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Betsy Combier

Help Us to Continue to Help Others »
Email: betsy.combier@gmail.com

 
The E-Accountability Foundation announces the

'A for Accountability' Award

to those who are willing to whistleblow unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status. They ask questions that need to be asked, such as "where is the money?" and "Why does it have to be this way?" and they never give up. These people have withstood adversity and have held those who seem not to believe in honesty, integrity and compassion accountable for their actions. The winners of our "A" work to expose wrong-doing not for themselves, but for others - total strangers - for the "Greater Good"of the community and, by their actions, exemplify courage and self-less passion. They are parent advocates. We salute you.

Winners of the "A":

Johnnie Mae Allen
David Possner
Dee Alpert
Joan Klingsberg
Harris Lirtzman
Hipolito Colon
Jim Calantjis
Larry Fisher
The Giraffe Project and Giraffe Heroes' Program
Jimmy Kilpatrick and George Scott
Zach Kopplin
Matthew LaClair
Wangari Maathai
Erich Martel
Steve Orel, in memoriam, Interversity, and The World of Opportunity
Marla Ruzicka, in Memoriam
Nancy Swan
Bob Witanek
Peyton Wolcott
[ More Details » ]
 
Magistrate Judge James Orenstein In Re Amgen Inc., 10-MC-0249 (SLT) (JO) : Court Lacks Power to Enforce 'No Contact' Rule
If the legal framework that confers on prosecutors "broad discretion to enforce the Nation's criminal laws" suffices to "authorize" specific investigative techniques that prosecutors deem appropriate to the performance of their duties—an authorization that trumps the otherwise applicable prohibition in Rule 4.2—it is hard to imagine any technique that cannot be defended on similar grounds provided the prohibition against such a technique is not likewise grounded in the Constitution. But if the government does not intend its argument to reach so far, then I do not understand how the broad enforcement discretion of prosecutors authorizes them to override one non-constitutional prohibition but not others. The authorities the government cites are so non-specific that they "authorize" virtually everything or virtually nothing.
          
In Re Amgen Inc., Putative, Defendant, 10-MC-0249 (SLT) (JO)
U.S. District Court, Eastern District
Legal Profession

new york law journal
06-17-2011
Cite as: In Re Amgen Inc., 10-MC-0249 (SLT) (JO), NYLJ 1202497581318, at *1 (EDNY, Decided April 6, 2011)

Magistrate Judge James Orenstein
Decided: April 6, 2011
REPORT AND RECOMMENDATION

*1
Petitioner Amgen, Inc. ("Amgen") seeks a protective order against the federal government. Specifically, Amgen contends that government lawyers involved in an investigation of the company—both before the grand jury and in connection with qui tam litigation here and elsewhere—have violated Rule 4.2 of the New York Code of Professional Responsibility, also known as the "no-contact" rule, and intend to continue doing so. On that basis, Amgen asks the court to impose on the federal government—rather than on any particular attorneys—prophylactic measures to ensure that future contacts between the government and Amgen employees will conform to the requirements of Rule 4.2. Docket Entry ("DE") 1 ("Motion"). On referral from the Honorable Sandra L. Townes, United States District Judge (to whom the case was assigned in her capacity as the Miscellaneous Judge on duty on the date the motion was filed, pursuant to Local Rule 50.5(a)), I now make this report and, for the reasons set forth below, respectfully recommend that the court dismiss the motion on the ground that it lacks authority either to act on the motion or to grant the requested relief. Alternatively, in the event the court concludes that it has sufficient authority to address the merits, I respectfully recommend that the court deny the motion both because the record does not demonstrate that any attorney has violated the applicable rule and because any violation, if shown, does not warrant the relief Amgen seeks.

