Position
Paper to N.J. Supreme Court Committee
As
former President, Mr. Silber set forth the ACDL-NJ
position to the N.J. Supreme Court that federal prosecutors
must follow local ethical rules and not contact directly
witnesses who are represented by lawyers
SPECIAL SUPREME COURT COMMITTEE ON RPC 4.2
Joseph J. Barraco, Esq.
Chief of Criminal Court Services
C/O ADMINISTRATIVE OFFICES OF COURTS
Hughes Justice Complex, CN-982
Trenton, New Jersey
08625
IN RE: ETHICS OPINION 668
HEARINGS
ACDL-NJ POSITION
Dear Committee Members:
Memorializing the ACDL-NJ's
position, which includes some response to points made by subsequent speakers,
will be, I hope, helpful to the Committee in its deliberations. Additionally, the court's rationale in United States v. Hammad, 858 F.2d 834
(2d Cir. 1988), and United States v.
Lopez, 765 F.Supp. 1433 (N.D.Cal. 1991), rev'd on other grounds, 4 F.3d 1455 (9th Cir. 1993)[1]
(the two cases referred to by First Assistant United States Attorney Paul
Fishman), and a summary of Judge Weinstein's excellent analysis in United States v. Jamil, 546 F.Supp. 646
(E.D.N.Y. 1982), rev'd on other grounds,
707 F.2d 638 (2d Cir. 1983), illuminates the appropriate principles which this
rule should vindicate.
The Purpose Of The Rule Is To Judicially Facilitate Effective
Representation Of Counsel.
R.P.C. 4.2 is actually a supplement to the Sixth Amendment right to counsel and
gives even greater protection to a client's effective representation by
insuring that counsel for adverse parties communicate with his own counsel and
not with him directly. Judge Weinstein
eloquently stated the underlying policy of this venerable old rule:
The rule is crafted to protect a client from
squandering a possible claim or defense and to insure against disclosure of
privileged information.
United States
v. Jamil, supra 546 F.Supp. at 654.
The ethical rule and the
Sixth Amendment right to effective assistance of counsel serve
"separate", albeit congruent purposes.
The Constitution defines only the `minimal
historic safeguards' which defendants must receive rather than the outer bounds
of those who may afford them. [Citation
omitted.] In other words, the
Constitution prescribes a floor below which protections may not fall, rather
than a ceiling beyond which they may not rise.
The Model Code of Professional Responsibility, on the other hand,
encompasses the attorney's duty `to maintain the highest standards of ethical
conduct.' [Citation omitted.] The Code is designed to safeguard the
integrity of the profession and preserve public confidence in our system of
justice. It not only delineates an
attorney's duties to the court, but defines his relationship with his client
and adverse parties. Hence, the Code
secures protections not contemplated by the Constitution.
United States
v. Hammad,
supra, 858 F.2d at 839.
Thus, R.P.C. 4.2
is even more important in criminal cases than in the civil context. As Judge Patel said:
Indeed, it can be argued that the prohibition
against communication with a represented individual is even more important in
the criminal context than in civil cases.
A prosecutor ` has more direct
power over the lives, property and reputations of those in [his] jurisdiction
than anyone else in this nation.
[Footnote omitted.] In light of
the prosecutor's tremendous power and the fundamental individual rights at
stake in criminal prosecution, `"the character, quality, and efficiency of
the whole [criminal justice] system is shaped in great measure by the manner in
which the prosecutor exercises his or her broad discretionary power."'
It is for this very reason that ABA Prosecution
Function Standard 3-1.1(d) makes it the duty of every prosecutor `to know and
be guided by the standards of professional conduct as defined in the codes and
canons of the legal profession...'
United States
v. Lopez, supra, 765 F.Supp. at 1449. (Ellipses in original).
Who Is A "Represented Party"?
At issue here is a
corporation's right to be effectively represented and to be free from the
unfairness of having the adversary's counsel deal directly with the
"represented party". This
brings us straight to the question: "Who really is the corporation, the `represented party?'" ACDL-NJ believes "a party" must be
construed broadly in order to vindicate the policies underlying R.P.C. 4.2. Thus, we reiterate that the corporation is "those
individuals through whom the corporation can be held criminally or civilly
liable." This means: a) the core
management group; b) those individuals whose actions can be imputed to the
corporation; and c) those individuals whose statements would be deemed
statements of a party and not hearsay.
