Criminal Resource Manual 86 January 2000 (prosecution of attorneys)
CRM 86 Criminal Division Guidance re USAM 9-2.032
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. Sec. 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. Sec. 2635.502; 28 C.F.R.
- Sec. 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.
CRM 86 Criminal Division Guidance re USAM 9-2.032