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'The Court Expresses Its Concern'

Friday, December 4, 1998

Following is an excerpt from an April 28 order by Chief U.S. District Judge Norma Holloway Johnson. The order, unsealed on December 4, was in response to a motion by Monica Lewinsky's first lawyer, Francis Carter. Legal citations have been deleted.

D. Allegations of Prosecutorial Misonduct

b. Contact with represented persons

Mr. Carter claims that OIC attorneys communicated with Ms. Lewinsky, and sent Ms. Tripp to record her conversations with Ms. Lewinsky, when they knew Ms. Lewinsky was represented by Mr. Carter. Rule 4.2 of the D.C. Rules of Professional Conduct provides:

During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Rule 4.2(a) (emphasis added). The Comment to the Model Rule states:

Communications authorized by law also include constitutionally permissible investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings, when there is applicable judicial precedent that either has found the activity permissible under this Rule or has found this Rule inapplicable.

Model Rule 4.2 cmt. 2.

The D.C. Circuit has found that non-custodial communications with represented criminal suspects during the investigatory stage are not subject to the anti-contact rule. In Sutton, government informants recorded inculpatory conversations with the defendant prior to indictment and after the government became aware that the defendant was represented by counsel. The Court of Appeals stated that the disciplinary rule against contact "was never meant to apply to situations like this one" and refused to exclude the taped conversations. A similar factual situation occurred in Lemonakis and the D.C. Circuit there stated: "we nevertheless find the actions of the U.S. Attorneys to be consistent with the current ethical standards demanded of the legal profession."

With the exception of the Second Circuit, every court of appeals that has considered a similar case has held that ethical rules such as Rule 4.2 do not apply to pre-indictment criminal investigations by government attorneys or their agents. These courts have held that the anti-contact rule "is inapplicable to contacts made by prosecutors or their agents with criminal suspects in the course of a pre-indictment investigation."

Only the Second Circuit has found a prosecutor's conduct to violate the ethical rule against contact with a represented person in a non-custodial, pre-indictment setting. Even that court held that "the use of informants by government prosecutors in a pre-indictment, non-custodial situation, absent the type of misconduct that occurred in this case, will generally fall within the 'authorized by law' exception to (the disciplinary rule) and therefore will not be subject to sanctions."

The interview with Ms. Lewinsky occurred prior to any indictment and in a non-custodial setting; Mr. Carter has not alleged otherwise Even if Ms. Tripp did act as an agent of the prosecutors, her undercover recording of Ms. Lewinsky also does not violate the ethical prohibition on contact with a represented party. The Court finds that attorneys from the OIC acted within the ethical rules in questioning Ms. Lewinsky without her attorney present.

However, Department of Justice regulations provide: "An attorney for the government may not initiate or engage in negotiations of a plea agreement settlement, statutory or nonstatutory immunity agreement, or other disposition of actual or potential criminal charges or civil enforcement claims, or sentences or penalties with a represented person or represented party who the attorney for the government knows is represented by an attorney without the consent of the attorney representing such person or party." The Independent Counsel statute provides: "An independent counsel shall, except to the extent that to do so would be inconsistent with the purposes of this chapter, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws."

Department of Justice regulations explicitly provide that 28 C.F.R. Part 77 "does not create substantive rights on behalf of criminal or civil defendants, targets or subjects of investigations, witnesses, counsel for represented parties or represented persons, or any other person other than an attorney for the government, and shall not be a basis for dismissing criminal or civil charges or proceedings against represented parties or for excluding relevant evidence in any proceeding in any court Of the United States." Moreover, the regulations provide that "[a]llegations of violations of this part shall be reviewed exclusively by the Office of Professional Responsibility of the Department of Justice..."

This Court's supervisory power to control prosecutorial misconduct before the grand jury is quite limited. The Supreme Court in Williams in essence removed all general supervisory authority over the grand jury from the federal courts. In that case, the district court had dismissed an indictment because the government failed to disclose substantial exculpatory evidence to the grand jury, in violation of a Tenth Circuit rule and provisions in the DOJ manual to the contrary. The Supreme Court held that the district court had improperly used its supervisory powers, stating: "[W]e think it clear that, as a general matter at least, no such 'supervisory' judicial authority [over grand jury functioning] exists ..." It went on to state that "any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceeding."

The First, Sixth, and Seventh Circuits have addressed situations in which prosecutors who violated the Department of Justice Manual by failing to provide warnings to targets of a grand jury's investigation where such warnings were not constitutionally mandated. In each case, the courts found that they were faced with "the violation of a policy which does not justify a case-related judicial sanction and yet which appears immune to expressions of judicial satisfaction." The First and Seventh Circuits explicitly warned prosecutors that, in appropriate circumstances, they would consider referring such internal policy violations to the Department of Justice's Office of Professional Responsibility.

The Independent Counsel's failure to follow its own regulations does not justify the Court's use of the limited supervisory power it has over the grand jury to quash the instant subpoenas. However, as the First Circuit said, "[w]e assume that these policies are meant to be enforced..." The Court expresses its concern that the Office of Independent Counsel may have acted improperly in conducting immunity negotiations with Ms. Lewinsky without the presence of her counsel but declines to take further action on this particular matter.

c. Disruption of the attorney-client relationship

Mr. Carter also claim that Ms. Lewinsky was not permitted to contact him while the Independent Counsel was questioning her. Ms. Lewinsky's counsel proffered at oral argument that Mr. Emmick told Ms. Lewinsky not to call Mr. Carter because he might "tip off" Vernon Jordan, but that allegation does not appear in Ms. Lewinsky's subsequent declaration. The Independent Counsel has submitted a declaration from an FBI Special Agent who states: "At no time was Ms. Lewinsky refused permission to call her attorney, Mr. Carter." Fallon Decl. at 13.

Even if this conduct had occurred, it did not violate Ms. Lewinsky's Sixth Amendment right to counsel because that right had not yet attached at the time of the interview. Sixth Amendment rights do not "attach until after the initiation of formal charges." A right Ms. Lewinsky did not possess could not have been violated. This situation also does not appear to be covered by the Rules of Professional Conduct.

Department of Justice regulations state that "An attorney for the government or anyone acting at his or her direction, may not, when communicating with a represented person or represented party ... improperly seek to disrupt the relationship between the represented person or represented party and counsel." As the Court has found, Department of Justice regulations do not provide a basis for quashing the subpoenas. Further, it appears to the Court that no OIC attorney disrupted the attorney-client relationship between Ms. Lewinsky and Mr. Carter by refusing to give her permission to contact him. See Declaration of Michael Emmick at 13; Second Declaration of Patrick Fallon, Jr. at 16; Declaration of Steven Irons at 4, 6; Declaration of Stephen Binhak at 5. She was given several unsupervised opportunities to contact anyone she chose, see Emmick Decl. at 114; Declaration of Bruce Udolf at 7.6; Irons Decl. at 16; Binhak Decl. at 116-8, and an FBI Special Agent working with the OIC called Mr. Carter to determine if he would be available if Ms. Lewinsky decided she wished to contact him. Second Fallon Decl. at 15. The Court will not refer this matter to the Department of Justice Office of Professional Responsibility for investigation.

NORMA HOLLOWAY
CHIEF JUDGE

© Copyright 1998 The Washington Post Company

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