This, obviously, includes former employees as well as current, if those
employees fall into one of the three categories. Any more limited construction would defeat the purpose of R.P.C. 4.2, by denying a corporation
representation when adverse counsel directly contacts those whose actions can
legally bind the entity.
When Is The Rule Applicable?
The ACDL-NJ has been
careful to limit its support for the application of 4.2 to circumstances where
the client knows the case or investigation exists, has specifically retained
counsel for that case or investigation, and the government has been put on
notice that the client has retained counsel for that specific case or
investigation. The mere presence of
house counsel for a corporation, or a lawyer on permanent retainer for an
individual cannot trigger the
proscriptions of R.P.C. 4.2. But, where an entity or an individual is
aware of a claim or pending criminal investigation, and where an individual has
actually retained counsel for the purposes of that potential litigation, or an
entity's house counsel has opened a file for that specific purpose, the
dictates of R.P.C. 4.2 are triggered,
so long as the adversary has been notified specifically. The adversary must be on notice that the client is aware of the case and has sought legal
counsel for the particular case or
investigation.
A proposed cut-off line at the filing of an indictment or a
civil complaint has absolutely no support in logic. Judge Weinstein put the point succinctly:
A person who retains counsel to protect him when
he is the target of the grand jury investigation is, within the definition [of
the rule] a `represented party'. Any
more exclusive definition of a party as a person or entity by or against whom a
proceeding has been commenced is not serviceable for purposes of construing the
ethical rule.... in the context of the ethical code it is sufficient that the
client is being investigated as a possible defendant in a potential criminal
proceeding....
This expansive definition of a party to include a
person who is a potential litigant is reflected in such cases as that covered
in ABA Comm. on Professional Ethics, Informal Opinions, No. 1373 (1976). The Committee on Professional Ethics found
that [the disciplinary rule] prohibited a district attorney from sending an
attorney's client a copy of a plea offer letter, the original of which was sent
to the attorney; the matter was only under investigation and the client had yet
to be indicted....
Viewing the rule in light of its purpose makes
clear that a rigid notion that ethical obligations commence only when a
criminal proceeding begins is not in harmony with the spirit of the Code. The
rule is crafted to protect the client from squandering a possible claim or
defense and to insure against disclosure of privileged information. These concerns are fully implicated by the
time a client becomes aware that he is the focus of suspicion, and the
government attorney knows he is represented...
In white-collar crimes... the most critical phase is often before
indictment; it is then that the skilled attorney uses persuasion and
negotiation to forestall or shape the potential prosecution. Under [the disciplinary rule] it is not material
ethically that the client has not technically become a party by indictment,
arraignment or arrest.
United States
v. Jamil, supra, 546 F.Supp. at 653-54.
While Jamil was
reversed on other grounds[2],
the Second Circuit approved Judge Weinstein's reasoning in United States v. Hammad, supra,
858 F.2d at 838. In Hammad, the issue was whether an
informant operating under the prosecutor's direction could conduct an
undercover tape-recorded conversation with a represented client before
indictment. Judge Glasser, the trial
judge, dismissed the indictment, but limited the rule's applicability -- as the
ACDL-NJ urges here -- "to instances
in which a suspect has retained counsel specifically for representation in
conjunction with the criminal matter in which he is held suspect and the
government has knowledge of that fact." United States v. Hammad,
678 F.Supp. 397, 401 (E.D.N.Y. 1987).
(Emphasis added). Judge Glasser
correctly understood that such an interpretation of the rule exempts the vast
majority of cases where the suspects are unaware they are being
investigated.