I. Background

The instant motion arises from a disagreement about the meaning of the "no-contact" rule of New York's Code of Professional Responsibility, which provides as follows:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

N.Y. Rules of Prof'l Conduct 4.2(a), 22 N.Y.C. R.R. §1200 ("Rule 4.2"). By its terms, Rule 4.2 governs the conduct of all attorneys admitted to practice in the State of New York. It also applies, by virtue of this court's local rules, to all attorneys admitted to practice in this district regardless of admission to the New York bar. See Loc. Civ. R. 1.5(b)(5) (providing for imposition of disciplinary sanctions on "any attorney…found to have engaged in conduct violative of the New York State Rules of Professional Conduct as adopted from time to time by the Appellate Divisions of the State of New York"). Moreover, by operation of federal statutory law, Rule 4.2 also governs the conduct of any attorney for the federal government who "engages in" her "duties" in New York regardless of whether she is or is not admitted to practice in this district or state. See 28 U.S.C. §530B(a) (the "McDade Act").1 In seeking relief, Amgen takes the position that the government, in the course of conducting an investigation of the company's conduct, has been violating Rule 4.2 and will continue to do so unless ordered to stop.

The parties largely agree about the essential facts pertinent to the instant dispute. Amgen, a large corporation in the biotechnology industry, is a named defendant in several lawsuits filed in this district and elsewhere by private individuals pursuant to the qui tam provision of the False Claims Act, 31 U.S.C. §3729 et seq. (the "FCA"). One such lawsuit had been unsealed as of the time Amgen filed the instant motion. United States ex rel. Westmoreland v. Amgen Inc., et al., docket no. 06-10972 (D. Mass.) (minute entry dated Nov. 17, 2009) (reprinted in DE 1-2, Declaration of (Amgen Counsel) Michael Kendall ("Kendall Dec.") Ex. A). The United States has declined to intervene in the litigation, see id., DE 71 (notice of non-intervention by United States), but its counsel has apparently continued to attend conferences in the case and receive notice of court filings. DE 2 (Memorandum of Support) ("Amgen Memo. I") at 4; DE 10 (Memorandum in Opposition) ("USA Memo. I") at 5, n.2 The government has not yet decided whether to intervene in any of the sealed cases pending in this district, and is apparently conducting an investigation in advance of making that decision.3 At the same time, the government is assisting a grand jury investigation in this district into the same matters at issue in the qui tam lawsuits. Amgen Memo. I at 2.

In support of the latter investigation, federal law enforcement agents have served several grand jury subpoenas on employees of Amgen. Kendall Dec. ¶¶3-4. At the same time, agents have sought to interview several current and former Amgen employees—sometimes, but apparently not always, in conjunction with serving a subpoena. Id. ¶¶6, 12-13, 15. Although the government had in the past solicited the assistance of Amgen's counsel in arranging the interviews of Amgen's employees, Kendall Dec. ¶12, the government did not do so with respect to the interviews at issue here. Id. ¶¶13, 15. When Amgen protested, the government expressed its intention to "continue to contact current Amgen employees who we do not know to be represented" by counsel. Kendall Dec. Ex. F (email dated Mar. 5, 2010).4

On April 16, 2010, Amgen filed the instant motion for a protective order as a new, free-standing action in this court. Arguing that the government's conduct in interviewing Amgen employees has violated Rule 4.2, the company asked the court to require the government "to coordinate with Amgen's counsel any contact with current Amgen employees;" and to impose two additional conditions on "any contact between the government and current Amgen employees:" first, that "the government shall not inquire or discuss any communications protected by the attorney-client or work product privilege;" and second, that "the government shall abide by the New York Rules of Professional Conduct." DE 1-1 (proposed order); see also Kendall Dec.; Amgen Memo I. Judge Townes referred the motion to me on April 30, 2010. DE 3. The government responded to the motion on May 11, 2010. DE 10 ("USA Memo I"). I heard oral argument on the motion on May 14, 2010, and received two rounds of supplemental briefing from both Amgen and the government. See DE 7 (minute order); DE 11 ("Amgen Memo II"); DE 12 ("USA Memo II"); DE 14 ("Amgen Memo III"); DE 15 ("USA Memo III").

