[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR77.4]
 
[Page 340-341]
 
 TITLE 28--JUDICIAL ADMINISTRATION
 
 CHAPTER I--DEPARTMENT OF JUSTICE (CONTINUED)
 
PART 77_ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT--Table of
Contents
 
Sec. 77.4 Guidance.
 
 (a) Rules of the court before which a case is pending. A government
attorney shall, in all cases, comply with the rules of ethical conduct
of the court before which a particular case is pending.
 
 (b) Inconsistent rules where there is a pending case.
 
 (1) If the rule of the attorney's state of licensure would prohibit
an action that is permissible under the rules of the court before
which a case is pending, the attorney should consider:
 
 (i) Whether the attorney's state of licensure would apply the rule
of the court before which the case is pending, rather than the rule of
the state of licensure;
 
 (ii) Whether the local federal court rule preempts contrary state
rules; and
 
 (iii) Whether application of traditional choice-of-law principles
directs the attorney to comply with a particular rule.
 
 (2) In the process of considering the factors described in paragraph
(b)(1) of this section, the attorney is encouraged to consult with a
supervisor or Professional Responsibility Officer to determine the best
course of conduct.
 
 (c) Choice of rules where there is no pending case.
 
 (1) Where no case is pending, the attorney should generally comply
with the ethical rules of the attorney's state of licensure, unless application
of traditional choice-of-law principles directs the attorney to comply with
the ethical rule of another jurisdiction or court, such as the ethical
rule adopted by the court in which the case is likely to be brought.
 
 (2) In the process of considering the factors described in paragraph
(c)(1) of this section, the attorney is encouraged to consult with a
supervisor or Professional Responsibility Officer to determine the
best course of conduct.
 
 (d) Rules that impose an irreconcilable conflict. If, after
consideration of traditional choice-of-law principles, the attorney
concludes that multiple rules may apply to particular conduct and that
such rules impose irreconcilable obligations on the attorney, the
attorney should consult with a supervisor or Professional Responsibility
Officer to determine the best course of conduct.
 
 (e) Supervisory attorneys. Each attorney, including supervisory
attorneys, must assess his or her ethical obligations with respect to
particular conduct. Department attorneys shall not direct any attorney
to engage in conduct that violates section 530B. A supervisor or other
Department attorney who, in good faith, gives advice or guidance to
another Department attorney about the other attorney's ethical
obligations should not be deemed to violate these rules.
 
 (f) Investigative Agents. A Department attorney shall not direct an
investigative agent acting under the attorney's supervision to engage in
conduct under circumstances that would violate the attorney's
obligations under section 530B. A Department attorney who in good faith
provides legal advice or guidance upon request to an investigative agent
should not be deemed to violate these rules.