United States v. Lopez

OPINION

INTRODUCTION

The past decade has witnessed a rapidly growing concern regarding the ethical conduct of lawyers. More and more citizens are lodging complaints alleging misconduct by attorneys, and state bar associations are becoming increasingly active in investigating and addressing such complaints. 1 Even with these efforts, the public remains critical of existing mechanisms for lawyer discipline and has demanded more accountability from the legal profession. 2

Rather than evading the new focus on lawyer misconduct, government attorneys and prosecutors often have found themselves at the center of it. 3 The most recent report of the Attorney General’s Office of Professional Responsibility indicates that there has been a notable increase in the number of complaints, both substantiated and unsubstantiated, of ethical violations by federal prosecutors. 4 This growth undoubtedly arises from both the swift increase in the number of attorneys employed by the Department of Justice 5 and *1438 evolving efforts by the Department to limit the rights of suspects and defendants in certain areas. 6 Many commentators have voiced concern over the increasing frequency of incidents of prosecutorial misconduct and the ineffectiveness or non-existence of sanctions designed to prevent such misdeeds. 7

In the midst of these developments, the Attorney General has issued a policy directive which purports to exempt Department of Justice attorneys from one of the most widely-accepted and time-honored ethical rules governing the conduct of attorneys involved in litigation. The implementation of the Attorney General’s policy in this case has resulted in the motion to dismiss now before the court.

BACKGROUND

Defendant Jose Orlando Lopez and co-defendants Antonio Hernandez Escobedo and Alfredo Tarango Olivas were indicted on December 15, 1989. Lopez, Escobedo and Olivas were charged with violations of 21 U.S.C. § 841(a)(1) (distribution of cocaine and heroin); 21 U.S.C. § 846 (conspiracy to distribute cocaine and heroin); and 18 U.S.C. § 2 (aiding and abetting). The case was assigned to Judge Fern M. Smith, who denied bail to defendants Lopez and Esco-bedo on January 8, 1990. 8

Shortly after the arrest of the three men, Escobedo’s brother contacted attorney James Twitty concerning possible legal representation. Reporter’s Transcript (“RT”) 3/4/91, at 5. Twitty made several appearances on behalf of the three co-defendants at the outset of the case, primarily at bail and detention proceedings, while he endeavored to locate co-counsel. RT, 2/4/91 at 19; RT, 3/4/91, at 48. There is conflicting evidence in the record as to whether it was initially intended that Twitty would represent Escobedo or Lopez. 9 In any event, Mr. Lopez eventually contacted attorney Barry Tarlow, RT, 2/4/91, at 19-20, who by January 11, 1990 was counsel of record for Lopez. 10 Lopez alleges that Twitty was “not pleased” when he learned that Tarlow would represent Lopez, RT, 2/4/91, at 20, while Twitty contends that he enjoyed a good relationship with Tarlow. RT, 3/4/91, at 9-10.

The record indicates that the posture of the defendants’ case and the dynamics of the litigation changed after Tarlow was retained to represent Lopez. At the outset of the case, Twitty discussed possible disposition of the charges against Lopez and Escobedo with Assistant United States Attorney (“AUSA”) John Lyons, who was assigned to the case. RT, 3/18/91, at 88. Lyons made it clear to Twitty that he would consider a disposition of the case only if both Escobedo and Lopez agreed to enter into a plea agreement. RT, 3/4/91, at 57-58.

Upon entering the case, attorney Tarlow took the position that Lopez had a viable defense and discussions with the government concerning disposition of the charges against Lopez and Escobedo ceased. RT, 3/18/91 at 88-89. Tarlow avers that Lopez retained his services to “vigorously defend and try the case” and that Lopez had no interest in cooperating with the government. Tarlow Decl. at 1110. Tarlow informed Lopez that it was his general policy *1439 not to represent clients in negotiations with the government concerning cooperation and that if Lopez were interested in cooperation, Tarlow would not represent Lopez in any plea negotiations. Tarlow Decl. at no.