II. Discussion

A. Jurisdiction: Supervisory Authority

Amgen has not filed a lawsuit against any defendant, nor has it filed a petition or motion pursuant to any legal authority that explicitly creates a right to seek redress in federal court. Nor, as far as the record reveals, is Amgen a defendant in any pertinent pending action in this district.5 In filing its motion in the first instance, the company simply asserted that the government's purported violation of Rule 4.2 suffices to allow this court to order the relief it seeks. See Amgen Memo. I at 3-7 (factual recitation), 7-13 (argument that the government's conduct violates Rule 4.2), 14 (prayer for relief).

Because this is a court of limited jurisdiction, the nature of Amgen's motion requires that the court first determine the source of its authority to act. See, e.g. Alliance For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006) ("a district court must…establish that it has federal constitutional jurisdiction…before deciding a case on the merits") (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998)). Even if Amgen is correct that the attorneys conducting the government's investigation have engaged in conduct that violates New York's no-contact rule, that fact by itself would not warrant judicial intervention. This court has no mandate to supervise the extent to which attorneys admitted to the bar of New York conform their conduct to that state's rules of professional responsibility; that is a matter for state disciplinary authorities. Nor does a judge of this court assigned to a matter in her capacity as Miscellaneous Judge enjoy any general supervisory authority over the conduct of attorneys admitted to practice in this district: such enforcement is delegated under the rules of this court to the court's Committee on Grievances. Compare Loc. Civ. R. 1.5(a) ("the Committee on Grievances…shall have charge of all matters relating to the discipline of attorneys") with Loc. R. 50.5(a) (defining duties of Miscellaneous Judge).6 Certainly neither Rule 4.2 nor the local rule that incorporates it into the code of conduct for attorneys in this district purports to create a private right of action for enforcement. See Rule 4.2; Loc. Civ. R. 1.5(b)(5). Moreover, as a matter of separation of powers, this court has no general mandate to supervise the extra-judicial conduct of federal prosecutors in this district. See Amnesty Intern. USA v. Clapper, --- F.3d ----, 2011 WL 941524, at *9 (2d Cir. Mar. 21, 2011) ("If we…simply allowed the courts to 'oversee legislative or executive action,' that would 'significantly alter the allocation of power away from a democratic form of government.'") (quoting Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009)).7

Amgen thus relies primarily on two asserted bases for invoking this court's jurisdiction. First, it contends that its motion is made to the Miscellaneous Judge only by virtue of the fact that it lacks sufficient information about the sealed qui tam actions to make the request of a judge presiding over one of those cases, and therefore asks the court to exercise the supervisory authority over parties that it claims would empower the latter judges to sanction the government. Amgen Memo. II at 3-7. 8Second, Amgen contends that this court can and should entertain the motion in the exercise of its supervisory authority over grand jury proceedings in this district. Id. at 7-9. As set forth below, I disagree with Amgen on both points.

1. Supervision Of The Sealed Cases

Amgen first argues that this court has authority to enforce Rule 4.2 because the government is conducting its investigation of the sealed qui tam actions under the court's aegis pursuant to the FCA. Critical to this portion of Amgen's argument is the following passage:

The FCA effectively tolls a qui tam plaintiff's obligation to provide service and notice of its Complaint to the defendants and prevents the relator-plaintiff from litigating the case to judgment by creating an ex parte and unilateral quasi-discovery process for the benefit of the United States. 31 U.S.C. §3730(b)(2)-(3). The seal period is not unlimited; the FCA circumscribes this discovery period to 60 days as of right. Id. §3730(b)(2) ("The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.") After this initial period, the United States may only conduct its investigation under seal by invoking the jurisdiction of the supervising court to show why "good cause" exists to allow a motion to extend the seal period. See id. §3730(b)(3). As a result, the FCA specifically contemplates a federal court's supervision and jurisdiction over the United States' reliance on this statutorily created discovery process to conduct its investigation. Based on information and belief, the United States has availed itself of the supervising court's jurisdiction to extend the seal period by motion on multiple occasions.

