United States v. Jose Orlando Lopez, United States of America v. Jose Orlando Lopez

Jose Lopez was indicted for conspiracy to distribute and distribution of cocaine and heroin in violation of 21 U.S.C. Secs. 846 and 841(a)(1), and for aiding and abetting in violation of 18 U.S.C. Sec. 2. While awaiting trial, Lopez was detained with a codefendant, Antonio Escobedo, at the Federal Correctional Institution at Pleasanton.

Lopez retained attorney Barry Tarlow to represent him. Tarlow informed Lopez that he believed that the defendants had a viable entrapment defense and that, in any case, it was his general policy not to negotiate a plea with the government in exchange for cooperation.

Attorney James A. Twitty, who represented codefendant Escobedo, had agreed with Tarlow to coordinate a joint investigation on behalf of the defendants. In so doing, he often spoke to both Escobedo and Lopez by telephone and in person during visits to Pleasanton. In March or April of 1990, Escobedo telephoned Twitty and expressed his interest in reopening negotiations with the government. Concerned about his children, who he feared were being abused while in the custody of their mother, Lopez was anxious to be released from Pleasanton and thus echoed Escobedo's interest in a possible plea bargain.

Without informing Tarlow, Twitty twice traveled to Pleasanton in order to discuss the possibility of a plea bargain with Escobedo and Lopez. He spoke to both men about this possibility from five to nine times on the phone.

Lopez apparently did not want to retain another lawyer to negotiate with the government because he feared that doing so would cost him Tarlow's services, and Lopez wanted Tarlow to represent him in the event the case went to trial. Lopez also was concerned about the additional expense of having Tarlow conduct plea negotiations. Twitty accordingly contacted Lyons on behalf of both Lopez and Escobedo. Lyons claims that Twitty informed him that Lopez did not want Tarlow present at any meetings with the government because "Tarlow didn't represent his best interest in this particular context." Lyons avers that he did not press Twitty on this point, but instead assumed that Lopez was connected to a drug ring which was paying Tarlow's fees, and which would endanger his family if Tarlow learned about the negotiations with the government.

Twitty, however, maintains that during his first phone conversation with the prosecutor about the proposed negotiations, he emphasized that Lopez's reasons for excluding Tarlow had nothing to do with concerns about the safety of his family. He stressed that Tarlow's fees were not being paid by anyone with whom Lopez was in the drug business. According to Twitty, he informed the prosecutor that Lopez simply feared that if Tarlow knew about the plea negotiations, he would resign as Lopez's lawyer.

Recognizing the sensitivity of a meeting with Lopez without Tarlow's knowledge or consent, Lyons contacted the district court ex parte. The court referred the matter to a magistrate judge, who conducted an in camera interview of Lopez on May 21, 1990. The magistrate judge warned Lopez of the dangers of self-representation, informed him that he could have other counsel, and cautioned him that Twitty, as Escobedo's lawyer, could not represent him. Lopez insisted on going forward with the meeting, and signed a waiver prepared by the government. Lopez, along with Escobedo and his attorney Twitty, met with Lyons in the prosecutor's office.

On May 30, 1991, Lopez was taken once again before the magistrate judge, who verified that Lopez wanted to meet with the government a second time without Tarlow. The second meeting also took place in Lyons' office, and was again attended by Lyons, Lopez, Escobedo, and Twitty. Following this second meeting, Lyons sent Twitty a proposed plea agreement for Escobedo, a copy of which Twitty provided to Lopez. After talking with Twitty, the two men rejected the proposal.

Tarlow found out about his client's discussions with the government indirectly. In August 1990, Lyons talked with Harold Rosenthal, who was the attorney for a third codefendant. Lyons alerted Rosenthal to the fact that the government had been negotiating with Lopez without Tarlow's knowledge. Rosenthal contacted Twitty, who urged him to refrain from informing Tarlow for fear that doing so would "mess up the deal." Nevertheless, Rosenthal called Tarlow. On August 15, 1990, Tarlow was permitted by the district court to withdraw as Lopez's counsel.