It also appears that the litigation became more combative after Tarlow arrived on the scene. RT, 3/4/91, at 14-15. Twitty alleges that Lyons did not like Tarlow, RT, 3/4/91, at 14, that the AUSA was “aggravated” by Tarlow’s litigation style, RT, 3/4/91, at 53-55, and that there was “no question” that Lyons believed “that the case could be more easily resolved without Tarlow’s participation.” RT, 3/4/91, at 44. The principal source of conflict between Lyons and Tarlow in the early stages of the case apparently was a dispute concerning what discovery was to be made available to Tarlow. Second Decl. of Lyons at ¶ 33. In spite of this ongoing dispute, Lyons characterizes his relationship with Tarlow as generally “amicable.” Second Decl. of Lyons at ¶ 38.

Responsibility for preparation of the defense case was divided among Tarlow, Twitty and Harold Rosenthal, who was retained to represent Olivas. Tarlow authorized both Twitty and Rosenthal to speak with Lopez when necessary in preparation of their cases. Tarlow Decl. at ¶ 18; Twitty Decl. at 1113. Twitty appears to have been given responsibility for a “joint investigation” in the Lopez and Escobedo cases; as a result he generally spoke with both Lopez and Escobedo during his visits to FCI Pleasanton, where the two men were incarcerated awaiting trial. RT, 3/4/91, at 56-57.

Sometime in March or April 1990, Esco-bedo contacted Twitty by telephone and expressed interest in reopening discussions with the government concerning the possibility of plea agreements. RT, 3/4/91, at 16-17, 65. Lopez and Twitty differ substantially on what transpired following this call. 11

Lopez contends that Escobedo contacted Twitty to determine if a plea offer made by the government at the outset of the case was still open. RT, 2/4/91, at 48. According to Lopez, Twitty communicated with the government and then apprised Escobe-do and Lopez that the government would consider probation in return for cooperation, RT, 2/4/91, at 49-50, but a plea agreement would be possible only if both men were included. RT, 2/4/91, at 50.

Lopez maintains that he was encouraged by Escobedo to participate in new negotiations with the government. At the time, Lopez apparently was distraught over the safety of his children, whom he believed were being abused and in danger because of certain activities of their mother. RT, 2/4/91, at 22-23, 53-54. Lopez agreed to meet with the government to discuss a possible plea agreement in order to obtain early release and to be closer to his children. Id.; RT, 3/4/91, at 17.

Lopez asserts that he discussed with Twitty the possibility of meeting with the government and that Twitty told him it was not necessary for Tarlow, Lopez’s attorney, to be present at any such meetings. RT, 2/4/91, at 21. Twitty also allegedly represented to Lopez that Lyons believed it would be easier to reach a plea agreement if Tarlow were not present. RT, 2/4/91, at 56-58. Lopez contends that he agreed to go ahead with the meetings without Tarlow because he believed it would be easier to work out a favorable disposition of the case in Tarlow’s absence and because he was concerned about the expenses involved were Tarlow to participate. RT, 2/4/91, at 18-21.

Lopez also maintains that he was told by Twitty and Lyons that meeting with the government without Tarlow’s consent or knowledge would not jeopardize his relationship with Tarlow. RT, 2/4/91, at 23-24. In addition, Lopez insists that he did not wish to have another lawyer represent him at the meetings with the government because he feared that as a result he would *1440 lose Tarlow as his lawyer. RT, 2/4/91, at 56.

Twitty concedes that, after receiving an initial telephone call from Escobedo regarding a possible plea agreement, he travelled from Los Angeles to Pleasanton to discuss the matter with Escobedo and Lopez without informing Tarlow of the upcoming meeting. RT, 3/4/91, at 17. Twitty further acknowledges that, prior to contacting the government on behalf of Lopez and Escobedo, he spoke with Lopez between five and nine times regarding the possibility of meeting with the government and that he made a second trip to Pleasanton to discuss plea negotiations with the two men; all of these communications were concealed from Lopez’s attorney, Tarlow. RT, 3/4/91, at 22-23.

Twitty advised Lopez and Escobedo that if they wanted to be released so as to be closer to their children their only option was to cooperate with the government. RT, 3/4/91, at 18. However, Twitty denies encouraging Lopez or Escobedo to enter into negotiations with the government. Indeed, Twitty contends that he was not interested in negotiating a plea agreement and preferred to try the case. RT, 3/4/91, at 63.

