Amgen alleged that government lawyers violated Rule 4.2 of the New York Code of Professional Responsibility by communicating with present and former Amgen employees in connection with a grand jury proceeding and False Claims Act qui tam litigation. Amgen sought a protective order to require the government to comply with Rule 4.2, referred to as the “no-contact rule,” which provides that a lawyer may not communicate with the opposing party when it knows it is represented by counsel. The District Court denied the motion, holding that the court did not have jurisdiction to grant Amgen relief, but even if it did, Amgen’s motion failed on the merits because Amgen and the United States cannot be considered “parties” in the same “matter” as required by Rule 4.2 and the government was “authorized by law” to contact Amgen’s employees. See In re Amgen Inc., Case No. 10-MC-0249 (E.D.N.Y. April 6, 2011) (Magistrate Judge’s Report & Recommendation), 2011 WL 2418815 (E.D.N.Y. June 14, 2011) (District Court’s order adopting Magistrate Judge’s Report & Recommendation in its entirety).
Rule 4.2(a) of the New York Code of Professional Responsibility provides:
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.
The key terms in this rule upon which the District Court’s opinion on the merits hinged are “party” and “matter.” The District Court held that the Government was not a “party” in the qui tam “matters” because it had not intervened, stating: “Notwithstanding the fact that in such cases the United States is the real party in interest as a result of the private relator's unilateral decision to file a complaint, the Supreme Court has explicitly held that the United States is not a "party" to a private relator's qui tam action unless and until it decides to intervene. U.S. ex rel. Eisenstein v. City of New York, New York, 129 S. Ct. 2230, 2233 (2009).” The District Court further held that Amgen was not a party to the grand jury “matter”, stating that “there are no ‘parties’ to a grand jury investigation because it is an inquisition, not an adversarial proceeding.” The court further reasoned:
The subject or target of a grand jury proceeding is not in any meaningful sense a "party" to that proceeding: he has no right to be heard, see United States v. Ciambrone, 601 F.2d 616, 622-23 (2d Cir. 1979); he has no right to be present (except as a witness while testifying), see Fed. R. Crim. P. 6(d); and he has no right to obtain access to evidence provided by others or learn of the results of the investigation, see Fed. R. Crim. P. 6(e)-(f). Even more fundamentally, the target of a grand jury investigation has no right to know of its existence; to the contrary, the investigation is meant to proceed entirely in secret. See, e.g., Williams, 504 U.S. at 48; R. Enterprises, Inc., 498 U.S. at 299.
In re Amgen Inc., at p. 27.
Additionally, the District Court held that the Government was “authorized by law” to interview Amgen present and former employees as part of its criminal investigation irrespective of the limitations placed on attorneys in Rule 4.2:
Simply stated, the government, as a sovereign institution, is entitled to solicit information from Amgen's employees about crimes Amgen may have committed, regardless of any professional constraints on the attorneys who comprise part – but only part – of the government's investigative team. Neither Rule 4.2 nor any other rule of professional conduct can alter that fact; only Congress, or the judiciary interpreting the federal law, has the authority to so constrain the government's power to investigate crime.
In re Amgen, Inc., at p. 42.