[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR77.4]

[Page 332-333]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
PART 77--ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT--Table of Contents
 
Sec. 77.4   Guidance.

    (a) Rules of the court before which a case is pending. A government 
attorney shall, in all cases, comply with the rules of ethical conduct 
of the court before which a particular case is pending.
    (b) Inconsistent rules where there is a pending case. (1) If the 
rule of the attorney's state of licensure would prohibit an action that 
is permissible under the rules of the court before which a case is 
pending, the attorney should consider:
    (i) Whether the attorney's state of licensure would apply the rule 
of the court before which the case is pending, rather than the rule of 
the state of licensure;
    (ii) Whether the local federal court rule preempts contrary state 
rules; and

[[Page 333]]

    (iii) Whether application of traditional choice-of-law principles 
directs the attorney to comply with a particular rule.
    (2) In the process of considering the factors described in paragraph 
(b)(1) of this section, the attorney is encouraged to consult with a 
supervisor or Professional Responsibility Officer to determine the best 
course of conduct.
    (c) Choice of rules where there is no pending case. (1) Where no 
case is pending, the attorney should generally comply with the ethical 
rules of the attorney's state of licensure, unless application of 
traditional choice-of-law principles directs the attorney to comply with 
the ethical rule of another jurisdiction or court, such as the ethical 
rule adopted by the court in which the case is likely to be brought.
    (2) In the process of considering the factors described in paragraph 
(c)(1) of this section, the attorney is encouraged to consult with a 
supervisor or Professional Responsibility Officer to determine the best 
course of conduct.
    (d) Rules that impose an irreconcilable conflict. If, after 
consideration of traditional choice-of-law principles, the attorney 
concludes that multiple rules may apply to particular conduct and that 
such rules impose irreconcilable obligations on the attorney, the 
attorney should consult with a supervisor or Professional Responsibility 
Officer to determine the best course of conduct.
    (e) Supervisory attorneys. Each attorney, including supervisory 
attorneys, must assess his or her ethical obligations with respect to 
particular conduct. Department attorneys shall not direct any attorney 
to engage in conduct that violates section 530B. A supervisor or other 
Department attorney who, in good faith, gives advice or guidance to 
another Department attorney about the other attorney's ethical 
obligations should not be deemed to violate these rules.
    (f) Investigative Agents. A Department attorney shall not direct an 
investigative agent acting under the attorney's supervision to engage in 
conduct under circumstances that would violate the attorney's 
obligations under section 530B. A Department attorney who in good faith 
provides legal advice or guidance upon request to an investigative agent 
should not be deemed to violate these rules.