Amgen Memo. II at 4 (footnote omitted).

The argument, although superficially quite persuasive, is ultimately a sleight-of-hand that conflates the government's pre-existing duty to conduct an investigation of potential violations of the False Claims Act with the sealing of a private relator's complaint during that investigation. Key to the illusion is the omission of any reference to the following provision of the FCA: "The Attorney General diligently shall investigate a violation under section 3729." 31 U.S.C. §3730(a). That directive is entirely independent of the provisions conferring a private right of action on qui tam relators.

The other key element of Amgen's gambit is the assertion that the FCA creates "an ex parte and unilateral quasi-discovery process for the benefit of the United States." Amgen Memo. II at 4 (citing 31 U.S.C. §3730(b)(2)-(3)). The FCA does not confer on the government any discovery rights—"quasi-" or otherwise—that spring into existence upon the filing of a private relator's complaint under seal. Rather, the government has a statutory right, and indeed an obligation, that exists regardless of the pendency of a sealed complaint, to conduct its own investigation. The sealing provision thus does no more than stay the relator's litigation while the government discharges its independent investigative duty, and provides a mechanism for the government to extend the presumptive duration of that stay by informing the court of the need to do so. The statute does not in any way create a judicially-supervised discovery process that begins prior to the government's decision about whether to join the case as a party plaintiff. Thus, to the extent that the court does anything at all while a relator's complaint remains under seal, one thing it assuredly does not do is supervise the government's investigation. It may determine that there is good cause to maintain the seal while the government continues its investigation, but in doing so it does not put its imprimatur on the quality of the investigative techniques.9

Nor does the court in which the relator's complaint is filed under seal supervise the government's investigation by virtue of the government's statutory authority to issue (and seek the enforcement of) a civil investigative demand ("CID"). See Amgen Memo. II at 4-5 (citing 31 U.S.C. §3733). As the statute makes explicit, the enforcement of such demands is not committed to the court in which a relator's complaint may be pending—indeed, there may be no such complaint at all—but rather to the court in the district in which the demand recipient resides, can be found, or transacts business.10 The statute thus divorces judicial enforcement of the government's investigative powers from oversight of the relator's complaint—even where those two functions might occur in the same judicial district, as I am prepared to assume they do here.11

Of course, the argument can be made that a judge of this court supervising a given qui tam action could give her imprimatur to the government's investigative methods, and therefore might supervise its attorneys, because it may be called upon to enforce a CID. Indeed Amgen makes just such an argument by analogy to the rule governing the return of property seized pursuant to a warrant. See Amgen Memo. II at 6-7 (citing Fed. R. Crim. P. 41(g) and cases applying it). The analogy is inapt: the latter rule explicitly empowers a court to "return the property to the movant"—thereby foreclosing any objection that the court lacks authority to act. The FCA confers no comparable right either on the defendant named in a relator's sealed complaint or, more importantly, on the subject of the Attorney General's independent investigation.

The closer analogy is to the court's supervisory authority over grand jury proceedings. In that context, as here, the law explicitly provides that the government may invoke the court's authority to vindicate its rights to secure evidence by means of an investigative demand (a CID here, a subpoena in the grand jury context), but it does not explicitly provide that the court therefore has supervisory authority over all aspects of the manner in which the government conducts its investigation. However, in the grand jury context, as discussed in greater detail below, the Supreme Court has decided that there is no such connection: as a matter of separation of powers, the court's supervisory authority over the conduct of the government's investigation is limited to "those 'few, clear rules which were carefully drafted and approved by the Supreme Court and by Congress to ensure the integrity of the grand jury's functions.'" United States v. Williams, 504 U.S. 36, 46 (1992) (quoting United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Connor, J., concurring)).

