While Harper was awaiting arraignment before a Magistrate Judge, he came across Arrington in the holding pens. Later that day, Harper again encountered Arrington, along with Brooks Davis and Wayne Davis, all of whom were being held at the Manhattan Correctional Center ("MCC"). What exactly was said during these encounters is uncertain, except that Brooks Davis told Harper that he would be sending his lawyer to speak with him.2 Sometime that same afternoon, Brooks Davis telephoned Simels from the MCC and told him to interview Harper because Harper might have information relevant to Davis' defense. Harper's name had been kept confidential and was not on the government's list of potential witnesses in the drug conspiracy trial.

The next morning, April 12, Simels went to interview Harper, introducing himself as Brooks Davis' attorney. During the interview, Simels learned about the circumstances surrounding Harper's arrest and incarceration and that the court had appointed counsel for him, although Harper was unable to recall the name of the attorney. Harper also stated that he and his family were in the process of retaining private counsel. Simels inquired about the shooting and the government's interrogation of Harper, and had an affidavit prepared which Harper signed the same day.3 At no point during this exchange did Simels make any attempt to contact Harper's attorney.

The Acting United States Attorney for the Southern District of New York reported Simels' conduct to the Committee on Grievances, which determined that the conduct merited prosecution. Judge Griesa, who was also the Chairman of the Committee, appointed Special Counsel to prosecute the charges and named a three-member Panel, headed by retired Chief Judge Fuld of the New York Court of Appeals, to hear evidence and report to the Committee. The "Second Count" of the Statement of Disciplinary Charges alleged a violation of DR 7-104(A)(1) arising out of Simels' contact with Harper.4

On April 11, 1991, the Panel submitted its Findings of Fact and Conclusions of Law recommending that all charges against Simels be dismissed. With respect to the DR 7-104(A)(1) violation, the Panel interpreted the Rule as:

requir[ing] an exceedingly narrow definition of "party" if the prohibitions of DR 7-104 are to be involved.

. . . . .

It is our view ... that DR 7-104 does not bar an attorney from communicating with one scheduled to appear as a witness or with his client's codefendant, even though the one to be interviewed is represented by counsel.

Panel's Findings of Fact and Conclusions of Law at 13, 16.

On December 8, 1993, the Committee issued its Opinion and Order accepting the Panel's Findings of Fact, but reversing the Panel's Conclusions of Law with respect to that portion of the "Second Count" which charged a violation of DR 7-104(A)(1). Focusing on the attempted murder of Diggins (the government witness in the drug conspiracy case) as the pertinent "matter," the Committee concluded that because Davis and Harper were facing or were about to face identical charges,

[t]he word "party" is, on the facts presented here, broad enough to encompass the relationship between Harper and Simels' client, Brooks Davis. At the time he interviewed Harper, Simels knew that the prosecutor either had filed, or in the near future would file, against Simels' client charges identical to those on which Harper was being held. While Harper and Davis may not have been named in the same accusatory instrument, they were charged with the same crime.

There can be no doubt that had Brooks Davis and Harper been charged in the same complaint or indictment, they would be considered "parties" on even the most technical construction of that term. Black's Law Dictionary (Fifth Edition) (p. 1010)

. . . . .

Simels, slip op. at 4-5. The Committee further found that because the affidavit Simels had procured from Harper could have been used against Harper, "the interests of Harper and Brooks Davis were 'adverse' at the time [Simels] took the statement." Id. at 7. After concluding that Simels had violated DR 7-104(A)(1), the Committee imposed the sanction of censure. Id. at 8.5 This appeal followed.