Twitty asserts that he told Lopez and Escobedo to seriously consider whether they wished to proceed with plea negotiations and that he agreed to contact the government on their behalf only after they called him numerous times and threatened to communicate with the government directly. RT, 3/4/91, at 22-23, 92. Twitty claims that he offered Lopez and Escobedo a “second opinion” regarding case strategy RT, 3/4/91, at 90, and maintains that he honored the defendants’ request that he secretly contact the government without notifying Tarlow because he considered Lopez and Escobedo to be “friends.” Id. Twitty purportedly considered himself to be little more than a “mailman” delivering a message to the government. RT, 3/4/91, at 95.

Twitty also denies suggesting to Lopez that Tarlow need not be present at the meeting or that a favorable disposition could be obtained more easily without Tar-low. RT, 3/4/91, at 55. Instead, Twitty avers that he told Lopez to speak with Tarlow about his interest in plea negotiations, but that Lopez refused because he believed that Tarlow would no longer represent him if he chose to cooperate with the government or plead guilty. RT, 3/4/91, at 18-19. Twitty also contends that he suggested to Lopez that he retain another lawyer if Tarlow could not represent Lopez in plea negotiations; Lopez refused, Twitty relates, because the defendant believed Tarlow was a good lawyer and wanted him to try the case if it went to trial. RT, 3/4/91, at 26. 12

*1441 The record makes clear that Twitty did indeed contact AUSA Lyons on behalf of Lopez and Escobedo. Once again, the parties differ as to what transpired next. Lyons asserts that when Twitty contacted him, Twitty explained that Lopez did not want Tarlow present at any meetings with the government because “Tarlow didn’t represent his best interest in this particular context.” RT, 11/19/90, at 52.

Lyons claims he did not ask Twitty to explain further. RT, 11/19/90, at 54. Instead, the prosecutor hypothesized that Lopez feared that if Tarlow learned of the negotiations with the government, Lopez’s family would be endangered. This belief was allegedly supported by information possessed by the government which indicated that the families of Lopez and Esco-bedo had been threatened by a drug source. RT, 11/19/90, at 53; RT, 12/13/90, at 14. Lyons assumed that Lopez was part of a drug ring of some sort and that Tarlow’s fees were being paid by this ring. Second Lyons Second Deck at II 4.

Lyons avers that it was his preference that Tarlow be present at the meetings or that Lopez be represented by some other attorney. Second Lyons Decl. at 115. Twitty told Lyons that Lopez wanted to speak to the government without a lawyer. Id. In addition, Twitty purportedly represented “that Lopez had come to trust him [Twitty], and that, while Lopez understood Twitty could not represent him, Lopez was comfortable meeting with [sic] government if Twitty were there.” Id.

Twitty’s testimony contradicts the representations made by Lyons. Twitty alleges that, upon contacting Lyons, he informed the AUSA that Lopez did not want Tarlow present because Lopez believed Tarlow would no longer represent him if he considered a guilty plea and because Lopez wanted Tarlow to take the case to trial if no plea agreement was reached. RT, 3/4/91, at 26. Twitty denies ever telling Lyons that Lopez believed Tarlow did not represent his best interests in this matter. RT, 3/18/91, at 61-62. Moreover, Twitty insists that he explicitly told Lyons during their first telephone conversation and on numerous occasions thereafter that, to his knowledge, “nobody that Lopez supposedly worked for or with was paying any of his fees”, RT, 3/4/91, at 40, and that Lopez did not believe his safety or that of his family would be jeopardized if Tarlow were to learn of the plea negotiations. Id. at 40, 74. Twitty asserts that this was the message “that we communicated strongest and most forthright in everything in terms of these conversations.” Id. at 39. Twitty also contends that “all the government’s claims about dangers to the Lopez family are simply unfounded.” Id. at 74.

During their initial conversation, Twitty and Lyons discussed the “sensitivity” of Lopez meeting with the government without his attorney’s knowledge or consent. RT, 11/19/90, at 52. Lyons informed Twitty that he would seek the intervention of the court. RT, 3/4/91, at 24; Second Lyons Deck at ¶ 6.

Lyons eventually had an ex parte communication with the court; the prosecutor testified that he informed the court that the “common context” in which approaches such as that made by Lopez occur are “situations in which the defense lawyer is somehow connected to somebody else and that the defendant is concerned about word getting back.” RT, 11/19/90, at 58. Lyons failed to inform the court of Twitty’s explanation as to why Lopez wished to meet with the government without his lawyer. Judge Smith determined that Lopez should be interviewed by another judicial officer. Second Lyons Deck at ¶ 10.