Having retained substitute counsel, Lopez filed a motion to dismiss the indictment on September 27, 1990. Lopez alleged that the government infringed upon his Sixth Amendment rights as well as Rules of Professional Conduct of the State Bar of California Rule 2-100 (1988). Binding pursuant to Local Rule 110-3 in the Northern District of California, Rule 2-100 generally prohibits a lawyer from communicating with another party in the case without the consent of that party's lawyer.

After extensive briefing and six hearings at which Twitty, Lopez, and Lyons testified, the district court concluded that Lyons had violated Rule 2-100. United States v. Lopez, 765 F.Supp. 1433, 1456 (N.D.Cal.1991). The court rebuffed the government's attempts to invoke the "Thornburgh Memorandum," a Justice Department policy statement which purports to exempt federal litigators from compliance with the rule against communicating with represented individuals without the consent of their lawyers. Id. at 1445-50; see Memorandum from Dick Thornburgh, Attorney General, to All Justice Department Litigators (June 8, 1989). The court also determined that Lyons had not insulated himself from blame by obtaining the approval of the district court before each meeting, since he had "effectively misled" the court regarding Lopez's reasons for requesting to speak with him. Id. at 1452.

Since Lopez had been able to obtain competent replacement counsel for Tarlow, the court declined to say that the government's misconduct rose to the level of a Sixth Amendment violation. Id. at 1456. It also found, however, that Lopez had been significantly prejudiced, since he was effectively deprived of the counsel of his choice. Id. at 1461. Refusing to evaluate Lyons's actions apart from the Thornburgh memorandum which he invoked in his defense, the court condemned both as an egregious and flagrant "frontal assault on the legitimate powers of the court." Id. Rejecting less drastic remedies as ineffective, the district court invoked its supervisory powers in order to dismiss the indictment against Jose Lopez. Id. at 1464.

The government, on appeal, has prudently dropped its dependence on the Thornburgh Memorandum in justifying AUSA Lyons' conduct, and has thereby spared us the need of reiterating the district court's trenchant analysis of the inefficacy of the Attorney General's policy statement. See 765 F.Supp. at 1445-1450. The government instead argues that Rule 2-100 was not intended to apply to prosecutors pursuing investigations, that the contact with Lopez was authorized by law, that Rule 2-100 did not apply since Lopez was exercising his constitutional right of self-representation, and that Lopez waived his rights under Rule 2-100. Finally, the government contends that dismissal of the indictment was improper, even if Lyons did violate the ethical rule.

We review de novo the district court's conclusion that specific conduct violated court rules. In re Dresser Indus. Inc., 972 F.2d 540, 543 (5th Cir.1992); cf. Golden Eagle Dist. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir.1986) (district court's imposition of sanctions for violation of Rule 11 reviewed for abuse of discretion). The court's findings of fact, however, are reviewed for clear error. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992).

Rule 110-3 of the local rules of the Northern District of California requires that:

Every member of the bar of this court and any attorney permitted to practice in this court under Local Rule 110-2 shall be familiar with and comply with the standards of professional conduct required of members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of California, and decisions of any court applicable thereto; maintain the respect due courts of justice and judicial officers; [and] perform with the honesty, care, and decorum required for the fair and efficient administration of justice.

Rule 2-100 of the Rules of Professional Conduct of the State Bar of California governs communications with a represented party:

(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

....

(C) This rule shall not prohibit:

(1) Communications with a public officer, board, committee, or body;

(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party's choice; or

(3) Communications otherwise authorized by law.

