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The Ohio Supreme Court has been asked to broaden the circumstances in which a prosecutor can subpoena the billing records of criminal defense attorneys. Last week, the lawyer in a money laundering case asked the state’s top court to quash the subpoena that had compelled him — on the first day of his client’s trial — to reveal how much his client had paid him. In the Matter of Subpoena Duces Tecum Served Upon Attorney John F. Potts, No. 02-0953. If the court sides with the prosecution, the defense bar fears a plague of these types of subpoenas, which would undermine the adversarial system, said Paul Skendelas, amicus chairman of the Ohio Association of Criminal Defense Lawyers. Tom Matusak, assistant Lucas County prosecutor, declined to comment. After a 1999 drug search of the premises of defendant Donald Lentz came up empty, the state started civil forfeiture proceedings for two vehicles. Toledo, Ohio, solo practitioner John Potts took the case. Lentz was later indicted on four counts of money laundering and the civil forfeiture converted to a criminal one. Trial was set for April 2000. State v. Lentz, No. CR00-1560(A). The government’s case was based on an expenditures analysis that would allegedly prove that Lentz’s spending, about $50,000 in total, exceeded his legitimate sources of income. Illegal sources could then be presumed to account for the rest. In March, Matusak subpoenaed Potts’ billing records. Potts filed a motion to quash, arguing that the records were irrelevant to an indictment that described acts that had occurred before he was hired. Additionally, the motion claimed that the subpoena interfered with Lentz’s Sixth Amendment right to counsel of choice, in that Potts would become a witness and thus disqualified from representing his client. As a rule, in the federal circuits, attorney-client privilege is not applicable to fee-payment documents. Ohio’s statutory scheme follows these federal precedents. However, these records are usually subpoenaed in grand jury proceedings, a pre-indictment situation where Sixth Amendment rights have not yet attached. But Potts was never brought before the grand jury that indicted Lentz. Months later, the prosecution filed its first of three subpoenas for billing records, each expanding in scope and proximity to trial. A grand jury added two more similar counts without calling Potts. By letter, the prosecuting attorney informed Potts that if he lost his motion to quash on the day of trial, Lentz would have to find new counsel. Potts lost, but refused to turn over the documents for an in-camera inspection. He was held in contempt, sentenced to 10 days in jail and fined $250. “It was not a difficult decision for me to make,” Potts said. “My ethical obligations have always been clear to me.” But the judge stayed his orders so that Potts could seek review in Ohio’s 6th District Court of Appeals. State v. Lentz, No. CL-01-1033. UNLAWFUL DISRUPTION? John Czarnecki of Toledo’s Cooper & Walinski, who represents Potts, argued that the prosecution had disrupted trial preparation and Potts’ relationship with his client. Among other claims, he asserted that the prosecution had not met any element of the four-pronged test set out in U.S. v. Nixon, 418 U.S. 683 (1974). The Nixon criteria for obtaining post-indictment records from defense counsel are that: the documents are evidentiary and relevant; they aren’t otherwise procurable by due diligence; the party can’t properly prepare for trial without the documents; and the party is acting in good faith and is not on a fishing expedition. Matusak replied in his brief that the prosecution had met its burden under Nixon, because State v. Geis, 2 Ohio App. 3d 258, does not require the state to meet all the Nixon criteria in an evidentiary hearing, but rather those criteria can be adjudged in-camera. He added that Ohio disciplinary rules do not require Potts to withdraw if he testifies. The court of appeals accepted the trial judge’s finding of facts regarding the Nixon criteria. While reversing the contempt citation because Potts had acted in “good faith,” the court did not quash the subpoena. Potts appealed.

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