An in camera interview of Lopez by Magistrate Judge Claudia Wilken was held on May 21, 1990. Tarlow was not present for nor informed of the proceeding. Although Lyons testified that he did not inform Magistrate Judge Wilken of his suspi *1442 cion concerning the source of Tarlow’s fees, the Magistrate made numerous references to the alleged fee arrangement during the May 21, 1991 in camera proceeding. RT, 5/21/90, at 4, 5, 7. 13 The transcript of the May 21 proceeding thus strongly suggests that Magistrate Judge Wilken was operating under the assumption that Tarlow’s fees were being paid by a third party.

Lopez told Magistrate Judge Wilken that he wished to ask the government two questions about his case. RT, 5/21/90, at 9-10, 15-17. Magistrate Judge Wilken warned Lopez of the danger of meeting with the government without assistance of counsel. RT, 5/21/90, at 6-7, 9-10. She advised Lopez that he could have Tarlow assist him in the matter, have a public defender appointed, or represent himself. Id. at 14. The Magistrate Judge also informed Lopez of his right to counsel and advised him that Twitty was representing his client, Escobe-do, and not Lopez. Id. at 21.

The Magistrate Judge then read Lopez a written waiver, prepared by the government, which stated that Lopez was represented by Tarlow, that he wished to speak to the government without Tarlow present, that he did not believe Tarlow represented his best interests in the matter, and that he waived his right to have Tarlow’s assistance at the meeting. RT, 5/21/90, at 21-24. Lopez signed the waiver, Id. at 25, but sought assurances from the court that he was waiving his right to counsel only for his initial plea negotiations with the government. Id. at 23.

At the close of the proceeding, AUSA Lyons appeared before the court. Lyons explained that the meeting between the government, Lopez, Escobedo and Twitty would be “off the record.” RT, 5/21/90, at 27. The Magistrate Judge informed Lyons that Lopez had waived his attorney’s presence for the purpose of asking the government two questions and that she would convene another in camera proceeding if the defendant wished to proceed with discussions with the government after receiving answers to his questions. Id. at 25-26, 32.

There is general agreement among the parties as to much of what occurred during the first meeting among the government, Lopez and Escobedo. The meeting, which lasted for approximately one and a half hours, RT, 3/4/91, at 28, took place in Lyons’ office and was attended by Lyons, Twitty, Lopez and Escobedo. RT, 2/4/91, at 22, Lyons Deck at ¶ 2. The meeting apparently began with Lyons administering the Miranda warning to Lopez. RT, 3/4/91, at 29; Second Lyons Deck at H 13. Lyons explained that the meeting was to be a “free talk” and that the government would not use any of the information from the meeting against Lopez or Escobedo, Second Lyons Deck at ¶112. No record of the meeting was kept. Lyons Deck at 11 2. Lyons alleges he told Lopez that he preferred to have Tarlow or some other lawyer present representing Lopez, but that Lopez indicated he wished to proceed without representation. Second Lyons Deck at II13.

Twitty informed Lopez at the outset of the meeting that he could not act as Lopez’s lawyer. RT, 2/4/91, at 25; RT, 3/4/91, at 30. Despite this, Twitty apparently advised both Lopez and Escobedo during the meeting. RT, 11/19/90, at 73, 77; Lyons Second Deck at ¶¶ 13, 17; Gov. Supp. Response at 4.

Lopez was primarily interested in learning whether there was any way he could be released to be closer to his children and, if he were to cooperate with the government, how his safety and that of his family could be guaranteed. RT, 2/4/91, at 22-23; Second Lyons Deck at 1114. Lopez appeared deeply disturbed by the plight of his children and cried at one point during the meeting. RT, 2/4/91, at 23; RT, 3/18/81, at 31; Second Lyons Deck at H 15.

