By Ian Wallach, partner, Feldman & Wallach, http://www.feldmanwallach.com
In Los Angeles there have been recurring reports of detectives calling represented parties – outside of the presence of, and without the knowledge of or notice to, their counsel, in hopes of establishing a cooperation agreement, and telling those parties to fire the lawyer. This is happening in matters that are not yet filed and there is no evidence suggesting that any specific AUSAs or other prosecutors are aware of the conduct.
This article will examine the ramifications of such conduct and make suggestions as to how a lawyer can use this misconduct to his client’s benefit.
This is not a new problem. This is not a regional problem. In Commonwealth v. Manning, 373 Mass. 438 (1977) a federal agent contacted a represented defendant in hopes of having the defendant become an informant. The agent wanted the defendant to become an informant, and made disparaging remarks about the defendant’s attorney. The Court addressed the misconduct and, specifically, if there was a showing of prejudice sufficient to warrant dismissal. The Court stated that it was examining a “deliberate and intentional attack by government agents on the relationship between Manning and his counsel in a calculated attempt to coerce the defendant into abandoning his defense.” Id. at 443. The Massachusetts Court dismissed the case, stating that “we wish to leave no doubt that such conduct will not be tolerated in our criminal justice system.” Id. at 445.
But a few years later, the U.S. Supreme Court was less offended (or at least not sufficiently offended to uphold a dismissal). In U.S. v. Morrison 449 U.S. 361 (1981), the Supreme Court examined a situation where a defendant had hired a lawyer, and then two DEA agents met with the defendant afterwards and stated that the lawyer was substandard and she should fire him. Id. at 363. The defendant moved to dismiss the case based on the misconduct, but there was no showing of prejudice (and, more importantly, there was no evidence that the prosecutor was complicit or even aware that it transpired). The Court provided a historical analysis of governmental misconduct cases and noted that the remedy of exclusion is available for evidence gained unlawfully. See id. at 364. The Court stated that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.” Id. The Court went on to state that in criminal cases, the remedy for governmental misconduct is to exclude the ill-gotten evidence. The Court stated that “we do not condone the egregious behavior of the Government agents. Nor do we suggest that in cases such as this, a Sixth Amendment violation may not be remedied in other proceedings. We simply conclude that the solution provided by the Court of Appeals is inappropriate where the violation, which we assume has occurred, has had no adverse impact upon the criminal proceedings. Id. at 367.
But a few years after that, a California appellate court followed Morrison and still mandated dismissal. In Boulas v. Superior Court, 188 Cal. App. 3d 422 (2d. Dist., 1986), the facts were plainly egregious. The defendant in Boulas hired an investigator – without consulting his attorney – to consult with the authorities about a plea bargain. A deputy met with the investigator and the defendant and proposed a cooperation agreement. The deputy then discussed this meeting with the Deputy District Attorney. The DDA decided that a cooperation agreement could only go forward if the defendant’s present attorney was fired. This was relayed to the defendant, who fired his attorney. The DDA then instructed the investigator as to which attorney to hire. The Court’s use of the sanction of dismissal was apparently due to the Deputy District Attorney’s complicity and proactive intrusion into the relationship between the attorney and the client.
The Court set out to determine “the proper remedy for intentional interference by law enforcement personnel with the attorney-client relationship in the unique instance of such interference leading to the irremediable breakdown of that relationship.” Boulas, 188 Cal. App. 3d at 425. The Court began its discussion by stating “[t]here is no question that governmental authorities acted improperly when they contacted Boulas outside of the presence of his attorney to advise him to fire Attorney S.” Id. at 429. The Boulas court then cited a long line of cases holding that that “[w]hen conduct on the part of the authorities is so outrageous as to interfere with an accused’s right of due process of law, proceedings against the accused are thereby rendered improper” and that dismissal was a proper remedy in the face of shocking misconduct by overzealous government agents. Id. The prosecution argued that absent proof of harm, dismissal was an inappropriate sanction. But the Court eloquently stated the nature of the attorney-client relation in a criminal action as follows:
The prosecution’s argument fundamentally misunderstands the scope and breadth of the state’s invasion of Boulas’s right to be represented by counsel of choice. Criminal defense lawyers are not fungible. The attorney-client relationship “. . . involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty.” (citing Smith v. Superior Court (1968) 68 Cal.2d 547, 561). In order to provide effective assistance of counsel, it is essential that a defendant have full confidence that his attorney is representing the defendant’s interests with all due competence.