This appeal requires a determination of whether Davis and Harper were "part[ies]" in the same "matter" such that, before talking to Harper, Simels should have sought permission from Harper's attorney after learning that counsel had been appointed for Harper. The Committee's interpretation of DR 7-104(A)(1) as applied to federal criminal proceedings raises important issues of policy affecting federal law enforcement and the ability of defense counsel to provide the effective assistance and zealous representation that the Sixth Amendment and DR 7-101, respectively, guarantee to criminal defendants. We believe that the Committee's interpretation may well result in broad and unwarranted changes in traditional law enforcement and defense practices and procedures. If such substantial modifications are to be made, they should occur only after careful consideration by the representative branches of the federal government. The conceded power of federal district courts to supervise the conduct of attorneys should not be used as a means to substantially alter federal criminal law practice.6 Although it may well be that DR 7-104(A)(1) can reasonably be read, as the Committee did, to find that the word "party" is broad enough to encompass the relationship between Davis and Harper, as we view the issues, a narrow interpretation of the Rule is the wiser course for the federal courts to follow. Accordingly, we disagree with the Committee's expansive interpretation of DR 7-104(A)(1) and, therefore, reverse. In interviewing Harper, Simels was interviewing a potential witness in the drug conspiracy case and a potential codefendant of his client in a related but distinct matter, the attempted murder of Diggins. In neither case was Harper a "party" in the same "matter."

A. This Court's Role When Interpreting a Disciplinary Rule

The decision whether to impose disciplinary sanctions on an attorney is usually subject to an abuse-of-discretion standard of review. In re Grievance Committee, 847 F.2d 57, 61 (2d Cir.1988). As both parties acknowledge, however, where the issue presented for our review is the Committee's interpretation of a particular disciplinary rule, Circuit review is plenary. Id. ("Because resolution of such questions leaves little leeway for the exercise of discretion, appellate review in those cases is plenary.") (citations omitted). Accordingly, whether Davis and Harper were parties in the same matter under DR 7-104(A)(1) is subject to de novo review.

Before beginning our analysis, two important caveats concerning the role of this Court in resolving the issue should be noted. First, in determining the scope of a particular disciplinary rule, we recognize that the rules of ethics are not statutes, but standards of conduct. Accordingly, although "plain meaning" or "intent of the drafters" interpretative standards are appropriate when the disciplinary rule in question is unambiguous, where, as in the case of DR 7-104(A)(1), neither the plain meaning nor the intent of the drafters can be discerned from the face of the rule, matters of policy are appropriately considered in determining its scope. Armstrong v. McAlpin, 625 F.2d 433, 444 n. 22 (2d Cir.1980) (en banc ) (plain meaning analysis inappropriate where disciplinary rule is ambiguous), vacated on other grounds, 449 U.S. 1106, 101 S. Ct. 911, 66 L. Ed. 2d 835 (1981); J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1359-60 (2d Cir.1975) (Gurfein, J., concurring) (matters of policy can inform a court's interpretation of a disciplinary rule); see also Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030 (1990) (in determining scope of "party" in DR 7-104(A)(1), court should consider competing policy issues and not be bound by "plain meaning" analysis). Considering matters of policy is particularly important in this case because how DR 7-104(A)(1) is interpreted today will directly affect the way defense attorneys as well as prosecutors litigating in the federal courts of this Circuit conduct themselves. This, in turn, could have a dramatic impact on both the outer limits of a defendant's right to the effective assistance of counsel and the public's interest in effective law enforcement.

Second, in considering the various policy issues influenced by the Rule, well-established principles of federalism require that federal courts not be bound by either the interpretations of state courts or opinions of various bar association committees. Both parties rely on those authorities to support their arguments for either a strict or broad interpretation of the Rule. Although these precedents are no doubt helpful, they should be relied upon only to the extent that they are compatible with federal law and policy. See Baylson v. Disciplinary Board, 975 F.2d 102 (3d Cir.1992) (invalidating state ethics rule that attempted to interfere with federal grand jury practice), cert. denied, --- U.S. ----, 113 S. Ct. 1578, 123 L. Ed. 2d 147 (1993); Almond v. United States District Court, 852 F. Supp. 78, 87 (D.R.I.1994) (same). Indeed, requiring a federal court to follow the various and often conflicting state court and bar association interpretations of a disciplinary rule, interpretations that may also contravene important federal policy concerns, threatens to balkanize federal law. See Cramton & Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules, 53 U.Pitt.L.Rev. 291, 315 (1992) (discussing the increasing divergence in states' interpretations of DR 7-104(A)(1) and its threat to federal uniformity); see also Rand v. Monsanto Co., 926 F.2d 596, 600 (7th Cir.1991) (permitting state ethics rule on champerty to trump Federal Rule of Civil Procedure 23 would "balkanize litigation"). If a particular interpretation of a state ethics rule is inconsistent with or antithetical to federal interests, a federal court interpreting that rule must do so in a way that balances the varying federal interests at stake. See generally Resolution Trust Corp. v. Bright, 6 F.3d 336, 341 (5th Cir.1993) (although Texas disciplinary rule applies to motion to disqualify in federal court, "such a motion must be determined by standards developed under federal law"); Rand, 926 F.2d at 600 (Federal Rule of Civil Procedure 23 trumps state ethics rules on champerty); Kolibash v. Committee on Legal Ethics, 872 F.2d 571, 575 (4th Cir.1989) (proper for federal prosecutor to remove state disciplinary proceeding to federal court because although "[r]egulation of the legal profession admittedly implicates significant state interests, ... the federal interest in protecting federal officials in the performance of their federal duties is paramount.").

