28 C.F.R. § 77.2

Definitions

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As used in this part, the following terms shall have the following meanings, unless the context indicates otherwise:

(a) The phrase attorney for the government means the Attorney General; the Deputy Attorney General; the Solicitor General; the Assistant Attorneys General for, and any attorney employed in, the Antitrust Division, Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources Division, and Tax Division; the Chief Counsel for the DEA and any attorney employed in that office; the Chief Counsel for ATF and any attorney employed in that office; the General Counsel of the FBI and any attorney employed in that office or in the (Office of General Counsel) of the FBI; any attorney employed in, or head of, any other legal office in a Department of Justice agency; any United States Attorney; any Assistant United States Attorney; any Special Assistant to the Attorney General or Special Attorney duly appointed pursuant to 28 U.S.C. 515; any Special Assistant United States Attorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to conduct criminal or civil law enforcement investigations or proceedings on behalf of the United States; and any other attorney employed by the Department of Justice who is authorized to conduct criminal or civil law enforcement proceedings on behalf of the United States. The phrase attorney for the government also includes any independent counsel, or employee of such counsel, appointed under chapter 40 of title 28, United States Code. The phrase attorney for the government does not include attorneys employed as investigators or other law enforcement agents by the Department of Justice who are not authorized to represent the United States in criminal or civil law enforcement litigation or to supervise such proceedings.

(b) The term case means any proceeding over which a state or federal court has jurisdiction, including criminal prosecutions and civil actions. This term also includes grand jury investigations and related proceedings (such as motions to quash grand jury subpoenas and motions to compel testimony), applications for search warrants, and applications for electronic surveillance.

(c) The phrase civil law enforcement investigation means an investigation of possible civil violations of, or claims under, federal law that may form the basis for a civil law enforcement proceeding.

(d) The phrase civil law enforcement proceeding means a civil action or proceeding before any court or other tribunal brought by the Department of Justice under the authority of the United States to enforce federal laws or regulations, and includes proceedings related to the enforcement of an administrative subpoena or summons or civil investigative demand.

(e) The terms conduct and activity means any act performed by a Department attorney that implicates a rule governing attorneys, as that term is defined in paragraph (h) of this section.

(f) The phrase Department attorney[s] is synonymous with the phrase “attorney[s] for the government” as defined in this section.

(g) The term person means any individual or organization.

(h) The phrase state laws and rules and local federal court rules governing attorneys means rules enacted or adopted by any State or Territory of the United States or the District of Columbia or by any federal court, that prescribe ethical conduct for attorneys and that would subject an attorney, whether or not a Department attorney, to professional discipline, such as a code of professional responsibility. The phrase does not include:

(1) Any statute, rule, or regulation which does not govern ethical conduct, such as rules of procedure, evidence, or substantive law, whether or not such rule is included in a code of professional responsibility for attorneys;

(2) Any statute, rule, or regulation that purports to govern the conduct of any class of persons other than attorneys, such as rules that govern the conduct of all litigants and judges, as well as attorneys; or

(3) A statute, rule, or regulation requiring licensure or membership in a particular state bar.

(i) The phrase state of licensure means the District of Columbia or any State or Territory where a Department attorney is duly licensed and authorized to practice as an attorney. This term shall be construed in the same manner as it has been construed pursuant to the provisions of Pub. L. 96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the Departments of Commerce, Justice and State, the Judiciary, and Related Agency Appropriations Act, 1999, Pub. L. 105-277.

(j)(1) The phrase where such attorney engages in that attorney's duties identifies which rules of ethical conduct a Department attorney should comply with, and means, with respect to particular conduct:

(i) If there is a case pending, the rules of ethical conduct adopted by the local federal court or state court before which the case is pending; or

(ii) If there is no case pending, the rules of ethical conduct that would be applied by the attorney's state of licensure.

(2) A Department attorney does not “engage[] in that attorney's duties” in any states in which the attorney's conduct is not substantial and continuous, such as a jurisdiction in which an attorney takes a deposition (related to a case pending in another court) or directs a contact to be made by an investigative agent, or responds to an inquiry by an investigative agent. Nor does the phrase include any jurisdiction that would not ordinarily apply its rules of ethical conduct to particular conduct or activity by the attorney.

(k) The phrase to the same extent and in the same manner as other attorneys means that Department attorneys shall only be subject to laws and rules of ethical conduct governing attorneys in the same manner as such rules apply to non-Department attorneys. The phrase does not, however, purport to eliminate or otherwise alter state or federal laws and rules and federal court rules that expressly exclude some or all government attorneys from particular limitations or prohibitions.

[Order No. 2216-99, 64 FR 19275, Apr. 20, 1999, as amended by Order No. 2650-2003, 68 FR 4929, Jan. 31, 2003]

Notes of Decisions

Cited in 10 cases (3 in the last 5 years), 1998–2024 · leading case: Augustine v. Dep't of Vets. Affairs, 429 F.3d 1334 (Fed. Cir. 2005).

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Augustine v. Dep't of Vets. Affairs, 429 F.3d 1334 (Fed. Cir. 2005). · cites it 2× “To the contrary, 28 C.F.R. § 77.2 (which is referred to by section 530B(e) for the definition of “attorney for the Government”) explicitly rejects the proposition that government attorneys must comply with state licensing requirements.”

United States v. Sonya Evette Singleton, Nat'l Ass'n of Crim. Def. Lawyers, Amicus Curiae, 165 F.3d 1297 (10th Cir. 1999). “It is indeed odd that federal prosecutors will soon be expressly subject to State laws and rules regarding professional conduct, yet may continue to ignore the federal prohibition contained in § 201(c)(2).”

Donald K. Stern v. United States Dist. Court for the Dist. of Massachusetts, 214 F.3d 4 (1st Cir. 2000). “See 28 C.F.R. § 77.2 (h)(1) (explaining that the applicability of section 530B does not depend on “whether or not [the state or local] rule is included in a code of professional responsibility for attorneys”).”

United States ex rel. United States Attorneys for the E. & W. Districts of Kentucky v. Kentucky Bar Ass'n, 439 S.W.3d 136 (Ky. 2014). “28 C.F.R. § 77.2 (h). . 28 C.F.R. § 77.1 (b).”

Ida v. United States, 207 F. Supp. 2d 171 (S.D.N.Y. 2002). “28 C.F.R. § 77.2 (h)(3) (2000). 105 . Chevron, U.”

In Re: Jeffrey B. Clark (D.D.C. 2023). · cites it 2× “See 28 C.F.R. § 77.2 (a). For example, it defines the term to include the Attorney General, Deputy Attorney General, Solicitor General and, “the Assistant Attorneys General”—the same position held by Mr.”

State v. Nash (Ariz. Ct. App. 2019). “See 28 C.F.R. § 77.2 (a) (2019) (“attorney for the government” is defined as including various positions and individuals working for the United States and excluding even U.”

In re Clark (D.C. 2024). “15 28 C.F.R. § 77.2 (h) (emphasis added); see also id.”

United States Sec. & Exch. Comm'n v. Hartman Wright Grp., LLC (D. Colo. 2022). “That section cites to 28 C.F.R. § 77.2 (a) for the definition of “attorney for the government.”

United States v. Singleton (10th Cir. 1998). “April 1999); 28 C.F.R. § 77.2 (a) (1998). This statute strongly suggests that the Congress does not view government attorneys as one with the sovereign, beyond regulation.”

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