Joel Cohen
Joel Cohen ()

The question itself seems ridiculous, doesn’t it? Of course, the answer has to be “no.” Except … not really.

There was a time when a criminal attorney would call the prosecutor, or even the investigating agent, and say: “I represent X. All future contacts should/must be through me.” That would be the end of it. No prosecutor would dare authorize the investigating agent, or an informant operating under the agent’s instruction, to speak to X behind the lawyer’s back. Nor, certainly, would the prosecutor contact X directly. Those were the rules of the road; pretty much everyone in the justice system knew them, and adhered to them.

The Thornburgh Memo

At some point, the Justice Department concluded that the “no-contact” rule—prohibiting contact with represented individuals—was inapplicable to federal prosecutors. The department focused on Disciplinary Rule 7-104 (predecessor to NY’s Rule of Professional Conduct 4.2) and then-ABA Model Rule 4.2, arguing that prosecutors couldn’t be bound by them. NY Rule 4.2 states:

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.

Cf. ABA Rule 4.2 (amended in 1995): A “lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented … , unless … authorized by law … .”

In 1989, Attorney General Richard Thornburgh wrote the “Thornburgh Memorandum” (see appendix to In the Matter of Doe, 801 F. Supp. 478 (D. N.M. 1992)), which proclaimed that any attempt to use local rules to stem federal investigations “runs afoul of the Supremacy Clause.” Basically, federal attorneys were not subject to state ethics rules. Specifically, and in response to U.S. v. Hammad, discussed below, Thornburgh made clear that the “authorized by law” exception to the rule applies to “all” pre-indictment department-attorney communications with represented individuals. Thus, disciplinary rule (DR) 7-104 couldn’t be used to achieve “what cannot be achieved through the Constitution: a right to counsel at the investigative stage of a proceeding.”

The memo was short-lived. Rejected by the courts and Legislature, federal attorneys are indeed constrained to comply with state ethics rules. U.S. v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991) vac. on other grounds 4 F.3d 1455 (9th Cir. 1993) (765 F. Supp. at 1463; 4 F.3d at 1458: “The government, on appeal, has prudently dropped its dependence on the Thornburgh Memorandum … .”); 28 U.S.C. §530B (McDade Act); 28 C.F.R §77.6 (Ethical Standards for Attorneys for the Government); U.S. Attorney Manual 9-13.200 (Communications with Represented Persons).

But what does this really mean? Sure, if a defendant is indicted so that his Sixth Amendment right to counsel attaches, a prosecutor or his agent or operative couldn’t engage. Even Thornburgh agreed. But what about pre-indictment or pre-arrest? What if an attorney told the prosecutor that all future contact must be through him? Can the prosecutor nevertheless “invite” the client to speak with him without notifying counsel? Can an informant meet with the client?

The answer, it seems, is often “yes” in the federal courts—largely because of the precise language of state ethics rules. Language, by the way, which civil lawyers cannot rely on so that, it appears, they are actually held to a harsher standard.

Federal Courts

In U.S. v. Hammad, 846 F. 2d 854 (1988) revised 858 F. 2d 834 (2d Cir. 1988) cert den 498 U.S. 871 (1990), the prosecutor—after having been contacted by counsel—not only had a cooperator meet with Taiseer Hammad, he gave the cooperator a sham grand jury subpoena to present to Hammad. They met, discussed the crime and ways to avoid the subpoena—all tape recorded. Hammad moved to suppress the recording claiming the prosecutor violated NY DR 7-104.

The government argued the essence of what would be the Thornburgh Memorandum—that the DR didn’t apply in criminal matters and surely not before a defendant was a defendant, i.e. until Sixth Amendment protection attached. The U.S. Court of Appeals for the Second Circuit declined to hold the DR applicable only in civil matters, or to say that it was coextensive with the Sixth Amendment. It acknowledged the “closer question” of applicability during an investigatory stage and “urge[d] restraint … to avoid handcuffing law enforcement officers in their efforts to develop evidence.”

It nonetheless resisted “binding the code’s applicability to the moment of indictment,” a date which—the court noted—lies within the control of the prosecution. While no bright line rule would be imposed, the use of informants, pre-indictment, “will generally fall within the ‘authorized by law’” exception to DR 7-104.