That limitation, urged by the ACDL-NJ and adopted by Judge
Glasser, answers the question raised in the discussion by Sharon Ransavage, the
Assistant Prosecutor from Hunterdon County, who rhetorically asked whether a
whistleblower who comes forward can interact with the Prosecutor's Office even
if the whistleblower is an employee who can bind a corporation represented by
house counsel. Representatives of the
Association of Corporate Counsel answered the question very differently from
the position of the ACDL-NJ. The issue
is not whether the represented client initiates contact. As the district court in United States v. Lopez pointed out
"Courts have consistently ruled that the ethical prohibition bars a
prosecutor from communicating with a represented individual without his or her
counsel even if it is the individual who makes the first contact.... [citations
omitted]." The Lopez court pointed out that the text
following the California version of the rule explicitly stated that it was
irrelevant whether an attorney is contacted by the opposing party. The Committee on Professional Ethics of the
ABA has unanimously ruled that the ethical prohibition is violated even when
the defendant initiates contact with the government. ABA Opinions of the Comm. on Prof. Ethics (1967), at 360. As the court in Lopez concluded
Moreover, as the ethical prohibition applies to
attorneys and is designed in part to protect their effectiveness, a represented
party may not waive it.
United States
v. Lopez, supra, 765 F.Supp. at 1451-1452.
The real question is whether the corporation has retained
counsel specifically for
representation in conjunction with a matter in which it is held suspect and the
adversary has knowledge of that fact.
If those conditions are met, the question then becomes the potential
conflict of interest. See pp. 7-11, infra. If those conditions
are not met, the prosecutor is free to discuss the matter with the citizen who
has approached.
The Lopez court
found People v. Sharp, 150 Cal. App.
3d 13, 197 Cal.Rptr. 436 (1983),
"especially instructive".
Prior to indictment, but after arrest for bank robbery, the district
attorney supervised a police lineup in the absence of retained counsel. The Sharp
court held that the police action violated the ethical prohibition against
communication with a represented individual and stated:
Because the prosecutor's position is unique -- he
represents authority and the discretion to make decisions affecting the
defendant's pending case -- his contact carries an implication of leniency for
cooperative defendants or harsher treatment for the uncooperative. Such contact intrudes upon the function of
defense counsel and impedes his or her ability to negotiate a settlement and
properly represent the client, whose interests the rule is designed to
protect. Hence, when the prosecutor in
the instant case directed his agents to conduct the lineup without insuring
that defense counsel was properly notified, he obtained evidence by means violative
of his professional ethical responsibilities...
Id. at 18. 197 Cal. Rptr. at
436. (Ellipses in original).
There can be little doubt that limiting the rule to
post-indictment or post-filing eviscerates fundamental principles. The limitation adopted by Judge Glasser and
urged by ACDL-NJ largely answers stated law enforcement concerns.
How To Deal Fairly With Potential Conflict of Interest.
The only truly difficult conceptual issue is the
"conflict of interest" problem.
A government lawyer can cause a represented client, without his
counsel's presence, to squander a possible claim or defense, to disclose
privileged information, or to unfairly influence the client to become a
cooperating witness for the government. Moreover, such an initiative can damage or destroy the
lawyer-client relationship. By the same
token, an individual who can bind a corporation, may be represented by counsel for
the corporation whose primary obligation is to the corporation and not to the
individual client. This presents the
potential for the client to be represented by a lawyer with a divided loyalty
-- the classic conflict of interest. Of
course, clients have the right to waive that potential conflict but, only when
the waiver is made knowingly by a client who is in full possession of all of
the facts and understands all the ramifications which can flow from those
facts. It is only then that the
individual can make an informed choice.
See R. 3:8-2; State v. Bellucci,
81 N.J. 531 (1980); State v. Land, 73
N.J. 24 (1977).
While New Jersey recognizes that a defendant has the right
to conflict-free representation, State v.
Bellucci, supra, 81 N.J. at 538; State v. Land, supra, 73 N.J. at 29-31, it also recognizes that a defendant may
for tactical reasons choose to be represented by an attorney who also
represents a co-defendant. State v.
Bellucci, supra, 81 N.J. at 545; State v. Land, supra, 73 N.J. at 32.
Indeed, that defendant has the "right to have such representation,
for parties may surrender their constitutional right to independent
counsel." Id. at 32. Thus, joint
representation is permitted if the defendant knowingly and intelligently waives
his or her right to independent counsel.