*1443 At some point, Lyons asked if Tarlow’s fees were being paid by the source of the drugs in the transaction; Twitty explained that the fees were not being paid by any third party but instead by Lopez and his family. RT, 3/18/91, at 75-76; Second Lyons Decl. at ¶ 19. Twitty again informed Lyons that Lopez did not want Tar-low present at the meeting because Tar-low’s representation was conditioned on Lopez not entering a plea and because Lopez feared he would lose Tarlow’s services if Tarlow were to learn of the plea negotiations. Second Lyons Decl. at ¶ 19. Lopez concurred in Twitty’s explanation. Id.

Lopez alleges that during the first meeting Lyons told him “it’s better if you get rid of Tarlow so we can work out a deal and get this thing over.” RT, 2/4/91, at 57, 62-63. According to Twitty, Lyons advised Lopez that if Tarlow had conditioned his representation on Lopez not pleading guilty, Lopez would have to fire Tarlow and retain new counsel in the event he chose to cooperate. RT, 3/18/91, at 72-73.

Lopez provided no concrete information to the government during the meeting, although he did indicate that he might be willing to provide names and other information that would assist the prosecution. RT, 2/4/91, at 58-59; RT, 3/4/91, at 31-32.

Following the first meeting, Twitty spoke with Lopez and Escobedo once or twice by telephone and traveled to Pleasan-ton to meet with the two men to further discuss the possibility of a plea agreement, RT, 3/4/91, at 34; once again, these contacts were concealed from Tarlow. Lopez contends that Twitty encouraged him to participate in a second meeting with the government and to provide information concerning the drug source, RT, 2/4/91, at 61; Twitty claims that it was Lopez who requested that the second meeting be scheduled. RT, 3/4/91, at 35. In any event, Twitty called Lyons and over the course of two or three telephone conversations arranged for a second meeting with the government. RT, 3/4/91, at 35. During one of these conversations, Twitty again stressed to Lyons that Tarlow’s fees were not being paid by a third party and that Lopez’s desire to proceed without Tar-low was not based on fear for his safety or that of his family. Second Lyons Decl. at ¶ 20.

On May 30, 1991, Lopez was once again taken before Magistrate Judge Wilken, who verified that Lopez wished to meet with the government a second time without Tarlow present. RT, 5/30/91, at 3. Like the first meeting, the second was held in Lyons’ office and was attended by Lyons, Lopez, Escobedo, and Twitty. 14 At the second meeting, Lyons pressured Lopez and Escobedo to provide some significant information concerning the drug source as a sign of good faith, RT, 11/19/90, at 78-79; RT, 2/4/91, at 27; RT, 3/4/91, at 40-41; RT, 3/18/91, at 69-71. Although hesitant to cooperate, RT, 3/4/91, at 100, Lopez eventually gave Lyons several names of individuals who allegedly were involved in drug trafficking. RT, 3/4/91, at 42; RT, 2/4/91, at 29-30. 15

Lopez maintains he was pressured by both Twitty and Escobedo to provide information to Lyons. RT, 2/4/91, at 28-29. Twitty denies urging Lopez to furnish information to the government, RT, 3/4/91, at 102, and claims to have advised his client, Escobedo, to “do what you want to.” Id., at 101. 16 Lopez also alleges that after he mentioned one of the names to Lyons, Twitty interjected that that information would implicate Lopez’s entrapment defense. RT, 2/4/91, at 31-32. Twitty denies making any reference to defense strat *1444 egies during the meeting. RT, 3/4/91, at 101.

Following the second meeting, Lyons sent Twitty a proposed plea agreement for Escobedo and indicated that, while the same type of deal might be available for Lopez, Lopez would have to obtain a lawyer. RT, 11/19/90, at 82. Twitty provided Lopez with a copy of the proposed plea agreement. RT, 2/4/91, at 78. Lopez claims to have been told by Twitty that Twitty could act as his lawyer in finalizing the plea agreement. Id. at 79-80. Twitty discussed the plea agreement with Lopez and Escobedo; he eventually contacted Lyons and told the prosecutor that he was trying to determine a means of avoiding a mandatory minimum sentence for Lopez and Escobedo. RT, 11/19/90, at 83. The record indicates that, at some point, Lopez and Escobedo rejected the plea agreement proposed by the government. RT, 2/4/91, at 78.