Rule 2-100's prohibition against communicating with represented parties without the consent of their counsel is both widely accepted and of venerable heritage. The California rule tracks the language of Rule 4.2 of the American Bar Association's Model Rules of Professional Conduct, which in turn is nearly identical to its predecessor in the Model Code of Professional Responsibility, Disciplinary Rule 7-104(A)(1). A similar prohibition appears under Canon 9 of the ABA's Canons of Professional Ethics, which were promulgated in 1908. Not simply an American invention, the prohibition has roots which can be traced back to English common law. See, e.g., In Re Oliver, 2 Adm. & Eccl. 620, 622, 111 Eng.Rep. 239, 240 (1835) ("When it appeared that Mrs. Oliver had an attorney, to whom she referred, it was improper to obtain her signature, with no attorney present on her part. If this were permitted, a very impure, and often a fraudulent, practice would prevail.") (Lord Denman, C.J.). Today some version of the rule is in effect in all fifty American states.

The rule against communicating with a represented party without the consent of that party's counsel shields a party's substantive interests against encroachment by opposing counsel and safeguards the relationship between the party and her attorney. As Tarlow's withdrawal upon discovering the secret communication between Lopez and the government exemplifies all too well, the trust necessary for a successful attorney-client relationship is eviscerated when the client is lured into clandestine meetings with the lawyer for the opposition. As a result, uncurbed communications with represented parties could have deleterious effects well beyond the context of the individual case, for our adversary system is premised upon functional lawyer-client relationships.

The government argues, however, that Rule 2-100 was not intended to apply to prosecutors pursuing criminal investigations. Decisions of the state courts of California, which are binding on attorneys practicing in the Northern District of California through Local Rule 110-3, however, have held prosecutors to the rules prohibiting communications with represented parties. In People v. Sharp, 150 Cal.App.3d 13, 197 Cal.Rptr. 436 (1983), decided under the predecessor of Rule 2-100, the court noted that:

[b]ecause the prosecutor's position is unique--he represents authority and the discretion to make decisions affecting the defendant's pending case--his contact carries an implication of leniency for cooperative defendants or harsher treatment for the uncooperative. Such contact intrudes upon the function of defense counsel and impedes his or her ability to negotiate a settlement and properly represent the client, whose interests the rule is designed to protect.

Id. 197 Cal.Rptr. at 439-40. The court thus concluded that, by directing police agents to conduct a lineup without notifying the defendant's attorney, the prosecutor violated his professional ethical responsibilities. Id. at 440; see also People v. Manson, 61 Cal.App.3d 102, 132 Cal.Rptr. 265, 301 (1976) (holding prosecutor to ethical rules because he "is no less a member of the State Bar than any other admitted lawyer"), cert. denied, 430 U.S. 986, 97 S.Ct. 1686, 52 L.Ed.2d 382 (1977); see also Triple A Mach. Shop, Inc. v. State, 213 Cal.App.3d 131, 261 Cal.Rptr. 493, 499 (1989) (assuming Rule 2-100 can apply to prosecutors).1

The cases advanced by the government in support of its position are largely irrelative. Starting with United States v. Lemonakis, 485 F.2d 941 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1587, 39 L.Ed.2d 885 (1974), a number of courts have held that there is no breach of a prosecutor's ethical duty to refrain from communication with represented parties when investigating officers question or contact suspects prior to their indictment. See, e.g., id. at 956; United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981), and cert. denied, 454 U.S. 828, 102 S.Ct. 121, 70 L.Ed.2d 104 (1981); United States v. Ryans, 903 F.2d 731, 740 (10th Cir.) cert. denied, 498 U.S. 855, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990); United States v. Sutton, 801 F.2d 1346, 1366 (D.C.Cir.1986). Such cases have reasoned that criminal suspects should not be permitted to insulate themselves from investigation simply by retaining counsel. See, e.g., United States v. Jamil, 707 F.2d 638, 646 (2d Cir.1983); United States v. Hammad, 858 F.2d 834, 839 (2d Cir.1988); see also Pamela S. Karlan, Discrete and Relational Criminal Representation: The Changing Vision of the Right to Counsel, 105 Harv.L.Rev. 670, 701 (1992) ("A broad interpretation of the no-contact rule would provide a powerful incentive for criminal actors to seek relational representation because having an ongoing relationship with an attorney could insulate them from several of the most effective law enforcement techniques for investigating complex crime."). In addition, they have noted that during investigation of the case and prior to indictment,

the contours of the "subject matter of the representation" by [the suspect's] attorneys, concerning which the code bars "communication," [are] less certain and thus even less susceptible to the damage of "artful" legal questions the Code provisions appear designed in part to avoid.

