Ethics

US District Court Judge David Trager, who died yesterday at age 73, was US Attorney in the EDNY when the 2nd Cir., per Judge Irving Kaufman, issued an opinion  and then thrice revised opinions in the Hammad case. Essentially, Hammad said federal prosecutors in NY are bound by the anti-contact rule in the state. It declined to suppress the defendant's admissions, however, on the ground that the rule was previously unclear. (That didn't stop Kaufman from calling the prosecutor's conduct 'egregious' in one of the intermediate opinions. How can conduct be egregious if it was not previously clear that it was even forbidden?)

Long story here but Hammad eventually and indirectly led to the McDade amendment, which says that federal lawyers are bound by the ethics rules of states in which they practice.

David and other US Attorneys in NY were worried about the reach of Hammad and its implications for undercover operations, leading to various motions for reconsideration. And indeed the circuit did cut back but not on the essential holding. 

David got a chance to limit the reach of Hammad, to some extent, when by designation he sat on the circuit in In re Simels. The court, Trager writing, distinguished Hammad and declined to read the NY anti-contact rule to permit federal discipline of Robert Simels for contacting a represented person who was on the verge of being charged along with Simels' own client. So David got a sort of revenge, though that's probably not the right word. I suspect though that the opportunity gave him much satisfaction.

Hammad is still good law and occasionally cited, but very often distinguished or disagreed with. The opinion went through three revisions. Only the final one is available so far as I know. Kaufman cut back on the opinion's language repeatedly. I suspect he did so to avoid a rehearing en banc. 

And while we're at it: Simels, a very (make that VERY) successful criminal defense lawyer, was convicted last year in the EDNY for obstruction-related crimes -- Trager was not the judge --  and sentenced to a long prison term. Hammad did not figure in his prosecution.