I conclude the same rationale applies here as well. The court's authority to enforce a CID under the FCA—an authority that exists regardless of the pendency under seal of a private relator's qui tam action—does not create out of whole cloth supervisory authority over the conduct of an investigation that the Attorney General is required to conduct but that may never result in the government filing an action in this court or any other. Even assuming that there remain any sealed qui tam actions against Amgen in this district, the pendency of such actions does not itself confer on any judge of this court the power to sanction the government (or its individual attorneys) for a violation of the no-contact rule committed in the course of a pre-intervention investigation.

2. Supervision Of The Grand Jury

Amgen argues that because the government's investigation is at least partially in support of a proceeding before a federal grand jury empanelled in this district, the court may grant the relief Amgen seeks in the exercise of its inherent authority to supervise such proceedings. See Amgen Memo. II at 7-13. In making that argument, Amgen does not ignore the Supreme Court's decision in Williams—or at a minimum, it stopped ignoring the case once I inquired about it at oral argument, see Tr. at 13-14—but rather seeks to reconcile its position with the extremely limited vision of such supervisory authority the Court described in that case. Here again, Amgen's argument is unpersuasive.12

In Williams, the district court dismissed an indictment without prejudice because the prosecutor had failed to present materially exculpatory evidence to the grand jury, and the circuit court affirmed. 504 U.S. at 39-40. In his petition for certiorari, the defendant argued that the lower courts' view that the prosecution had an affirmative duty to disclose exculpatory evidence to the grand jury was supported by the courts' supervisory power. Id. at 45. The Supreme Court's response was succinct and unequivocal: "We think not." Id.

The rationale for the Court's decision in Williams was simple: courts deploy supervisory authority "to control their own procedures," id. (emphasis in original), but they cannot use their supervisory power to prescribe standards of prosecutorial conduct before the grand jury "because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside." Id. at 47. Yet that is precisely the sort of power Amgen asks this court to exercise: it seizes on the fact that this court has incorporated New York's formulation of Rule 4.2 into its own local rules to govern the conduct of attorneys in this court and seeks to use that as basis for concluding that the court has also prescribed the same standard for prosecutors appearing before the grand jury the court empanelled. Viewed in that light, the exercise of supervisory authority Amgen proposes is irreconcilable with the decision in Williams.

Amgen quotes selectively from Williams in seeking to avoid the effect of its reasoning. Thus, Amgen acknowledges that the court cannot prescribe standards of prosecutorial conduct before the grand jury in the first instance, but then asserts that it retains "inherent power over the grand jury process 'as a means of enforcing or vindicating legally compelled standards.'" Amgen Memo. II at 8 (quoting Williams, 504 U.S. at 46-47). It then goes on to note that the Supreme Court listed a number of such rules within Federal Rule of Criminal Procedure 6 "by way of example," and observes that the reference to Rule 6 was "not limitative." Id. Having thus widened the scope of the court's supervisory power over the grand jury, it is an easy next step for Amgen to demonstrate that "the no-contact rule is thus of the type of legally compelled standard that…prosecutors must abide by when conducting a grand jury investigation." Id.

In so arguing, Amgen seizes on key phrases from the opinion in Williams and uses them in ways that are plainly at odds with its rationale. Moreover, in suggesting that the examples of "legally compelled standards" the Supreme Court culled from Rule 6 were not "limitative," Amgen ignores the fact that the Court referred only to provisions of Rule 6 and the federal criminal code as rules that the court has supervisory power to vindicate. See 504 U.S. at 46 n.6. In addition, the opinion makes clear that however much broader the category of such standards might be, it is not broad enough to include a state's rules of professional responsibility. To the contrary, the Court explicitly wrote that it was referring only to "those 'few, clear rules which were carefully drafted by this Court and by Congress to ensure the integrity of the grand jury's functions.'" Id. at 46 (emphasis added) (quoting Mechanik, 475 U.S. at 74 (O'Connor J., concurring)). Rule 4.2 was written by neither the Supreme Court nor Congress, and it was not designed to safeguard the integrity of the grand jury's functions. Indeed, as Amgen observes, the supervision it seeks to invoke would have no effect on the functions of the grand jury itself. See Amgen Memo. II at 9.