Lemonakis, 485 F.2d at 956; compare Rule 2-100 (barring communication "about the subject of the representation").2

The government's insistence that there are no salient differences between the pre- and post-indictment contexts for purposes of Rule 2-100 is puzzling. The prosecutor's ethical duty to refrain from contacting represented defendants entifies upon indictment for the same reasons that the Sixth Amendment right to counsel attaches:

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.

Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion). In addition to focusing "the subject of the representation," indictment gives rise to a defendant's "right to rely upon counsel as a 'medium' between him and the State." Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985). Thus, the Sixth Amendment guarantee would be rendered fustian if one of its "critical components," a lawyer-client " 'relationship characterized by trust and confidence,' " could be circumvented by the prosecutor under the guise of pursuing the criminal investigation. United States v. Chavez, 902 F.2d 259, 266 (4th Cir.1990) (quoting Morris v. Slappy, 461 U.S. 1, 21, 103 S.Ct. 1610, 1621, 75 L.Ed.2d 610 (1983) (Brennan, J., concurring)); see also Patterson v. Illinois, 487 U.S. 285, 290 n. 3, 108 S.Ct. 2389, 2393 n. 3, 101 L.Ed.2d 261 (1988) ("Once an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect."). Thus, beginning at the latest upon the moment of indictment, a prosecuting attorney has a duty under ethical rules like Rule 2-100 to refrain from communicating with represented defendants.

The government next adopts the position that Lyons' conduct falls within the "communications otherwise authorized by law" exception to the rule against attorney communication with represented parties. See Rule 2-100(C)(3). The government argues that Lyons' contact with Lopez was authorized by statutes enabling prosecutors to conduct criminal investigations, and that the meetings were authorized by the magistrate judge's approval.

The government reasons that federal prosecutors operate pursuant to a "statutory scheme" that permits them to communicate with represented parties in order to detect and prosecute federal offenses. Citing 28 U.S.C. Secs. 509, 515(a) and (c), 516, 533 and 547, the government argues that Justice Department attorneys fall within the "authorized by law" exception to California Rule 2-100 and its counterparts.

The comment to California Rule 2-100 notes that:

Rule 2-100 is intended to control communications between a member [of the bar] and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule. There are a number of express statutory schemes which authorize communications between a member and person who would otherwise be subject to this rule.... Other applicable law also includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by the relevant decisional law.

(Emphasis supplied). Thus, the "authorized by law" exception to Rule 2-100 requires that a statutory scheme expressly permit contact between an attorney and a represented party. While recognizing the statutory authority of prosecutors to investigate crime, however, Rule 2-100 is intended to allow no more contact between prosecutors and represented defendants than the case law permits. We agree with the district court that the statutes cited by the government are nothing more than general enabling statutes. Nothing in these provisions expressly or impliedly authorizes contact with represented individuals beyond that permitted by case law. As discussed above, "the authority of government prosecutors and investigators to conduct criminal investigations" is "limited by the relevant decisional law" to contacts conducted prior to indictment in a non-custodial setting. Lyons' discussions with Lopez were not so authorized.

