December 10, 1999
MEMORANDUM
TO: Heads of Department Components
All United States Attorneys
FROM: James K. Robinson
Assistant Attorney General
SUBJECT: New Policy Regarding Notification Prior to Certain
Prosecutions of Attorneys and Guidance Regarding Participation of
Prosecutors in Certain Prosecutions of Attorneys
This is to inform you that new sections
are being added to the
various titles of the United States Attorneys' Manual (USAM) to require
notification of the Assistant Attorney General, Criminal Division, in
advance of certain prosecutions of attorneys.
In a related matter, after review by the Attorney General's Advisory
Committee, we have developed guidance for prosecutors, whether Assistant
United States Attorneys (AUSAs) or Department Attorneys, regarding the
factors to be considered in determining when his/her participation would be
inappropriate in certain prosecutions of attorneys with whom the prosecutor
has had dealings during the attorney's representation of a client. The
guidance calls for review by the United States Attorney or Department
Component Head of whether the same prosecutor(s) should handle cases against
such defense attorneys.
Notification Policy
The new notification policy requires that the Assistant Attorney
General, Criminal Division, be notified whenever there is an intent to file
a complaint, information, or indictment against an attorney in either of the
following two circumstances:
1. When the charges are based, in whole or in part, on evidence
that the attorney served as counsel for an ongoing
criminal enterprise or organization; or
2. When--
a. the charges are based, in whole or in part, on actions
or omissions by the attorney during the representation
of a current or former client; and
b. the attorney's current or former client is, or is
likely to be, a witness against the attorney;
and
c. the client will, or is likely to, testify against the
attorney pursuant to a nonprosecution, cooperation, or
similar agreement with the government.
Except in emergency situations, the notice should be provided sufficiently
in advance of the filing to provide the Assistant Attorney General, Criminal
Division, with a reasonable amount of time to consult prior to the filing.
Also, it would be preferable for such notice to be given when the existence
of such an investigation as noted above is about to be, or has been, made
public.
Such notice should be made through the Witness Immunity Unit of the
Office
of Enforcement Operations, which also handles attorney search warrant
notification to the Criminal Division and attorney subpoena approvals. That
office can be reached at(202) 514-5541, or by FAX at (202) 514-1468.
This new notification requirement does not apply to indictments which
are subject to pre-indictment review by a component of the Department of
Justice pursuant to other provisions of the USAM. However, such components
are requested to consider the concerns addressed by this new policy in
pre-indictment reviews. Therefore, I request that this memorandum be
distributed to the heads of all components within each Division with
pre-indictment review authority.
Guidance for Prosecutors
The following guidance is provided for Assistant United States Attorneys
(AUSAs) and Department Attorneys regarding certain prosecutions of
attorneys:
A. Pursuant to 5 C.F.R. § 2635.501, a government employee,
including an AUSA or Department Attorney, should "take[]
appropriate steps to avoid an appearance of loss of
impartiality in the performance of his[/her] official
duties." Unless he/she receives prior authorization from
an appropriate agency official, an attorney "should not
participate in a particular matter . . . if he[/she]
determines that a reasonable person with knowledge of the
relevant facts would question his impartiality in the
matter." Id.; see also 5 C.F.R. § 2635.502; 28 C.F.R.
§ 45.2.
B. In light of the foregoing requirements--
1. An AUSA or Department Attorney must consider whether
it is appropriate for him/her to participate in
a criminal investigation or prosecution of a
private attorney in circumstances in which, prior
to the initiation of the criminal investigation
or prosecution, the AUSA or Department Attorney
was involved in a matter in which the private
attorney represented a current or former target
or subject of the investigation or litigation,
regardless of whether that investigation or
litigation was civil or criminal in nature and
regardless of whether that investigation or
litigation is ongoing.
2. In making this determination, the AUSA or Department
Attorney shall weigh, where applicable, the
following factors, among others:
(i) the level of his/her involvement in the
investigation or litigation involving
the attorney's current or former
client;
(ii) the level of his/her involvement in the ongoing
criminal investigation or prosecution
of the attorney;
(iii) the amount of time, if any, that has passed
between the investigation or litigation involving
the attorney's current or former client and
ongoing criminal investigation or prosecution
of the attorney;
(iv) the level of the attorney's involvement in the
representation of the current or former client;
and
(v) the potential that there will be a public
perception of favoritism or animus toward the
attorney.
3. An AUSA's or Department Attorney's decision regarding
his/her participation in such a criminal investigation
or prosecution must be reviewed personally by the
United States Attorney or Department Component Head,
respectively. Regardless of the outcome of that
review, the United States Attorney or Department
Component Head also shall consider whether it is
appropriate to recuse the entire office. See
USAM 3-2.170.
C. In all circumstances, AUSAs and United States Attorneys
are encouraged to consult with the Legal Counsel,
Executive Office for United States Attorneys, and
Department Attorneys and their component heads should
consult with appropriate Departmental counsel.
| January 2000
| Criminal Resource Manual 86
|