The big chill: Negative effects of the McDade Amendment and the conflict between federal statutes

INTRODUCTION

The McDade Amendment,1 which took its name from its chief sponsor in the U.S. House of Representatives,2 was added to the omnibus appropriations measure for fiscal year 1999.3 The McDade Amendment subjects Department of Justice attorneys to the "state laws and rules, and local

federal court rules,4 governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State."5 It has had a deleterious effect on federal criminal prosecutions, and it is no exaggeration to say that this provision is costing lives.

The law review articles that have been written since the passage of the McDade Amendment do not detail the everyday impact of the law, and then omit or understate its real-life implications.6 The articles speculate about the possible results that the Amendment may have. Some commentators have even suggested that the McDade Amendment is the "solution" for uniform application of American Bar Association ("ABA") Model Rule 4.2,7 the "anti-contact rule," which lies at the heart of the Amendment.8 While most commentators agree that the law is problematic,9 these generalities do not fully demonstrate the significant adverse impact that this law is having in slowing down, or bringing to a standstill, federal investigations of serious criminal wrongdoing, nor do they offer remedies other than amending or repealing the McDade Amendment, an attractive but uncertain solution.10