The opinion
Brown, J.
(concurring). I believe we should consider the implementation of a prophylactic rule in which the indictment against the defendant is dismissed where there was deliberate misconduct on the part of the law enforcement officers or prosecutors which interfered with the defendant’s right to the effective assistance of counsel. Such a rule would likely have a stronger inhibiting effect on future police and prosecutorial conduct of this kind. See generally Wald & others, Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519 , 1550-1554 (1967). I concur, however, with the majority’s conclusion that this is not an appropriate case for us to dismiss the indictment against the defendant. 1 Nevertheless, it must be understood that I strongly condemn the actions of the agents of the DEA in their attempt to undermine the defendant’s confidence in his counsel.
It should be emphasized that defendants in such situations are not without remedies. As mentioned in the majority opinion, the defendant can receive a new trial if he requests one now (see G. L. c. 278, § 29), notwithstanding that the degree to which the defendant’s Sixth Amendment right to counsel has been impaired is speculative. I take this opportunity to reiterate the majority’s citation of Glasser v. United States, 315 U. S. 60, 76 (1942), to the effect that “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” The defendant may also have available to him a civil action against the DEA agents alleging in *34 terference with the attorney-client relationship. 2 Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 161-162 (D.D.C. 1976). See Wounded Knee Legal Defense/ Offense Comm. v. Federal Bureau of Investigation, 507 F. 2d 1281, 1284 (8th Cir. 1974). Compare Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U. S. 388 (1971); Bethea v. Reid, 445 F. 2d 1163 (3d Cir. 1971), cert. den. 404 U. S. 1061 (1972); United States ex rel. Moore v. Koelzer, 457 F. 2d 892, 894 (3d Cir. 1972). See generally, Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1 (1972).
And finally, I am troubled with the motion judge’s handling of the defendant’s claim that certain evidence at the hearing on the motion to dismiss the indictment was improperly excluded. It seems to me that when a mere Federal regulation clashes with the Fifth and Sixth Amendments to the United States Constitution, cf. Pointer v. Texas, 380 U. S. 400, 405 (1965); Washington v. Texas, 388 U. S. 14, 23 (1967), the regulation must fall. See United States ex rel. Touhy v. Ragen, 340 U. S. 462, 467-468 (1951).
In its brief the Commonwealth also suggests this as an alternative available to aggrieved defendants.
The fact that the officers guilty of misconduct were agents acting entirely independently of State law enforcement officials in approaching the defendant cuts against implementation of a prophylactic rule in the instant case.