2000 
[DOCID: f:s1437is.txt]






107th CONGRESS
  1st Session
                                S. 1437

    To clarify the applicable standards of professional conduct for 
         attorneys for the Government, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 19, 2001

   Mr. Leahy (for himself, Mr. Hatch, and Mr. Wyden) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To clarify the applicable standards of professional conduct for 
         attorneys for the Government, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Professional Standards for 
Government Attorneys Act of 2001''.

SEC. 2. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS.

    (a) Section 530B of title 28, United States Code, is amended to 
read as follows:

``SEC. 530B. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS.

    ``(a) Definitions.--In this section:
            ``(1) Government attorney.--The term `Government 
        attorney'--
                    ``(A) means the Attorney General; the Deputy 
                Attorney General; the Solicitor General; the Associate 
                Attorney General; the head of, and any attorney 
                employed in, any division, office, board, bureau, 
                component, or agency of the Department of Justice; any 
                United States Attorney; any Assistant United States 
                Attorney; any Special Assistant to the Attorney General 
                or Special Attorney appointed under section 515; any 
                Special Assistant United States Attorney appointed 
                under section 543 who is authorized to conduct criminal 
                or civil law enforcement investigations or proceedings 
                on behalf of the United States; any other attorney 
                employed by the Department of Justice who is authorized 
                to conduct criminal or civil law enforcement 
                proceedings on behalf of the United States; any 
                independent counsel, or employee of such counsel, 
                appointed under chapter 40; and any outside special 
                counsel, or employee of such counsel, as may be duly 
                appointed by the Attorney General; and
                    ``(B) does not include any attorney employed as an 
                investigator or other law enforcement agent by the 
                Department of Justice who is not authorized to 
                represent the United States in criminal or civil law 
                enforcement litigation or to supervise such 
                proceedings.
            ``(2) State.--The term `State' includes a Territory and the 
        District of Columbia.
    ``(b) Choice of Law.--Subject to any uniform national rule 
prescribed by the Supreme Court under chapter 131, the standards of 
professional responsibility that apply to a Government attorney with 
respect to the attorney's work for the Government shall be--
            ``(1) for conduct in connection with a proceeding in or 
        before a court, the standards of professional responsibility 
        established by the rules and decisions of that court;
            ``(2) for conduct reasonably intended to lead to a 
        proceeding in or before a court, the standards of professional 
        responsibility established by the rules and decisions of the 
        court in or before which the proceeding is intended to be 
        brought; and
            ``(3) for all other conduct, the standards of professional 
        responsibility established by the rules and decisions of the 
        Federal district court for the judicial district in which the 
        attorney principally performs his or her official duties.
    ``(c) Licensure.--A Government attorney (except foreign counsel 
employed in special cases)--
            ``(1) shall be duly licensed and authorized to practice as 
        an attorney under the laws of a State; and
            ``(2) shall not be required to be a member of the bar of 
        any particular State.
    ``(d) Covert Activities.--Notwithstanding any provision of State 
law, including disciplinary rules, statutes, regulations, 
constitutional provisions, or case law, a Government attorney may, for 
the purpose of enforcing Federal law, provide legal advice, 
authorization, concurrence, direction, or supervision on conducting 
covert activities, and participate in such activities, even though such 
activities may require the use of deceit or misrepresentation.
    ``(e) Admissibility of Evidence.--No violation of any disciplinary, 
ethical, or professional conduct rule shall be construed to permit the 
exclusion of otherwise admissible evidence in any Federal criminal 
proceeding.
    ``(f) Rulemaking Authority.--The Attorney General shall make and 
amend rules of the Department of Justice to ensure compliance with this 
section.''.
    (b) Technical and Conforming Amendment.--The analysis for chapter 
31 of title 28, United States Code, is amended, in the item relating to 
section 530B, by striking ``Ethical standards for attorneys for the 
Government'' and inserting ``Professional standards for Government 
attorneys''.
    (c) Reports.--
            (1) Uniform rule.--In order to encourage the Supreme Court 
        to prescribe, under chapter 131 of title 28, United States 
        Code, a uniform national rule for Government attorneys with 
        respect to communications with represented persons and parties, 
        not later than 1 year after the date of enactment of this Act, 
        the Judicial Conference of the United States shall submit to 
        the Chief Justice of the United States a report, which shall 
        include recommendations with respect to amending the Federal 
        Rules of Practice and Procedure to provide for such a uniform 
        national rule.
            (2) Actual or potential conflicts.--Not later than 2 years 
        after the date of enactment of this Act, the Judicial 
        Conference of the United States shall submit to the Chairmen 
        and Ranking Members of the Committees on the Judiciary of the 
        House of Representatives and the Senate a report, which shall 
        include--
                    (A) a review of any areas of actual or potential 
                conflict between specific Federal duties related to the 
                investigation and prosecution of violations of Federal 
                law and the regulation of Government attorneys (as that 
                term is defined in section 530B of title 28, United 
                States Code, as amended by this Act) by existing 
                standards of professional responsibility; and
                    (B) recommendations with respect to amending the 
                Federal Rules of Practice and Procedure to provide for 
                additional rules governing attorney conduct to address 
                any areas of actual or potential conflict identified 
                pursuant to the review under subparagraph (A).
            (3) Report considerations.--In carrying out paragraphs (1) 
        and (2), the Judicial Conference of the United States shall 
        take into consideration--
                    (A) the needs and circumstances of multiforum and 
                multijurisdictional litigation;
                    (B) the special needs and interests of the United 
                States in investigating and prosecuting violations of 
                Federal criminal and civil law; and
                    (C) practices that are approved under Federal 
                statutory or case law or that are otherwise consistent 
     
6d
           with traditional Federal law enforcement techniques.
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