Justice Dept. Faces Unexpected Roadblocks Due to Ethics Rules

Consider it further proof of the law of unintended consequences.

Aiming to prevent unethical conduct, Congress last year passed a law requiring federal prosecutors to abide by the ethics rules of the state bar where they are conducting investigations.

Instead, the Justice Department says, the move has hampered law enforcement in cases related to public safety--among them the investigation of the maintenance and safety practices of Alaska Airlines.

In documents submitted to the Senate Judiciary Committee by James Robinson, chief of Justice’s criminal division, and Assistant Atty. Gen. Robert Raben, the department has argued that probes like this were “stalled for many months” by the McDade law.

The law blocked FBI agents and Justice Department lawyers from interviewing airline mechanics in a timely fashion for a grand jury investigation of whether Alaska’s maintenance records were falsified in Northern California, the department says. And it reportedly is causing problems for prosecutors looking into complaints from corporate whistle-blowers elsewhere.

While the law seems harmless on its face, California--like many other states--has an ethics provision prohibiting lawyers or government investigators from directly contacting a person who is represented by counsel.

Federal officials say FBI agents who tried to interview workers at the airline’s Oakland maintenance facility were blocked by company lawyers who claimed to represent all airline personnel.

When mechanics then were served with grand jury subpoenas, attorneys lined up by the airline were able to delay their appearances by insisting on grants of immunity from prosecution, which slowed the inquiry by months.

The federal investigation widened after the Jan. 31 crash of an Alaska Airlines jet in the Pacific Ocean that killed all 88 people on board. But FBI agents were similarly impeded from questioning ground mechanics, according to the Justice Department.

“Those interviews that are most often successful--simultaneous interviews of numerous employees--could not be conducted simply because of fear that an ethical rule . . . might result in proceedings against the prosecutor,” said Sen. Patrick J. Leahy (D-Vt.), a veteran Judiciary Committee member who is trying to amend the law.

Alaska Airlines insists it has cooperated with the FBI and denies wrongdoing in its maintenance practices. No criminal charges have been brought. The Federal Aviation Administration recently said it had uncovered “serious breakdowns in record-keeping, documentation and quality assurance” but that the airline has devised an acceptable plan to correct them.

Leahy said the airline case is only one example of the hurdles erected by the McDade law, which was sponsored by Rep. Joseph M. McDade (R-Pa.), who retired from the House last year. McDade had been the target of an eight-year federal investigation into allegations that he accepted $100,000 in gifts and other items from defense contractors and lobbyists.

Cleared by a jury after a 1996 trial, McDade maintained he was the victim of an investigation run amok, damaged personally and politically by prosecutorial intimidation and recklessness.

His sponsorship of the Citizens Protection Act was supported by both the American Bar Assn. and the National Assn. of Criminal Defense Lawyers.

It was approved by Congress without any hearings.

Leahy, in a bipartisan effort with Sen. Orrin G. Hatch (R-Utah), the committee chairman, is trying to amend the McDade law based on Justice’s experience with it.

Justice officials say the statute has made them “reluctant to authorize consensual monitoring”--a body mike worn by an informant, for example--in California and other states for fear that state ethics rules could be interpreted to prohibit this conduct and lead to disciplinary action against department prosecutors.

The law also is making officials reluctant to speak with corporate whistle-blowers without a company lawyer present, which would have a chilling effect.

Hatch would add a proviso to McDade saying federal prosecutors should follow state standards unless they are inconsistent with traditional federal policy, a qualification that would effectively gut the law. It is doubtful whether Congress will amend McDade this year.