In early August 1990, Lyons had a telephone conversation with Harold Rosenthal, attorney for co-defendant Alfredo Olivas; during this call the prosecutor alerted Ro-senthal to the fact that the government had been negotiating a potential plea agreement with Lopez and Escobedo without Tarlow’s presence, consent, or knowledge. Second Lyons Decl. at 1126. Rosenthal contacted Twitty, who warned Rosenthal not to inform Tarlow of the meetings because it would “mess up the deal.” RT, 3/18/91, at 86-87. Despite Twitty’s admonition, Ro-senthal notified Tarlow. Id. at 87. Tarlow quickly filed papers with the court indicating that he had learned of the secret meetings between his client and the government.

On August 15, 1990, Tarlow appeared before the court and withdrew as counsel of record for Lopez because of the conflict that had been created by the secret meetings. At the August 15 hearing, the government informed the court that there was no evidence of impropriety on Tarlow’s part.

Defendant Lopez has now filed his motion to dismiss the indictment, alleging that the government violated both his sixth amendment right to counsel and rules of professional conduct, which prohibit an attorney from communicating with an opposing party who is represented without the knowledge and consent of opposing counsel. The court held a series of evidentiary hearings on the motion and took testimony from AUSA Lyons, attorney Twitty, and defendant Lopez. 17

DISCUSSION

The proceedings in connection with defendant Lopez’s motion to dismiss focused primarily on the applicability to this case of ethical rules limiting contact between an attorney and a represented party, and it is to this issue that the court initially turns.

I. Ethical Requirements

Rule 2-100 of the Rules of Professional Conduct of the State Bar of California states as follows:

(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer ...

(C) This rule shall not prohibit:

(1) Communications with a public officer, board, committee, or body;

(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party’s choice; or

(3) Communications authorized by law. Rule 2-100 tracks the language of American Bar Association Disciplinary Rule (“DR”) 7 — 104(A)(1) and ABA Model Rule of Professional Conduct 4.2. 18 This court, *1445 through its Local Rules, has adopted the State Bar’s Rules of Professional Conduct as the applicable standards of professional conduct for the Northern District of California. 19

In the case at bar, the prosecutor essentially takes the position that he is exempt from Rule 2-100, and therefore, from the rules explicitly adopted by this court to govern the conduct of attorneys who appear before it. In asserting this position, the prosecutor relies primarily on a policy directive issued by Attorney General Richard Thornburgh on June 8, 1989. 20 The Thornburgh Memorandum declares that Department of Justice (“DOJ”) attorneys engaged in law enforcement activity are not bound by the strictures of DR 7-104.

While the prosecutor relies primarily on the Thornburgh Memorandum to support his position with regard to the alleged violation of this court’s Local Rules, he also advances several other arguments. First, the government posits that the separation of powers doctrine prevents this court from enforcing its Local Rules against DOJ attorneys where, as here, there is a conflict between those Rules and the policies of the Department of Justice. Second, the prosecutor contends that Rule 2-100 exempts all criminal investigations from coverage. Third, it is argued that the secret meetings between the government and defendant Lopez are akin to pre-indictment contacts and therefore should be considered exempt from Rule 2-100.

Finally, the government suggests that several factors particular to this case counsel against a finding of prosecutorial misconduct. These include the facts that the Magistrate intervened prior to the secret meetings and that defendant Lopez initiated the contact with the government and waived his right to counsel.

As the court will explain below, the government’s contentions are completely devoid of merit.

A. Thornburgh Memorandum

The Thornburgh Memorandum laments the purported use of DR 7-104 by defense counsel “to prohibit communications by law enforcement personnel with the target of a criminal investigation, whether or not a constitutional right to counsel has attached.” Memo at 1. The Memorandum identifies two contexts in which the “problem” has most often arisen: (1) where government agents or attorneys seek to covertly or overtly interview a suspect who has retained counsel; and (2) in instances of multiple representation, where the principal target of an investigation pays an attorney to represent several individuals, or where an organization under investigation pays an attorney who claims to represent all employees of the organization. Memo at 2.

The Thornburgh Memorandum reflects the Attorney General’s perception that enforcement of DR 7-104 represents “a substantial burden on the law enforcement process.” Memo at 2. As a result, the Memorandum seeks to exempt DOJ attorneys from compliance with the ethical duties created by the rule. Much of the language of the Memorandum suggests that the Attorney General’s policy applies primarily in the pre-indictment context. 21 *1446 Moreover, the examples provided by the Memorandum suggest that the policy was meant to be applied in organized crime cases and corporate or organizational-type settings. Memo at 6.