Thus, the interpretation of DR 7-104(A)(1) as it applies to federal criminal law practice should be and is a matter of federal law. In re Snyder, 472 U.S. 634, 645 n. 6, 105 S. Ct. 2874, 2881 n. 6, 86 L. Ed. 2d 504 (1985) (because "[f]ederal courts admit and suspend attorneys as an exercise of their inherent power[,] the standards imposed are a matter of federal law."); Cord v. Smith, 338 F.2d 516, 524 (9th Cir.1964) ("When an attorney appears before a federal court, he is acting as an officer of that court, and it is that court which must judge his conduct."); see also United States v. Hammad, 858 F.2d 834, 837 (2d Cir.1988), cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 154 (1990). It follows, therefore, that "[a] federal court is not bound by New York's view of what constitutes ethical professional conduct." County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1407, 1413 (E.D.N.Y.1989), aff'd on other grounds, 907 F.2d 1295 (2d Cir.1990); see Cord, 338 F.2d at 524 (declining to follow California case law in applying a disciplinary rule in a diversity-contract action governed by California law); Figueroa-Olmo v. Westinghouse Electric Corp., 616 F. Supp. 1439, 1449-50 (D.P.R.1985) (refusing to follow Puerto Rico Supreme Court precedent on ethical rule despite local rule adopting Puerto Rico's rules of ethics as rules for federal court because "the primary responsibility for supervising the conduct of attorneys who practice before this court lies precisely with this forum."); Black v. State of Missouri, 492 F. Supp. 848, 874-75 (W.D.Mo.1980) (declining to follow Missouri Bar Advisory Committee's opinion-letter addressing the specific ethical issue that arose in the litigation). As we are not bound by New York's (or any state court's) view of the Code, and for the reasons discussed below, we decline to follow the ethics opinions cited by the Committee, see, e.g., New York County Lawyer's Ass'n Comm. on Professional Ethics, Op. 676 (1990), and the state cases cited by both parties. Compare In re Thompson, 492 A.2d 866 (D.C.1985) and In re Mahoney, 437 N.E.2d 49 (Ind.1982) (cited by Special Counsel) with People v. Nance, 100 Ill.App.3d 1117, 56 Ill. Dec. 435, 427 N.E.2d 630 (1981) (cited by Simels). With these caveats in mind, we turn to the matter at hand.

B. The History of DR 7-104(A)(1) and Second Circuit Precedent Interpreting DR 7-104(A)(1) in Criminal Cases

DR 7-104 ("Communicating with One of Adverse Interest")7 provides:

A. During the course of his representation of a client a lawyer shall not:

1. Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

. . . . .

DR 7-104(A)(1), which has existed since 1908, presumably protects "a defendant from the danger of being tricked into giving his case away by opposing counsel's artfully crafted questions." United States v. Jamil, 707 F.2d 638, 646 (2d Cir.1983), citing United States v. Massiah, 307 F.2d 62, 66 (2d Cir.1962), rev'd on other grounds, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). This provision has also been said to further other interests, such as "protecting the client from disclosing privileged information or from being subject to unjust pressures; helping settle disputes by channeling them through dispassionate experts; rescuing lawyers from a painful conflict between their duty to advance their clients' interests and their duty not to overreach an unprotected opposing party; and providing parties with the rule that most would choose to follow anyway." Leubsdorf, Communicating with Another Lawyer's Client: The Lawyer's Veto and the Client's Interest, 127 U.Penn.L.Rev. 683, 686-87 (1979) (footnotes omitted). It is evident, therefore, that DR 7-104(A)(1), both in origin and in scope, is primarily a rule of professional courtesy. If it were more than that, DR 7-104(A)(1) also would have provided protection for unrepresented parties, as does DR 7-104(A)(2), which forbids an attorney from giving legal advice to an unrepresented person whose interests might be adverse to those of the attorney's client.

