## Facts

- Federal prosecutors investigated Hammad before indictment and directed an informant (Hammad’s cousin) to obtain incriminating statements through recorded conversations.
- At the time of the informant’s approach, Hammad was known to be represented by counsel in the matter under investigation.
- To facilitate contact, the prosecutor supplied the informant with a grand jury subpoena that appeared to require the informant to appear, which the informant displayed to Hammad to prompt discussion.
- Hammad moved to suppress the recordings, arguing the prosecutor violated DR 7-104(A)(1), the attorney “no-contact” rule.
- The district court found a DR 7-104(A)(1) violation and suppressed the recordings as a sanction.
- The government appealed the suppression order.

## Issues

1. Whether DR 7-104(A)(1) applies to federal prosecutors conducting criminal investigations, including pre-indictment investigations using informants.
2. Whether a prosecutor “causes” prohibited communication with a represented person by directing an informant to elicit statements about the subject of the representation.
3. Whether the “authorized by law” exception generally permits undercover communications with represented suspects during legitimate investigations.
4. Whether using a misleading grand jury subpoena as an investigative device exceeds any “authorized by law” allowance and violates DR 7-104(A)(1).
5. Whether suppression of the recordings is an appropriate remedy for the ethical violation found.

## Decision

- The Second Circuit held that DR 7-104(A)(1) applies to federal prosecutors and can reach communications carried out through informants at the prosecutor’s direction.
- The court interpreted “authorized by law” to generally permit legitimate pre-indictment undercover investigations, so undercover contact with represented suspects is not automatically improper.
- The court concluded the prosecutor’s use of a misleading grand jury subpoena as a prop to induce contact exceeded the scope of lawful authorization and violated DR 7-104(A)(1).
- The court held the district court abused its discretion by suppressing the recordings on these facts.
- The suppression order was reversed and the case was remanded, with notice that future similar violations could warrant suppression or other sanctions.

## Legal Principles

- Prosecutors are subject to applicable attorney professional-conduct rules, including the no-contact rule prohibiting communications with a represented person about the matter without counsel’s consent, unless authorized by law.
- A prosecutor may violate the no-contact rule by directing or using an intermediary to communicate with a represented person about the subject of the representation.
- The “authorized by law” exception generally covers legitimate pre-indictment undercover investigative contacts, including informant communications, even where the target is represented.
- Investigative tactics that misuse or simulate formal legal compulsion (such as a misleading subpoena used to induce cooperation and bypass counsel) can exceed lawful authorization and constitute an ethical violation.
- Suppression is a discretionary and exceptional remedy for ethical violations; courts may consider the novelty of the application and notice to prosecutors in assessing whether exclusion is justified.

## Conclusion

The Second Circuit recognized that the no-contact rule applies to prosecutors and can reach informant-directed communications with represented suspects, while preserving routine undercover work as generally authorized by law; however, employing a misleading subpoena to prompt contact crossed the ethical line, and suppression was reversed as too severe on these facts.


United States v. Hammad, 858 F.2d 834 (2d Cir. 1988)