared by many members of the House - the Thornburgh Memorandum was ill conceived. Fundamental notions of due process dictate that it is essential to protect counseled persons from improper contacts by those who wield the extensive power of the government (federal prosecutors, for example), and to protect the right of a person to have the assistance of counsel.
Overwhelming Support for the McDade-Murtha Law
This law was the subject of hearings before the House Subcommittee on Courts and Intellectual Property (Sep. 12, 1996) and received overwhelming bipartisan support in the House of Representatives. 345 members voted in favor of the amendment.
Republican supporters included Speaker Dennis Hastert (R-IL), the former and current Chairmen of the House Judiciary Committee, Rep. Henry Hyde (R-IL) and Rep. James Sensenbrenner (R-WI), Crime Subcommittee Chairman Lamar Smith (R-TX), and Majority Whip Tom DeLay (R-TX). Democratic supporters included Minority Leader Richard Gephardt (D-MO) and then Rep. Charles Schumer (D-NY) (now Chairman of the Senate Subcommittee on Administrative Oversight and the Courts).
No Reason for Change
Larry Thompson, in an article written prior to his confirmation as the Deputy Attorney General, stated that ""even law enforcement concerns do not justify the creation of less demanding ethics rules for DOJ lawyers."" Based on his years as a United States Attorney during the Reagan Administration, he explained that, as a practical matter, no ethical rule ""presents any serious problems for DOJ lawyers."" Larry D. Thompson, The McDade Law is Good for the Profession, Federal Lawyer (Jan. 2001).
Section 501 should be deleted from the USA Act.
Last Updated - October 8, 2001