Hammad is considered an outlier, likely because the prosecution’s behavior was particularly egregious given its use of the sham subpoena. In U.S. v. Balter, 91 F. 3d 427 (3d Cir. 1996), the U.S. Court of Appeals for the Third Circuit distinguished Hammad, noting that every other “court of appeals that has considered a similar case has held” that the language of the (by now) applicable Rule 4.2 makes the rule inapplicable to pre-indictment criminal investigations by government attorneys. In Balter, a prosecution by our neighboring U.S. attorney’s office in New Jersey, the court looked at NJ Rule 4.2 (substantially similar to the NY rule), where a cooperator taped conversations with the defendant pre-indictment, but after counsel was in place.

In a decision by then-Circuit Judge Samuel Alito, the court relied on the specific language of the rule to find that the prosecution did nothing wrong. Pre-arrest investigations are “authorized by law”—to hold otherwise would “significantly hamper legitimate law enforcement operations by making it very difficult to investigate certain individuals.” Moreover, under New Jersey law, a criminal suspect is not a party until after formal legal proceedings are commenced. Since Rule 4.2 prohibits contact with a “party,” the rule is inapplicable to someone not yet been charged.

The Second Circuit’s encyclopedic analysis of DR 7-104 in Grievance Comm. for Southern District v. Simels, 48 F. 3d 640 (1995) is also instructive. Distinguishing Hammad, and addressing a defense attorney speaking with a represented witness, the court narrowly construed “party” holding that “a defense attorney engaging in critical pre-trial investigation” did not commit professional misconduct.

New York State

When New York revised its Disciplinary Rules in 1999, it initially changed its rule so that a lawyer could not communicate with a represented person. Apparently at the urging of prosecutors, it reinstated the term “party.” This carried over to the 2009 NY Rules. See, Roy D. Simon, Simon’s New York Rules of Professional Conduct, 2015 Ed. at 1121; NYSBA Op. 735 (2001).

Based only tangentially on the rules, New York state courts nevertheless concluded—in effect—that represented persons in criminal cases cannot be contacted. “Once a suspect has obtained representation in the matter at issue, the suspect in a real sense has ‘activated his constitutional right to interpose an attorney between himself and the overwhelming power of the state.’” People v. West, 81 N.Y. 2d 370, 376 (1993) quoting People v. Skinner, 52 N.Y. 2d 24 (1980). In Skinner, the defendant was repeatedly questioned. He retained counsel. Two years passed, and the police served counsel with an order compelling the defendant to appear in a lineup. Counsel told the police not to question his client, yet they personally served the defendant and, while there, asked if he had anything to tell them. He did, it was incriminating, the hearing court denied a motion to suppress and defendant was convicted at trial. The Court of Appeals suppressed defendant’s statements, remanding for a new trial.

While the holding is not founded exclusively on an interpretation of ethics rules, the court noted that, in a civil matter, once counsel is in place, DR 7-104 prohibits contact with the other party: “We would be hard pressed logically to proscribe such conduct in the civil context yet blithely overlook it in the criminal sphere.”

Civil Matters

Consistent with ethics opinions, Skinner rejected the notion that criminal attorneys—in Skinner, prosecutors—should be permitted to do what civil attorneys cannot, i.e., contact a represented individual. “Outside the criminal context … this committee and other authorities have uniformly interpreted the rule to apply to any person or entity who is represented in a matter” including witnesses and potential witnesses. NYSBA Op. 735 (2001); NYSBA Op. 1047 (2015); Michael S. Ross, “The Legal Aid Lawyer—A Review of Conflict and Conflict-Related Principles,” 2015. Indeed, in civil cases, there is an “absolute proscription” barring communications with a represented individual (NYSBA Op. 463 (1977)) and “formal commencement of an adversarial proceeding” is not necessary to trigger obligations under Rule 4.2 (NYSBA Op. 904 (2012)); cf. Schmidt v. State of New York, 181 Misc 2d 499 (Ct. Cl. 1999).

Conclusion

Isn’t it cynical (or not quite right) in the dichotomy in how the accepted rules of the road are interpreted—civil versus (federal) criminal? A civil attorney can’t talk to anyone who is represented, regardless of whether an action has been commenced; yet a prosecutor (or his “agent”) can talk to your client even when specifically told not to, because he is not yet a “party.”

Federal prosecutors seem to be emboldened so that the earlier protocol of prosecutors to steer clear of represented individuals (even if not officially “parties”) doesn’t apply. Yes, a disciplinary rule might not technically be broken by such occasional trespasses. Accordingly, the criminal bar must be especially vigilant in remonstrating with clients about the need for their compliance with omerta when confronted by agents or anyone wanting to talk about an investigation. But maybe, beyond that, the organized criminal bar needs to confront prosecution offices if, indeed, it has become (even unofficial) office policy to contact those whom criminal defense attorneys already represent.