Although it is now recognized that the Rule applies in the criminal context, see generally Hammad, 858 F.2d at 837-38; Jamil, 707 F.2d at 645, it was not until more than a half a century after its promulgation that defense attorneys began to urge that the Rule should apply in criminal proceedings and that DR 7-104(A)(1) should be used "to expand a suspect's right to counsel during custodial interrogations." Moore, Intra-Professional Warfare Between Prosecutors and Defense Attorneys: A Plea for an End to the Current Hostilities, 53 U.Pitt.L.Rev. 515, 520-21 (1992). Even then, it was not until 1983 that this Court affirmatively stated that the Rule applies in criminal cases. Jamil, 707 F.2d at 645. More significantly, perhaps, not only is this our first opportunity to pass on the scope of the Rule as it applies to federal criminal law in the context of a disciplinary proceeding, it is also our first occasion to pass directly on the applicability of the Rule to a defense attorney. See generally United States v. De Villio, 983 F.2d 1185 (2d Cir.1993); United States v. Schwimmer, 882 F.2d 22 (2d Cir.1989), cert. denied, 493 U.S. 1071, 110 S. Ct. 1114, 107 L. Ed. 2d 1021 (1990); Hammad, 858 F.2d at 834; United States v. Pinto, 850 F.2d 927 (2d Cir.), cert. denied, 488 U.S. 867, 109 S. Ct. 174, 102 L. Ed. 2d 143 (1988); United States v. Foley, 735 F.2d 45 (2d Cir.1984), cert. denied, 469 U.S. 1161, 105 S. Ct. 915, 83 L. Ed. 2d 928 (1985); Jamil, 707 F.2d at 638; United States v. Vasquez, 675 F.2d 16 (2d Cir.1982) (per curiam ) (all considering the applicability of DR 7-104(A)(1) to federal prosecutors and their agents in the context of a criminal trial). But see United States v. Dennis, 843 F.2d 652 (2d Cir.1988) (considering but not deciding whether trial court might have excluded certain testimony because defense attorney may have violated DR 7-104(A)(1) by talking to client's codefendant without codefendant's counsel's permission).

A review of the relatively brief history of DR 7-104(A)(1) in criminal cases in this Circuit reveals that in the context of applying the Rule to federal prosecutors, we have not been asked to examine the precise scope of the terms "adverse interest," "party" or "matter." In Massiah, 307 F.2d at 66, it was assumed without deciding that, if DR 7-104(A)(1) applied to criminal investigations, it would not bar post-indictment contacts with represented defendants by investigatory agencies not acting as the prosecutor's alter-ego. Then in Vasquez, 675 F.2d at 16, it was held that "[e]ven assuming [DR 7-104(A)(1) ] to be applicable to a criminal investigation," it did not prohibit pre-indictment conversations between the represented target of a criminal investigation and a government informant. Such a rule "would simply enable criminal suspects, by retaining counsel, to hamper the government's conduct of legitimate investigations." Id. at 17. There was no discussion of how the Rule might be interpreted to be applicable to criminal investigations. One year later, in Jamil, 707 F.2d at 638, DR 7-104(A)(1) was affirmatively applied to criminal cases, but the court once again declined to find a violation of the Rule by a prosecutor in a non-custodial, pre-indictment setting where the agents who recorded the statements were not acting as the "alter ego" of the prosecution. Therefore, there was no need to reach the question whether the Rule would have been violated and, if so, whether suppression would have been appropriate. Id. at 646.