Boulas, 188 Cal. App. 3d at 430. The Court reiterated the strict prohibitions against the state from interference with this relationship, stating “[t]he state is obliged ‘to refrain from unreasonable interference with the individual’s desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.’ (citing People v. Crovedi, (1966) 65 Cal.2d 199, 206). The state must respect, and not interfere with, a defendant’s ‘right to decide for himself who can best conduct the case . . . .’ (citing Maxwell v. Superior Court, 30 Cal.3d 606. 615).” Id. at 432.
The Boulas Court distinguished itself from the Supreme Court’s decision in Morrison, by stating:
It is important to note that, in United States v. Morrison, 449 U.S. 361, the Supreme Court did not rule out the possibility of ordering the dismissal of a case upon a proper showing of prejudice. The court, in Morrison, found that the record tendered by the defendant failed to “reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter further lawlessness.” (Id. at pp. 365-366, fn. 2, italics added.)
There exist factual distinctions between Morrison and the present case. The defendant in Morrison was twice contacted by police officers. During these visits, the officers berated her attorney’s competence and sought her cooperation in another case. She declined to cooperate, did not supply any information pertinent to her case, and kept her attorney. (Id. at pp. 362-363).
There is no suggestion in Morrison that the prosecutor’s office participated in the decision of the police officers to speak with the defendant outside of the presence of her attorney. In contrast, the record before this court contains substantial evidence of such participation on the part of a deputy district attorney.
Boulas, 188 Cal. App. 3d at 431-432. The Court dismissed the case (though one judge dissented in Boulas, citing Morrison, stating that the conduct was indefensible but there wasn’t a showing of prejudice that warranted dismissal). The Court also gave the following note of hope at the end of the opinion:
It is the hope of this court that this opinion will serve to discourage government officials from interfering with the constitutional right of an accused to be assisted by counsel of his own choosing. “In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” (citing Olmstead v. United States (1928) 277 U.S. 438, 485 (Brandeis, J., dis.)).
Id. at 434.
Boulas is still the law in California. (See People v. Uribe, 199 Cal. App. 4th 836, 868 (Cal. App. 6th Dist. 2011), “Boulas has no application. There, ‘the grave sanction of dismissal’ was found to be warranted ‘to discourage government officials from interfering with the constitutional right of an accused to be assisted by counsel of his own choosing.’ Here the misconduct did not involve in any way an interference with defendant’s relationship with counsel”). But the Boulas’ Court’s warning may not have had much effect, as the practice continues.
So, the law in California is that if (a) government agents intentionally seek to have a represented party terminate her lawyer; and (b) prejudice arises; then a dismissal can be issued. And will more likely be issued if (c) the prosecutor is aware of, or complicit in, the misconduct.
So how can you establish complicity? And how can you establish prejudice? Consider writing a letter to the District Attorney identifying the officer or agent and the misconduct. This could help to establish notice and complicity, and be a starting point for a resolution. And as far as prejudice, consider having the client fire you, and letting a friend take over. Or at least have the client write down what it felt like to have government agents come speak to him knowing he was represented, and after you told them that it would not happen, and that it would be unlawful for them to do so. If your matter is not yet filed, you may wish to talk about this with the prosecutor’s office, rather than write about it, in hopes of using the prosecutor’s desire to protect the officer to your advantage (ideally, in the form of a non-filing or informal disposition). If the case is filed, then taking the steps above can give a tiny chance of a dismissal, and a stronger position to negotiate for lenient resolution.