Judicial Interpretation of State Ethics Rules Under the McDade Amendment: Do Federal or State Courts Get the Last Word?

Abstract

The McDade Amendment is a federal law that requires federal prosecutors to abide by the state ethics rules of the jurisdiction in which they practice. The Act does not say, however, whether federal or state courts are definitive when it comes to interpreting state ethics rules as they apply to federal prosecutors. Those testifying before Congress raised this issue and noted that the Act left it unresolved. Despite this, Congress did not address this issue in either its legislative history or in the Act itself. No court has addressed this question. The scholarship addresses it only in passing. At this time, both federal and state courts interpret state ethics rules as they apply to federal prosecutors.

As it currently stands, with both court systems interpreting the rules and no determination as to which is definitive, federal prosecutors must comply with both federal and state court interpretations. This is likely to chill federal prosecutors in the exercise of their official duties. More importantly, concurrent interpretation creates unsolvable conflicts when a federal and state court in the same jurisdiction interpret the same rule differently.

This Note explores whether federal or state courts’ interpretations of state ethics rules are definitive as applied to federal prosecutors under the McDade Amendment. It considers the plain text of the Act, its legislative history, and the purposes and policies of the legislation. Ultimately, this Note argues that the legal community should regard state courts’ interpretations as definitive. This Note concludes by proposing a framework for federal courts to defer to state courts’ interpretations of ethics rules as they apply to federal prosecutors.

Keywords: McDade Amendment, 28 U.S.C. § 530B, Federal Prosecutors, Interpretation, Ethics