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  4. B. Ethical Obligations of Federal Government Attorneys

B. Ethical Obligations of Federal Government Attorneys

1. In General

Lawyers representing the Federal Government are subject to the ethical rules of the states in which they are licensed and the courts in which they practice. See ABA Model Rule of Professional Conduct 8.5 (lawyers are subject to the disciplinary authorities of the jurisdictions in which they are admitted to practice and the jurisdictions in which they provide legal services); cf. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 95-396 n.64 (1995) (concluding from the Department of Justice Appropriation Authorization Act requirement that attorneys "be duly licensed and authorized to practice as an attorney under the laws of a State, territory, or the District of Columbia" that lawyers representing the Federal Government are governed by state ethical rules). Attorneys practicing on behalf of the Federal Government are also subject to the Civil Justice Reform Executive Order referenced below.

2. Executive Order 12988 - Civil Justice Reform

Signed into law on February 5, 1996, this executive order provides guidelines for Federal Government attorneys with the purpose of promoting "just and efficient government civil litigation." The order, which revokes and replaces a 1991 executive order on the same subject, sets forth the litigation practices expected of attorneys litigating on behalf of the United States, including appropriate presuit and postfiling settlement efforts and use of Alternative Dispute Resolution, streamlining discovery, seeking sanctions for opposing counsel misconduct, and using litigation resources efficiently. A copy of Executive Order 12988 and OGC Guidance on its implementation are located at Part 3 section I. of the Manual.

3. Citizen Protection Act - 28 U.S.C. § 530B1

In response to efforts by the Department of Justice (DOJ) to exempt its lawyers from state ethics rules, Congress enacted the Citizen Protection Act on October 21, 1998 (effective April 19, 1999), which specifically made DOJ attorneys subject to state ethics rules governing attorney conduct. Section 530B of Title 28, entitled "Ethical Standards for Attorneys for the Government," states in pertinent part:

An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.

See 28 C.F.R. pt. 77 (2003) implementing 28 U.S.C. § 530B.

While the act covers only DOJ attorneys,2 EEOC lawyers should be cognizant that this statute was passed because of DOJ's attempts to set its own standards for ex parte contacts of represented persons and parties and its view that its attorneys should be exempt from the ex parte contact rules of the states in which they are licensed and in which they practice. See generally Charles A. Weiss, Lawyers Bypassing Lawyers, 28 Litigation, Winter 2002, at 42.

1 This legislation is also referred to as the McDade Amendment.

2See definition of "attorney for the government" at 28 C.F.R. § 77.2(a) (2003).