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Abstract

The first section of this paper analyzes the ethics rule promulgated by the Department of Justice. The DOJ rule governs those circumstances in which federal prosecutors may communicate with individuals known to be represented by counsel, without the consent of such counsel. The second and third sections of this paper discuss the judicial and statutory rejection of the DOJ rule respectively. First, in O'Keefe v. McDonnell Douglas," the U.S. Court of Appeals for the Eighth Circuit reasoned that the DOJ lacked authority to promulgate their ethics rule. As a result of this conclusion, the Eighth Circuit held the DOJ rule invalid. Congress then statutorily rejected the DOJ rule through the McDade Amendment. The final section of this paper discusses the impact of the McDade Amendment on federal prosecutors practicing in Virginia. Specifically, this section examines Virginia's ethics rule regarding contact with represented individuals. This analysis will cover both Virginia's current Code of Professional Responsibility, and Virginia's proposed Rules of Professional Conduct, expected to take effect in January 2000.