In Foley, 735 F.2d at 45, this Court had occasion to address the applicability of the Rule to the practice of federal prosecutors in the Southern District interviewing uncounselled, potential defendants just prior to their arraignment. This Court was particularly concerned about ethical impropriety in Foley because counsel had been appointed for the defendant just prior to arraignment, and counsel specifically had requested that the prosecutor not interview the defendant. Notwithstanding this request, the prosecutor proceeded to interview the defendant for two hours. Nevertheless, this Court declined to find the practice unlawful. Id. at 49.

Four years later in Dennis, 843 F.2d at 652, without deciding the issue, this Court considered whether a defense attorney may have violated DR 7-104(A)(1) in facts somewhat similar to the case at bar. In Dennis, the defendant's attorney had a conversation with a former codefendant, Pilgrim, who continued to be represented by his court-appointed attorney while he testified for the government (the charges against him had been dropped). When the trial court forbade the defense attorney from eliciting the substance of that conversation during his cross-examination of Pilgrim, this Court, in attempting to discern the rationale for the trial court's decision, noted:

The third basis on which the court may have ruled was the Government's objection, as seconded by Pilgrim's appointed counsel, that Gerace's [Dennis' attorney] communication with his client's codefendant constituted an interference with the codefendant's attorney/client relationship. If Gerace violated ethical standards by communicating with a party he knew was represented by another lawyer [DR 7-104(A)(1) ] ... the sanction ... should be disciplinary action....

Dennis, 843 F.2d at 657. This Court did not, however, reach the issue of a DR 7-104(A)(1) violation under those facts.

In Pinto, 850 F.2d at 927, decided the same year, the applicability of DR 7-104(A)(1) to a prosecutor's contact with a convicted defendant, Mecolta, whom the defense intended to call as a witness, was considered. Mecolta had been convicted for acts giving rise to the prosecution of Pinto. At the prosecutor's urging, the court assigned counsel for Mecolta to safeguard his Fifth Amendment rights. Although the prosecutor had told Mecolta's attorney that any additional criminal conduct revealed during Mecolta's testimony not covered by his conviction would lead to a new indictment, the prosecutor, without notifying Mecolta's attorney, had her case agents interview Mecolta to determine what his trial testimony might be. Rejecting the prosecutor's argument that Mecolta was "only a witness," the Court noted that, in light of the prosecutor's warning to Mecolta's attorney, "[Mecolta] was also a potential defendant who was likely to reveal information that might compromise his fifth amendment rights." Id. at 935 (emphasis added). However, this Court went on to hold that "we need not, and do not, find a violation of DR 7-104(A)(1) in this case." Id.

It was against this backdrop of precedent that, in Hammad, 858 F.2d at 834, this Court considered whether a prosecutor had violated DR 7-104(A)(1) and, if so, whether suppression of the resulting statements was the appropriate remedy. In Hammad, a federal prosecutor, through an IRS agent, provided a government informant with a sham grand jury subpoena. The informant showed the subpoena to the target of the government investigation, who was represented by counsel in an unrelated, ongoing civil investigation into medicaid fraud, and induced several conversations about the underlying crimes, all of which were recorded. The resulting indictment was based largely on the recorded conversations. Reversing the trial court's suppression of the recordings, this Court nevertheless found a violation of DR 7104(A)(1). Writing for the Court, Judge Kaufman rejected the government's contention that the Rule was inapplicable to criminal investigations, and found unpersuasive an interpretation that would link the Rule's applicability to the time of indictment. The use of a sham grand jury subpoena to elicit statements from a represented defendant prior to indictment was found not to fall within DR 7-104(A)(1)'s "authorized by law" exception:

In the present case, the prosecutor issued a subpoena for the informant, not to secure his attendance before the grand jury, but to create a pretense that might help the informant elicit admissions from a represented suspect. Though we have no occasion to consider the use of this technique in relation to unrepresented suspects, see United States v. Martino, 825 F.2d 754 (3d Cir.1987), we believe that use of the technique under the circumstances of this case contributed to the informant's becoming the alter ego of the prosecutor. Consequently, the informant was engaging in communications proscribed by DR 7-104(A)(1).1

1. See also ABA Standards Relating to the Administration of Criminal Justice, Standard 3-3.1(d) ("It is unprofessional conduct for a prosecutor to secure the attendance of persons for interviews by use of any communication which has the appearance or color of a subpoena or similar judicial process unless the prosecutor is authorized by law to do so.").