State v. Bellucci, supra, 81 N.J. at 545; State v. Land, supra, 73 N.J. at 33; see
also State v. Medina, 254 N.J. Super. 668, 682-83 (App. Div. 1992)
(recognizing that joint representation is allowable with a knowing and
intelligent waiver).
Relying on In Re
Abrams, 56 N.J. 271 (1970) and In Re
Garber, 95 N.J. 597 (1984), Deputy Attorney General Cronin premised his
entire argument on a theory that an attorney can never represent both a corporation and an employee of the
corporation in the criminal context, even if the employee chooses to waive any
conflict of interest. But that is
simply not the existing state of the law.
The Abrams and Garber decisions do no more than
recognize that, in limited circumstances, an inherent conflict of interest can
prohibit representation of two or more defendants by one lawyer. Those decisions, however, turn on their own
peculiar facts, and are not a blanket
bar to all multiple representations by a single lawyer.
Abrams involved
an attorney who was retained by an organization on a regular basis and who was
paid to represent its employees when necessary, 56 N.J. at 274-75, while Garber involved an attorney who had
previously represented the primary defendant and who had close personal ties
with him. 95 N.J. at 613.
Concerned with the appearance of impropriety created under
those specific circumstances, those courts concluded that joint representation
would be improper. They did not
conclude that a defendant corporation and an employee of the corporation could never waive a conflict of interest or be
represented by the same counsel.
Indeed, the Garber court
recognized that generally a client can consent to joint representation if the
client is fully informed and knowingly agrees to such representation. 95 N.J. at 612-13.
ACDL-NJ submits that it is the obligation of this Committee
to formulate a procedure for the individual client to make such an informed
judgment, free from the potential unfair persuasion of either the government or
the corporation. When a governmental
agency feels that an individual, who in our definition is the corporation, may have a conflict of interest because he is
represented by corporate counsel, the governmental agency should trigger the
procedure to be implemented [preferably in a courtroom setting] on notice to the corporation and with
the right to be present. In United States v. Lopez, an inadequate
procedure was attempted by the government, who brought the matter to the
attention of a magistrate ex parte
and without notice to retained counsel.
The district court judge found that the hearing before the magistrate
was an ineffectual nullity because the government misled the magistrate about
material facts. This danger is obviated
by the requirement that corporate counsel (or retained counsel for an
individual client) be given notice and an opportunity to be heard at the
hearing on the potential conflict.
The client/witness must be protected from undue coercion by
either the government or the corporation.
This can best be done on neutral territory [the court] in a procedure
which embodies fundamental notions of due process.
The concerns of the prosecutors focused primarily on
pre-indictment contacts with individuals who are represented by corporate
counsel. They fear counsel may interfere
with efforts to reach cooperation agreements (whether a plea or non-prosecution
agreement).
First Assistant Fishman raised the specter that notice to
the corporation would permit the corporation to debrief the client as a witness
before the government lawyer could speak to the client directly without
counsel. However, that hypothetical
horrible is a straw horse. Assuming
Judge Glasser's limitation, the rule applies only where the suspect has
retained counsel specifically for representation in conjunction with the
criminal matter in which he is held suspect[3] and the
government has knowledge of that fact.
In such a circumstance, the client/witness inevitably has long since
been debriefed.
Similarly, others claimed that notice to the corporation
will have a chilling effect on the employee, who may fear economic and other
vocational reprisals. But, all
cooperating witnesses are disclosed sooner or later. When the corporation has retained counsel, is aware of the
investigation, and has notified the lawyers conducting the investigation, there
is precious little to be lost and much to be gained by adhering to the
fundamental principles of due process.
In the notorious Thornburgh Memorandum (carefully analyzed
by Judge Patel in United States v. Lopez,
as "misguided and not premised on sound legal authority" [at 1450]),
the Attorney General claimed that lawyers for the Department of Justice were
not bound by a State's ethical rules.
