It’s not a big group. Only 21 members. But it has national impact. And it recently marked 25 years in business. It’s the Professional Responsibility Advisory Office of the Justice Department to advise the department’s own attorneys. Director Stacy Ludwig joined the Federal Drive with Tom Temin for an updated.

Interview transcript:

Tom Temin Ok. 21 people, that’s barely noticeable in the pantheon of components of a larger agency like the Justice Department. What exactly do you do there?

Stacy Ludwig Well, Tom, I often say we’re small but mighty. We provide professional responsibility advice to Department of Justice attorneys, and we also provide them with training on the professional responsibility rules. We may give advice to department leadership on policy issues, and we also keep track with respect to the changes in rules of professional conduct throughout the country or changes with respect to opinions so that we can weigh in at times when we think that the Department of Justice interests are at issue.

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Tom Temin Right. Recently, I was reading the Professional Responsibility Code for prosecutors, and it’s fairly understandable English actually, for non-lawyers. And so it is adherence to that kind of doctrine that you advise people on.

Stacy Ludwig Well, it’s actually I don’t know precisely what code you’re referring to. There is a rule of professional conduct, Rule 3.8.

Tom Temin That’s the one.

Stacy Ludwig So rule 3.8, for prosecutors, every state or territory except one and the District of Columbia have a similar rule. And then there are a lot of other rules. All the rules, in fact, apply to Department of Justice attorneys.

Tom Temin Right. So it could work that it could come to your attention that someone is not following that rule. Or they could contact an attorney and say, am I doing the right thing here with respect to whatever the rule is?

Stacy Ludwig Yes. And we give prospective advice. So most of the time people call us and say, I would like to take the following action. Please let me know if taking this following action is consistent with the rules of professional conduct.

Tom Temin Got it. And how often does this happen in a given year?

Stacy Ludwig Every day. We have what we call a duty attorney. And so Department of Justice lawyers call us every day. We get sometimes as many as 15 to 20 inquiries a day, sometimes about 2500 of these inquiries a year. And we we say we’re also available 24 seven for emergencies, because, of course, things can happen on the weekend or in the evening. And we try to make ourselves available when Department of Justice attorneys need us.

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Tom Temin Can you give us an example of the type of question that might come up or is there one that comes up regularly?

Stacy Ludwig Well, that I can’t do because one of the main tenants of a department attorney or any attorney is the duty of confidentiality. So that means everything relating to the representation. So the types of inquiries that we get are confidential information of the United States. So I couldn’t tell you specifically the types of inquiries that we get.

Tom Temin Well, so in other words, would it be fair to say then that of all of the tenants written out in that particular rule, you probably get calls related to any of them?

Stacy Ludwig I think that is true. There are few rules which might not necessarily affect us. For example, there are rules with respect to attorneys fees and collecting fees. And because, of course, we are a public agency, we don’t deal with fees, or, for example, there’s another rule dealing with advertising. So those types of rules generally would not be the types of rules on which we would get questions.

Tom Temin But I thought your office only served Justice Department attorneys or do you also serve public attorneys for the states and cities and territories?

Stacy Ludwig No, only the Department of Justice attorneys. What I was trying to say was those were two examples of the rules on which we wouldn’t get questions. You said, would you get questions on all of the rules? And I just pointed out that most of the rules, but there are some that just wouldn’t apply to Department of Justice attorneys.

Tom Temin Well, let’s hope they’re not getting fees anywhere from outside of Texas.

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Stacy Ludwig That would then create an issue. Then we would be advising them on some other rules and other issues that were raised.

Tom Temin We’re speaking with Stacy Ludwig. She’s director of the Professional Responsibility Advisory Office at the Justice Department. I guess there are legal strategies, is one thing that the Justice Department might pursue for a given case. And then there are what you mentioned, the conduct rules or professional conduct. And do they ever cross over or do you have to make a distinction? Do you ever have to say to someone, well, that’s not really professional responsibility question. That’s a legal stratagem question.

Stacy Ludwig Well, I think we focus on the rules of professional conduct. And what we always say is sort of rules of professional conduct are one piece of the pie that lawyers need to consider. As you noted, there are strategies, there are regulations, there are laws, there are department policies. So we advise sort of our piece of the pie. But we also try to note for people that here are perhaps some other areas that are going to affect the question you’re asking us about.

