[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: 28CFR77.4]



[Page 339-340]

 

                    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

    (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



[[Page 340]]



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.