In the preceding discussion, I have assumed that there is at least some cognizable link between the conduct of which Amgen complains and the proceedings before the grand jury it assumes the court can supervise. But that assumption is hardly warranted. In Williams, the defendant sought to invoke the court's supervisory authority to regulate the content of evidence placed before the grand jury for consideration. Here, the request is even further removed from the grand jury room itself: Amgen seeks to regulate the process by which prosecutors decide whom to consult before searching for evidence that may (or may not) be presented to the grand jury for consideration. Even if Williams had not placed such strict boundaries around the court's supervision of the grand jury, it is hardly apparent that a federal court would have the broad regulatory power over executive branch investigators that Amgen proposes.

Amgen cites two cases for the proposition that "federal courts often exercise supervisory jurisdiction over a grand jury's investigatory process without running afoul of Williams." Amgen Memo. II at 9 (citing New York Times Co. v. Gonzales, 459 F.3d 160, 166 (2d Cir. 2006); In re Grand Jury Investigation, 59 F.3d 17, 19 (2d Cir. 1995)). Neither of the cases it cites is apposite.

The decision in Gonzales involved the existence of jurisdiction under the Declaratory Judgment Act, not supervisory authority, and the opinion in that case did not mention or purport to interpret Williams. Nor did either the district court or the circuit court invoke supervisory authority over the grand jury as the basis for the In re Grand Jury Investigation decision. In that case, two state agencies that had provided documents in response to a grand jury subpoena sought to compel the prosecutors who retained those documents to provide access to them. 59 F.3d at 18. The district court granted the motion, reasoning that since the government had obtained the documents as a result of the court's use of its "inherent supervisory powers over the use of process to compel the presence of witnesses and evidence," it could use that same power to grant relief to the state agencies. Id. at 19. The circuit court affirmed for a different reason: the documents remained the property of the producing agencies, and those agencies therefore had a right of access to them. Id. Thus, to the extent In re Grand Jury Investigation says anything at all about a court's supervisory power, it says no more than what Williams took as a starting point: federal courts have supervisory authority "to control their own procedures." Williams, 504 U.S. at 45.

Williams held that the grand jury is not a part of the judiciary, but rather a separate institution unto itself. The court therefore observed that "it should come as no surprise that it has been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure" and has rejected "all" such invitations to do so, "including some more appealing than" the one Williams presented. Id. at 49-50. I respectfully recommend that this court should likewise reject the proposition that it has the authority to supervise conduct far more peripheral to the grand jury's function than that at issue in Williams.

*1
B. Merits

If the court accepts the preceding analysis, it need not address the merits of Amgen's motion. In the event the court disagrees with some or all of that analysis, I respectfully recommend that it deny the motion on the merits. As explained below, I do so for two reasons based on the text of Rule 4.2. First, the no-contact rule only applies to the conduct at issue here if the United States and Amgen can properly be considered to be "part[ies]" to the same "matter." I conclude that under the established case law of this jurisdiction, they are not. Second, the established case law of this jurisdiction also supports the government's view that its attorneys, in allowing investigative contacts with Amgen's employees are in any event "authorized to do so by law." I address each issue in turn after first discussing the underlying assumptions about the operation of the no-contact rule in this case that I make in Amgen's favor.