The Thornburgh Memorandum was a rationalization to allow United States
attorneys to directly contact clients, whose lawyers the government believed to
have divided loyalties, in order to induce those clients to
"cooperate". The Attorney
General relied upon Wood v. Georgia,
450 U.S. 261 (1981), for the proposition that "when an individual believes
that his lawyer is representing not his own interests but the interests of a
third party, and that announcing to his lawyer that he has made contact with
Government investigators could have dire consequences" direct communication
with the government may benefit the client and vindicate his rights. Thornburgh Memorandum at p.2. Of course, Wood is simply not authority for such a "radical
statement". Rather, as Judge Patel
emphasized, the court's opinion in Wood
makes it clear that the result of any conflict of interest between defendant
and their attorney would the appointment of new counsel, not direct
communication between the defendant and the government. United
States v. Wood, supra, 450 U.S.
at 271-272.
Judge Patel surveyed the literature as well as the case
law, and tellingly found that even those commentators who favored a narrow
construction of the ethical rule "generally recognize the value of the
rule when plea bargaining is at issue... 24 Crim.L.Bull. at 320." United
States v. Lopez, supra, 756
F.Supp. 1449, fn. 29. Of course, plea
bargaining or the ability to turn the individual client into a cooperating
witness for the state or government (a form of plea bargaining) is the entire
concern here. To permit an ex parte initiative after counsel has
been specifically retained and the government knows it, is wrong, unfair, and
has been historically barred by the ethical rule.
New Jersey's Federal Prosecutors Must Be Bound By New
Jersey's Ethical Rules.
New Jersey ethical rules must regulate the conduct of
lawyers appearing in New Jersey state and federal courts. Local Rule 6 of the United States District
Court for New Jersey. Paul Fishman
argued that newly proposed federal rules will govern the conduct of Department
of Justice lawyers, including Assistant United States Attorneys for the
District of New Jersey. Unless the
federal district court adopts rules different from those currently in effect,
State ethical rules will and should control.
Certainly, this Committee's Report must not condone an exemption for the
government's prosecutors and civil lawyers.
Such a position is similar to that urged in the notorious Thornburgh Memorandum. Judge Patel eloquently rejected such a
wrong-headed notion and held California State ethical rules applied to federal
prosecutors in the United States District Court for California:
The government's suggestion that this court may
not enforce its Local Rules against DOJ attorneys because of some perceived
conflict with those attorneys' statutory responsibility to investigate criminal
investigations is, to put it bluntly, preposterous. DOJ attorneys may not be exempted from the court rules which
every other attorney must obey. Like
every attorney, an attorney for the United States appears before the court in a
dual role.
He is at once an officer of the court
and the agent and attorney for a client; in the first capacity he is
responsible to the Court for the manner of his conduct of a case, i.e., his
demeanor, deportment and ethical conduct... [Citations omitted.]
When a court regulates a prosecutor's ethical
conduct, it regulates the prosecutor in his capacity as an officer of the court
and thus there is no threat to the principle of separation of powers....
Moreover, the principle that local rules duly
adopted by a U.S. district court are federal law is not foreign to the
Department of Justice.
United States
v. Lopez, supra, 765 F.Supp. 1453-54. (Ellipses in original).
Judge Weinstein put the point even more forcefully:
Exempting lawyers in the public service from the
rules of ethical conduct would put the legal profession in the `indefensible
and intolerable position' [citation omitted] of demanding greater propriety in
money matters while abiding lesser rectitude in criminal matters where life and
liberty are at stake and the policy considerations are `stronger'. [Citation omitted.] Public prosecutors are not above the law of
the profession any more than they are above the law of the land. [Citation omitted.] `The judiciary as well as the public is
dependent upon professional ethical conduct of attorneys and thus has a
significant interest in assuring and maintaining high standards of conduct of
attorneys engaged in practice,' whether civil or criminal. Middlesex
County Ethics Committee v. Garden State Bar Association, U.S. , , 102 S.Ct. 2515, 2523, 73 L.Ed.2d 116
(1982).
United States
v. Jamil, supra, 546 F.Supp. at 652-53.
Judge Patel's conclusion applies equally to Paul Fishman's
position as to the Thornburgh Memo:
In light of the prominent and unique role of the
Department of Justice in this country's litigator, the suggestion that DOJ
attorneys should be exempted from a long-standing and universally applied
ethical norm is alarming.
United States
v. Lopez, supra, 765 F.Supp. at 1449.