While the Memorandum thus seems to suggest that the parameters of the Attorney General’s policy are limited, it nonetheless closes with the sweeping statement that “the ‘authorized by law’ exemption in DR 7-104 applies to all communications with represented individuals by Department attorneys or by others acting at their direction.” Memo at 7 (emphasis added). If there were any doubts as to the scope of the policy, they have been dispelled by the brief filed by the Department of Justice in this case, which makes clear the Department’s position that the purported exemption exists after indictment and outside the corporate and organized crime contexts. DOJ Brief at 4-7.

There are profound flaws in the Attorney General’s policy and they are demonstrated within the four corners of the Thornburgh Memorandum. Even a cursory examination of the authority cited by the Attorney General reveals that the cases do not support the policy articulated in the Memorandum.

For example, the Attorney General cites Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), for the proposition that “when an individual believes that his lawyer is representing not his own interests but the interests of a third party, and that announcing to his lawyer that he has made contact with Government investigators could have dire consequences,” direct communication with the government may benefit the client and vindicate his rights. Memo at 2. Wood nowhere makes such a radical statement.

The Wood Court found that employees of an adult theater who were represented by an attorney paid by their employer might have been prejudiced by the potential conflict of interest between the employer and the employees. Wood, 450 U.S. at 266-67, 101 S.Ct. at 1100-01. The Court noted the dangers of a criminal defendant’s lawyer being paid by a third party and remanded the defendants’ case for a hearing to determine whether the conflict of interest had resulted in a due process violation. Id. at 271-72, 101 S.Ct. at 1108-04. However, the Court’s opinion makes it clear that the solution to any conflict of interest between defendants and their attorney would be appointment of new counsel, not direct communication between the defendants and the government. Id.

Other examples of the Attorney General’s strained use of existing case law are found in the Memorandum’s reliance on Kolibash v. Comm. on Legal Ethics of W. Virginia Bar, 872 F.2d 571 (4th Cir.1989) and Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963). In Koli-bash, the Fourth Circuit ruled that disciplinary proceedings involving a federal officer could be removed to federal court. 872 F.2d at 575. Nowhere does Kolibash suggest that federal officers are not subject to governing ethical rules. It is even harder to discern the relevance of Sperry v. Florida, where the Supreme Court ruled that a state does not have the power to prohibit patent agents authorized by the U.S. Patent Office from operating within its boundaries. 373 U.S. at 401-402, 83 S.Ct. at 1334-35. The court is hard pressed to see what guidance Sperry offers on the issue of whether ethical rules apply to DOJ attorneys.

Finally, the Attorney General’s Memorandum cites to numerous cases which purportedly recognize the legitimacy of undercover law enforcement investigations, even when the investigations involve individuals who keep an attorney on retainer. Memo at 2. Without exception, however, these cases involve pre-indictment investigations. 22 Several of the decisions cited by *1447 the Department of Justice go to great lengths to distinguish the interests at stake in the pre-indictment context from those which must be considered once an individual has been indicted and is in custody. 23

Indeed, those courts asked to decide whether DR 7-104 applies in the pre-indictment context have assumed, without finding it necessary to discuss, that the Rule applies to government attorneys in the post-indictment context. See, e.g., United States v. Hammad, 858 F.2d 834, 837-38 (2d Cir.1988), cert. denied, — U.S. —, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990) (DR 7-104 applies in criminal prosecutions in criminal cases; closer question whether Rule applies pre-indictment); United States v. Lemonakis, 485 F.2d 941, 955 (2d Cir.1973) (court assumes it would be improper for a prosecutor to interview a criminal defendant under indictment in the absence of his retained counsel).

This court has attempted without success to locate any authority for the proposition that DR 7-104 does not apply to a government attorney who communicates with a represented individual under indictment. This, of course, is not surprising in light of the tortured logic of the Attorney General’s policy.

The Department asserts that government attorneys involved in criminal investigations are “authorized by law” to make contact with represented individuals by virtue of federal statutes which empower the Attorney General to investigate and prosecute criminal violations. Memo at 5, 7; Gov.Supp. Response at 6. The implications of this assertion are alarming, since nearly all conceivable action taken by a prosecutor involve these activities. Indeed, the entire post-indictment conduct of a prosecutor is driven by the goal of completing the prosecution.