1. Preliminary Issues

As a preliminary matter, I note that the following analysis rests on two assumptions, both of which favor Amgen. First, I assume that government attorneys have in fact engaged in communications with Amgen employees within the meaning of the rule. That proposition is by no means obvious: Amgen does not identify any prosecutor who has engaged in a "communication" to which Rule 4.2 applies. Instead, as far as I can discern from the record, Amgen rests its motion on communications between federal law enforcement agents and Amgen employees, and on the theory that such communications are inherently attributable to any prosecutor involved in the investigation. See Kendall Dec. ¶6 (asserting that "government agents" interviewed unspecified Amgen employees); id. ¶10 (asserting that "government investigators" and "government agents" contacted Amgen employees directly); id. ¶13 (asserting that "government agents" contacted a specific Amgen employee); id. ¶15 (asserting that "federal agents tried to interview" one Amgen employee and that "the government tried to" interview two others); see also Tr. at 15-16, 35-36.

Such reasoning overlooks an important fact about law enforcement investigations: while prosecutors and agents can and often do work closely together in such endeavors, not every action by a law enforcement agent can or should be considered conduct of the prosecutor for purposes of assessing the latter's adherence to rules of professional responsibility. See 28 C.F.R. §77.4(f) (prohibiting prosecutors from "directing an investigative agent…to engage in conduct…that would violate the attorney's obligations" but permitting them "in good faith [to provide] legal advice or guidance upon request to an investigative agent").13 Nevertheless the record does support the proposition that the prosecutors here have "ratified" the agents' communications by insisting, in the face of Amgen's complaints, that their agents are free to continue the practice of conducting employee interviews without notice to Amgen's counsel. Under New York's professional responsibility rules, that appears to suffice to establish the existence of communications for which the prosecutors are responsible. See N.Y. Rules of Prof'l Conduct 5.3(b)(1), 22 N.Y.C. R.R. §1200 (a lawyer is responsible for the conduct of a non-lawyer, including an investigator, if she "orders or directs the specific conduct or, with knowledge of the specific conduct, ratifies it").14

Second, I assume that in communicating with Amgen employees, government agents have communicated with Amgen itself. In the context of a corporate client, the New York Court of Appeals has defined a "party" to include "corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation's 'alter egos') or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel." Niesig v. Team I, 76 N.Y.2d 363, 374 (1990); Estes v. City of New York, 2006 WL 2299350, at *1 (E.D.N.Y. Apr. 11, 2006).15

The government contends that this court need not accept as binding the "alter ego" definition because "federal law, not New York State law, controls the interpretation of Rule 4.2 in connection with federal investigations and in matters concerning federal government attorneys in federal courts." USA Memo. II at 2. In so arguing, the government relies primarily on the decision in Grievance Comm. for S. Dist. of New York v. Simels, 48 F.3d 640 (2d Cir. 1995). In Simels, the court unequivocally held that federal courts have an independent interest in defining the no-contact rule for themselves, even where they explicitly incorporate such rules from state law. Id. at 649. But reliance on Simels does not suffice in the wake of the McDade Act: that statute requires a government attorney to conform to a welter of ethics rules, not only the set of rules adopted by the particular federal court in which she practices. See 28 U.S.C. §530B(a) ("An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, 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.").

Thus, while I agree with the government that the version of the no-contact rule adopted by this court need not have as broad a definition as New York State—and even though I believe this court would be well advised to embrace a narrower definition for much the same reason set forth in Simels16—the point is immaterial. The government attorneys involved here manifestly engage in their duties in New York State, and must therefore conform to New York State's version of Rule 4.2 in addition to this court's potentially narrower version of the same rule. Indeed, this appears to be consistent with the interpretation the Justice Department itself embraces where its attorneys are conducting an investigation but the government is not yet a party to any case. See 28 C.F.R. §77.4(c)(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. "Party" And "Matter"

New York's no-contact rule regulates the communications a lawyer may have with a "party" she knows to be represented by "another lawyer in the matter." Rule 4.2.17 Accordingly, even if the instant action is properly before the court, Amgen cannot obtain relief unless it shows that it is a "party" to the same "matter" as the government. As discussed below, I conclude that it has not met that requirement: the

 
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