Ethics for Prosecutors 101 Sends Gerald Lefcourt to D.C.

Federal prosecutors are heading back to school, and they owe it all to Kenneth Starr. After the flurry of complaints last fall about prosecutorial overzealousness, pursuant to Mr. Starr’s pursuit of one William Jefferson Clinton, Congress voted into law an amendment that binds all Federal prosecutors to the ethics rules in the state in which they work. As of April 19, under the new McDade law, no Federal prosecutor can directly contact a potential witness or defendant (hear that, Monica?) known to have a lawyer (even if the witness’ lawyer is named William Ginsburg).

The passage of the law means prosecutors in the U.S. Attorney’s offices in Manhattan and Brooklyn have gone back to class to brush up on the ethics rules that govern prosecutors in New York State. Most have already attended their first round of group training sessions, covering such areas as the issuing of subpoenas and search warrants, grand jury investigations and the interrogation of suspects and witnesses. They will attend further sessions, said John McEnany, the professional responsibility officer with the U.S. Attorney in Manhattan.

Attending the training sessions is one thing, liking the new rules is another. The Feds are most upset about this: Certain undercover operations could be imperiled under the limits of the McDade law, they argue. Mr. McEnany said that his colleagues continue “working with Congress” to address their concerns about the law. Zachary Carter, the U.S. Attorney in Brooklyn, even traveled to Washington, D.C., on March 24 to testify before the Senate Judiciary Committee in favor of a repeal of the law.

Enough fuss has been raised that some members of Congress have been looking at amending the law. And in a strange twist, they quietly brought in New York City defense attorney Gerald Lefcourt, a thorn in the side of many a prosecutor, for advice on how to make the changes.

Mr. Lefcourt, former president of the National Association of Criminal Defense Lawyers, traveled down for a briefing on April 15 organized by the Senate Republican Policy Committee. Mr. Lefcourt propounded the benefits of the law, while Justice Department official Thomas Perrelli (a former Jenner & Block defense attorney) argued against.

Their debate was what kids call a do-over. It followed an earlier briefing on March 26 called by Senator Orrin Hatch, which included only Justice Department and other law enforcement officials. Senator Hatch has proposed a bill repealing the ethics stricture. Other Republicans worried that making such a move without hearing from the other side would leave behind a stench they can ill afford. They were being asked, after all, not only to undo an ethics law (apple pie, motherhood), but an ethics law that they had pushed and that had been passed 345 to 82 in the House of Representatives. (In the Senate, it passed as part of a general appropriations bill, so there was no direct vote.) So Senator Larry Craig and the Republican staff invited Mr. Lefcourt to a new briefing, for balance.

Ken Foss, who helped organize the event, said it ended up being a wild debate: “Both lawyers used their trial experience to dance around the leading questions and to push to the heart of the issue.”

The main arguments centered on whether Federal prosecutors should be allowed to police themselves. Mr. Hatch’s bill, in an effort to give prosecutors uniform ethical standards rather than a patchwork of standards controlled by state judges, would allow self-policing. “This position is disturbing and legally tenuous,” The Washington Post recently editorialized.

A more moderate amendment, proposed by Senator Patrick Leahy, a Democrat, now offers an alternative. That bill also exempts prosecutors from certain state ethics rules, and designates the organization of Federal judges to write the controversial witness contact rules.

One observer sees trouble for defense attorneys like Mr. Lefcourt if the McDade law stays intact. Said St. John’s University law professor John Q. Barrett: “One possible response by the Government is that the lawyers would just stop supervising the agents. The agents will conduct their operations without the supervision of an assistant U.S. attorney. If that happens, that’s a bad consequence.”

Meanwhile, Mr. Lefcourt may already be moving on to new legislative battles: On May 6, he returns to Washington to mingle yet again with Republicans in Congress. He and former Attorney General Edwin Meese will try to persuade the Senate Government Affairs Committee to stop making everything a Federal crime.

Feelings of Mortality at Kramer Levin

George Hoare Jr., a well-liked intellectual property partner at the midtown firm of Kramer Levin Naftalis & Frankel, died quietly at his desk at noontime on April 6, at the early age of 65. Many Kramer Levin attorneys later attended a church service in his honor, and the firm made a contribution to the American Heart Association at his family’s suggestion.

In the wake of Mr. Hoare’s death, according to the firm’s administrative director Bob Meredith, some of the staff went to the counseling firm it retains, the Employee Development Center, for grief counseling. Apparently, though, none of the attorneys went, Mr. Meredith said.

The lawyers certainly ought to consider it, said Samuel Klagsbrun, a psychiatrist the firm once retained to aid associates in working through their feelings toward partners. “Lawyers like to be in charge, they like to be focused, to be in control. When something like this really hits them in the face, their sense of vulnerability is heightened, and they become uncomfortable with that,” said Dr. Klagsbrun.

He went on to explain: “A classic reaction is to try to work very hard in figuring out in which way did the one who died behave or live radically differently from you, so it’s obvious why it happened to him and why it’s never going to happen to you.”

That’s often followed by the more profound questions: “‘Is that what my life is all about? My children don’t know who I am. This guy’s kids hardly knew their father, I should be doing different. I ought to get out of the field.’ All those kinds of fantasies come up.”

Dr. Klagsbrun is not optimistic that law firms will deal with lawyers’ deaths more searchingly in the future. “I think they’d rather die themselves than do that,” he said, not chuckling.

Errata

N.Y. Law wrote last week that Columbia University School of Law’s fifth-place position in the U.S. News & World Report ‘s rankings of law schools this year was lower than it had been in the past. In fact, the school has long held the fifth-place position. Also, the headline in the Columbia student newspaper actually read: “First Warning Sign of the Apocalypse: N.Y.U. Overtakes CLS in U.S. News Ranking.” N.Y. Law regrets the errors.

You can reach N.Y. Law by confidential e-mail at mfleischer@observer.com.