The government argues that federal statutes 28 U.S.C. §§ 509, 515(a), 516, 533 and 547 authorize Department attorneys to make contact with represented individuals in criminal investigations. Gov.Supp. Response at 6. However, these are nothing more than general authorizing statutes; none expressly or impliedly authorize government attorneys either to disregard court-adopted rules or to violate ethical rules regarding contact with represented individuals. For example, section 547 defines the duties of a U.S. Attorney. 24 *1448 Courts interpreting section 547 have consistently ruled that this statute does not exempt U.S. Attorneys from their obligations to act fairly and with proper deference to the rights of the accused. United States v. Bess, 593 F.2d 749, 754 (6th Cir.1979); Dugan Drug Stores, Inc. v. United States, 326 F.2d 835, 837 (5th Cir.1964); Dunn v. United States, 307 F.2d 883, 885 (11th Cir.1962).

The ABA Committee on Professional Ethics has found only limited circumstances where the “authorized by law” exception to DR 7-104 applies, such as where “applicable statutes or procedural rules or rules of law in a particular jurisdiction expressly permit an offer of judgment to be served directly upon an adverse party....” ABA Comm, on Prof. Ethics & Grievances Informal Op. 985 (1967). There is no federal statute which authorizes government attorneys to question represented parties in the absence of counsel 25 and the rule of law in this jurisdiction, as embodied in this court’s Local Rules, explicitly prohibits such contact.

Were this court to accept the Department’s argument in this regard, it is not clear that there would be any conduct the prosecutor could not undertake, as long as it was pursuant to his or her responsibility to investigate and prosecute crimes. DOJ attorneys would be exempt from rules adopted by federal courts to govern ethical conduct of attorneys practicing before them. This is, quite simply, an unacceptable result. Local rules are clearly meant to apply to all attorneys practicing in federal court, regardless of the client they represent.

Without an ethical restraint, a prosecutor’s authority to communicate with represented individuals would be virtually limitless. 26 The courts have been careful to avoid such a result and have thus held that Department attorneys are authorized to communicate with represented individuals without their attorney only in the pre-in-dictment context, United States v. Hammad, 858 F.2d at 839-40 (use of informants by prosecutor in pre-indictment, non-custodial situation generally falls within “authorized by law” exception to Rule); United States v. Chestman, 704 F.Supp. 451, 454 (S.D.N.Y.1989), rev’d on other grounds, 903 F.2d 75 (2d Cir.1990), reconsideration granted, en banc, Fed.Secur.L.Rep. (CCH) 11 95439 (government recording of conversations between informant and represented individual are “authorized by law” in the pre-indictment, non-custodial context), and where specific procedural rules authorize the government conduct. See, e.g., United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1114, 107 L.Ed.2d 1021 (1990) (questioning of represented individual before a grand jury in the absence of counsel falls within the “authorized by law” exception of Rule DR 7-104 in light of Fed.R.Crim.P. 6(d), which prohibits the presence of defense counsel in the grand jury room).

The Attorney General’s “authorized by law” theory thus has no foundation. Indeed, there are compelling reasons why the ethical prohibition encompassed in Rule 2-100 and analogous ABA rules should apply to DOJ attorneys, at least in the post-indictment context.

The ethical norm that an attorney should not communicate with a represented individual in the absence of that individual’s attorney is longstanding and was codified as Canon 9 of the ABA Canon of Professional Ethics in 1908. 27 DR 7-104 is widely accepted and the rule or its equiva *1449 lent is now in effect in every state. 28 The rule is designed both to protect the represented individual from overreaching opposing counsel and to ensure that the adverse party’s attorney can function properly. State Bar of California, Formal Opinion No. 1979-49, at IIA-128 (1979); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 453 (1979). The prohibition against communication with a represented party thus recognizes the inherent danger in a layperson conducting negotiations with an opposing lawyer and the likelihood that such negotiations would destroy the confidence essential to the attorney-client relationship and hamper the subsequent performance of the represented party’s counsel. United States v. Batchelor, 484 F.Supp. 812, 813 (E.D