[Code of Federal Regulations]

[Title 28, Volume 2]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 28CFR77.2]



[Page 338-339]

 

                    TITLE 28--JUDICIAL ADMINISTRATION

 

              CHAPTER I--DEPARTMENT OF JUSTICE (CONTINUED)

 

PART 77_ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT--Table of 

Contents

 

Sec. 77.2  Definitions.



    As used in this part, the following terms shall have the following 

meanings, unless the context indicates otherwise:

    (a) The phrase attorney for the government means the Attorney 

General; the Deputy Attorney General; the Solicitor General; the 

Assistant Attorneys General for, and any attorney employed in, the 

Antitrust Division, Civil Division, Civil Rights Division, Criminal 

Division, Environment and Natural Resources Division, and Tax Division; 

the Chief Counsel for the DEA and any attorney employed in that office; 

the Chief Counsel for ATF and any attorney employed in that office; the 

General Counsel of the FBI and any attorney employed in that office or 

in the (Office of General Counsel) of the FBI; any attorney employed in, 

or head of, any other legal office in a Department of Justice agency; 

any United States Attorney; any Assistant United States Attorney; any 

Special Assistant to the Attorney General or Special Attorney duly 

appointed pursuant to 28 U.S.C. 515; any Special Assistant United States 

Attorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to 

conduct criminal or civil law enforcement investigations or proceedings 

on behalf of the United States; and 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. The phrase 

attorney for the government also includes any independent counsel, or 

employee of such counsel, appointed under chapter 40 of title 28, United 

States Code. The phrase attorney for the government does not include 

attorneys employed as investigators or other law enforcement agents by 

the Department of Justice who are not authorized to represent the United 

States in criminal or civil law enforcement litigation or to supervise 

such proceedings.

    (b) The term case means any proceeding over which a state or federal 

court has jurisdiction, including criminal prosecutions and civil 

actions. This term also includes grand jury investigations and related 

proceedings (such as motions to quash grand jury subpoenas and motions 

to compel testimony), applications for search warrants, and applications 

for electronic surveillance.

    (c) The phrase civil law enforcement investigation means an 

investigation of possible civil violations of, or claims under, federal 

law that may form the basis for a civil law enforcement proceeding.

    (d) The phrase civil law enforcement proceeding means a civil action 

or proceeding before any court or other tribunal brought by the 

Department of Justice under the authority of the United States to 

enforce federal laws or regulations, and includes proceedings related to 

the enforcement of an administrative subpoena or summons or civil 

investigative demand.

    (e) The terms conduct and activity means any act performed by a 

Department attorney that implicates a rule governing attorneys, as that 

term is defined in paragraph (h) of this section.

    (f) The phrase Department attorney[s] is synonymous with the phrase 

``attorney[s] for the government'' as defined in this section.

    (g) The term person means any individual or organization.

    (h) The phrase state laws and rules and local federal court rules 

governing attorneys means rules enacted or adopted by any State or 

Territory of the United States or the District of Columbia or by any 

federal court, that prescribe ethical conduct for attorneys and that 

would subject an attorney, whether or not a Department attorney, to 

professional discipline, such as a code of professional responsibility. 

The phrase does not include:

    (1) Any statute, rule, or regulation which does not govern ethical 

conduct, such as rules of procedure, evidence, or substantive law, 

whether or not such rule is included in a code of professional 

responsibility for attorneys;

    (2) Any statute, rule, or regulation that purports to govern the 

conduct of any class of persons other than attorneys, such as rules that 

govern the conduct of all litigants and judges, as well as attorneys; or

    (3) A statute, rule, or regulation requiring licensure or membership 

in a particular state bar.

    (i) The phrase state of licensure means the District of Columbia or 

any State



[[Page 339]]



or Territory where a Department attorney is duly licensed and authorized 

to practice as an attorney. This term shall be construed in the same 

manner as it has been construed pursuant to the provisions of Pub. L. 

96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the Departments of 

Commerce, Justice and State, the Judiciary, and Related Agency 

Appropriations Act, 1999, Pub. L. 105-277.

    (j)(1) The phrase where such attorney engages in that attorney's 

duties identifies which rules of ethical conduct a Department attorney 

should comply with, and means, with respect to particular conduct:

    (i) If there is a case pending, the rules of ethical conduct adopted 

by the local federal court or state court before which the case is 

pending; or

    (ii) If there is no case pending, the rules of ethical conduct that 

would be applied by the attorney's state of licensure.

    (2) A Department attorney does not ``engage[] in that attorney's 

duties'' in any states in which the attorney's conduct is not 

substantial and continuous, such as a jurisdiction in which an attorney 

takes a deposition (related to a case pending in another court) or 

directs a contact to be made by an investigative agent, or responds to 

an inquiry by an investigative agent. Nor does the phrase include any 

jurisdiction that would not ordinarily apply its rules of ethical 

conduct to particular conduct or activity by the attorney.

    (k) The phrase to the same extent and in the same manner as other 

attorneys means that Department attorneys shall only be subject to laws 

and rules of ethical conduct governing attorneys in the same manner as 

such rules apply to non-Department attorneys. The phrase does not, 

however, purport to eliminate or otherwise alter state or federal laws 

and rules and federal court rules that expressly exclude some or all 

government attorneys from particular limitations or prohibitions.



[Order No. 2216-99, 64 FR 19275, Apr. 20, 1999, as amended by Order No. 

2650-2003, 68 FR 4929, Jan. 31, 2003