Tom Temin Because it could get a little subtle. For example, it’s a given in the American system that if you have evidence that you’re going to bring in to court, it’s shared with the other side before it’s brought in. So a question would not be, what can I withhold this? Because that would just never be the case. There would be no circumstance under which someone could withhold evidence. And so I guess I’m trying to get this at a different angle. What are some of the elements of professional conduct that apply to Justice Department attorneys without getting into what they ask you about?

Stacy Ludwig So you’re asking me basically what rules might apply to Department of Justice lawyers?

Tom Temin Yeah. What are the most important ones?

Stacy Ludwig Well, I think they’re all important, but a few rules was one that you mentioned earlier, was there is a specific rule that applies to prosecutors. So that would be any prosecutor. And there actually is a rule of professional conduct which governs disclosure of information to the defense. There’s another rule that governs contact with represented persons. There are also the rules that I think private lawyers deal with, but Department of Justice lawyers deal with rules with respect to conflicts of interest rules that I alluded to earlier, rule on the duty of confidentiality. There’s also rules with respect to disclosing information to the press on social media, etc.. And there are some restrictions with respect to that. This rule with respect to supervising others, making sure that others under your supervision understand and follow the rules. There’s rules, of course, on your interactions with the court. So you have a duty of candor to the tribunal, both in what you as a lawyer say to the Court. But in terms of the type of evidence that you present to the court, there are rules with respect to talking with the court. You can’t talk with the court if you’re in a case. You should not have an ex parte contact with the court. The contact should be when the other side, the other party is included or you shouldn’t have ex parte contact with jurors, for example. Those are some general rules that I think apply to litigators, but also Department of Justice attorneys, because many Department of Justice attorneys are also litigators.

Tom Temin Right. And there is that side, and there’s also the civil side and the appellate side. Do they have separate rules from the ones we are talking about, or the same set of rules apply to everybody.

Stacy Ludwig Well the same set of rules, but bear in mind that they are the state rules of professional conduct or the D.C. rules of professional conduct or the territories have rules of professional conduct. So we always have to do a choice of law analysis to figure out which rules actually apply. So there’s sort of some commonalities among the rules. I talked generally before about the different concepts, but then there might be some nuances or differences if you’re applying the rules of New York versus California versus the District of Columbia.

Tom Temin And are you the final judge and arbiter of these questions, or can an attorney say, well, I want another opinion on whether this is adhering to professional conduct?

Stacy Ludwig Well, we provide advice so that an Department of Attorneys are required to follow our advice. They could go to their own supervisor and evaluate whether or not what they think about the advice that we provided. But I will say, I feel that Department of Justice attorneys feel confident in the advice that we’ve provided. We received thousands of inquiries. So I think that means that there’s a lot of confidence in the advice we give. And I venture to say that I think a lot of Department of Justice attorneys follow our advice.

Tom Temin Well, having talked to you for ten minutes so far, I think if you gave me advice, I’d put it in my pocket and stick with it, actually, to be honest with you. And how did you come to this type of work? You must be an attorney, I’m presuming, to begin with.

Stacy Ludwig Yes. Well, originally I was an assistant U.S. attorney in the District of Columbia, and there was an opening at the Professional Responsibility Advisory Office. And I’ve always been someone who’s been interested in rules. I’m a rule follower. I guess I’ve always been someone who wants to do the right thing. So the job seemed very interesting, but also to fit very well with my beliefs. So it was very interesting. I was originally a line attorney, and then fortunately had the opportunity to be the deputy director and the director.

Tom Temin Wow. And in doing this type of work have trends or concepts. What have you learned from doing it other than you can read the rules and understand them?

Stacy Ludwig I think it’s actually a fascinating area of the law because I have done it for many years and I’m always learning. The rules are written generally, and they’re also written with private lawyers in mind. So many times when we are applying the rules in the unique situations presented by government work, it really is a challenging situation, but also a rewarding situation to try to take these rules and apply them in a way that works in a different context and in a way that we think that Department of Justice are carrying out their duties, but doing it with the highest standards of professionalism.

Tom Temin And a final question. There are a million TV shows over the years showing lawyers and federal attorneys. Have you ever seen any of them? And do any of them say stand out as yeah, they got it pretty right on that one.

Stacy Ludwig Well, to be honest with you, I often don’t watch those shows, because sometimes I do see them and I see that they’re replete with professional responsibility violations. So I think maybe those lawyers could use a little advice from an ethics lawyer.

Tom Temin So you could have a second career advising Hollywood.

Stacy Ludwig Well you never know.

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