Strike F o rce attorneys “ flirted w ith ” violations o f C anons o f E thics by approaching target they knew to be represented “ w hen they w ere about to seek an indictm ent against him"
How later courts described this case
- Strike F o rce attorneys “ flirted w ith ” violations o f C anons o f E thics by approaching target they knew to be represented “ w hen they w ere about to seek an indictm ent against him"
- F.B.I. statements indicating there was a “possibility” that the defendant might not be indicted or might “walk out scot-free” did not constitute a promise
- "[T]he appropriate analysis is not whether [the defendant] subjectively expected not to be prosecuted but whether there 18 CR-2022-0521 was a promise held out to which the government, as a matter of fair conduct, might be bound."
- “We do not find that the court’s finding of no actual promise not to prosecute [the defendant] on the . . . charges is clearly erroneous.” (citing Calimano, 576 F.2d at 639–40)
Written by the judges who cited it.
The opinion
GODBOLD, Circuit Judge,
specially concurring.
I concur in Judge Tuttle’s opinion for the court but add this comment.
Part III of the opinion is more tender than I am willing to be with respect to the government attorney’s advising Weiss that it would be in his “best interests” to be represented by someone other than his attorney Brookins. I agree that this intrusion by the government into the relation between Weiss and his attorney was not reversible error, but since the government, in both brief and oral argument, insists that this act of its attorney was correct, I think we should say forthrightly that it was wrong. I do not attribute an improper motive to government counsel, but his act was nevertheless improper.
Government counsel has no business advising any citizen — defendant or witness— about his choice of counsel. Where at trial there is a possible conflict of interest on the part of defense counsel that may infect a conviction, the government can, and perhaps is obligated, to call it to the attention of the court. The court can then determine whether a conflict is present and resolve it with due regard for the rights of the parties and the integrity of the criminal justice system. But it is inappropriate for government counsel, in the process of investigating suspected crime, to advise any person represented by counsel — potential defendant, witness, or anybody else — that his cho *741 sen counsel is not acting in his best interests. The citizen’s choice of, and relation with, his attorney is none of the investigating government’s business. It does not become the government’s business because it fears the citizen will tell his attorney of his conversation with government counsel. It is expected that the client will tell his attorney, and the government should not frustrate the communications incident to the attorney-client relationship. Nor can the government justify its intrusion on the ground it suspects the attorney of wrongdoing related to the matter under investigation. However well founded its suspicion, the government has no authority to chill the citizen’s right to the advice of counsel by this kind of Big Brotherism. 1
Arguably the government was correct this time in the predicate it asserted for giving unsolicited advice to Weiss about his relationship with the attorney of his choice. The next time the government may be wrong. To leave the impression in this case that the governmental intrusion was possibly acceptable leads the next government attorney to persuade himself of reasons for a similar intrusion in the next situation. Therefore, for my part I prefer to make unmistakably clear that this kind of governmental conduct is not acceptable. On its part, the government, rather than attempting to justify an impropriety, should make equally clear that it will not tolerate it.
. For other cases discussing governmental intrusion into the attorney-client relationship, see: Weatherford v. Bursey, 429 U.S. 545 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977); U. S. v. Morrison, 602 F.2d 529 (CA3, 1979) (indictment dismissed because of deliberate attempt to subvert the attorney-client relationship); Via v. Cliff, 470 F.2d 271 (CA3, 1972).