The government also maintains that by obtaining the prior approval of a magistrate judge, Lyons brought his conversations with Lopez within the realm of the "authorized by law" exception to California Rule 2-100. We agree that in an appropriate case, contact with a represented party could be excepted from the prohibition of Rule 2-100 by court order. See Rule 2-100 cmt. (Rule 2-100 forbids communication with represented persons "unless ... case law will override the rule."). But, as in other areas of the law, judicial approval cannot absolve the government from responsibility for wrongful acts when the government has misled the court in obtaining its sanction. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984) ("[T]he deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which the determination was based."); Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978) (warrant affidavit must be truthful "so as to allow the magistrate to make an independent evaluation of the matter"). When seeking the authorization of the district court, the prosecutor had an affirmative duty to avoid misleading the court. Rules of Professional Conduct of the State Bar of California Rule 5-200(B) (1988) ("In presenting a matter to a tribunal, a member ... [s]hall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law.").

The district court concluded that the magistrate judge approved the meeting between Lyons and Lopez in the mistaken belief, fostered by Lyons, that:

Tarlow[ ] was being paid by a third party with interests inimical to those of Lopez and that Lopez feared that if Tarlow became aware of his client's interest in cooperating with the government, he would pass the information on to others who would harm Lopez and/or his family.

765 F.Supp. at 1452. The district court thus concluded that the magistrate judge's approval could not legally authorize Lyons to meet with Lopez.

The district court found that Lyons materially misled the magistrate judge regarding the facts surrounding Lopez's request to speak directly with the prosecutor. We agree that the magistrate judge apparently did not have a full understanding of the facts surrounding Lopez's request. Without that understanding, she could not have made an informed decision to authorize the communications.

Although it is not necessary to our determination in this case to decide whether the district court erred in its finding that Lyons materially misled the magistrate judge, we suggest that the finding is not sustainable without resolving certain conflicts in the testimony of Twitty, Lyons, and Lopez as to what Lyons knew and when he knew it (the district court, for whatever reason, said it was not necessary to resolve these conflicts). On remand, were the district court to consider lesser sanctions than dismissal of the indictment, resolution of these conflicts would be essential.

The government makes several related arguments regarding the effect of Lopez's waiver on its ethical obligations. We note initially that it would be a mistake to speak in terms of a party "waiving" her "rights" under Rule 2-100. The rule against communicating with represented parties is fundamentally concerned with the duties of attorneys, not with the rights of parties. Lyons' duties as an attorney practicing in the Northern District of California extended beyond his obligation to respect Lopez's rights. Consequently, as the government concedes, ethical obligations are personal, and may not be vicariously waived.

The government also argues, however, that Lopez created a form of "hybrid representation" by waiving his right to counsel for the limited purpose of negotiating with the government, while retaining Tarlow as his counsel for all other purposes. Since Lopez would be unrepresented for purposes of discussions with the government, it would presumably not be a violation of Rule 2-100 for the government to communicate with him directly. We have in the past held, however, that "[i]f the defendant assumes any of the 'core functions' of the lawyer, ... the hybrid scheme is acceptable only if the defendant has voluntarily waived counsel." United States v. Turnbull, 888 F.2d 636, 638 (9th Cir.1989) (quoting United States v. Kimmel, 672 F.2d 720, 721 (9th Cir.1982)), cert. denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990). Representing a client in negotiations with the government is certainly one of the core functions of defense counsel, and there is no question that Lopez did not waive his right to counsel. In fact, the magistrate judge, following the hearing with Lopez, clearly communicated to Lyons that while Lopez was waiving his right to have counsel present while inquiring about the possibility of cooperating with the government, he was not waiving his right to counsel. The district court found Lopez did not wish to waive his right to have an attorney present. In Kimmel, we explained that:

[w]hen the accused assumes functions that are at the core of the lawyer's traditional role ... he will often undermine his own defense. Because he has a constitutional right to have his lawyer perform core functions, he must knowingly and intelligently waive that right.

672 F.2d at 721. While we are not immediately concerned with the constitutional dimensions of Lopez's communications with the government, it is clear that the magistrate judge's intervention could not, as a matter of law, have created a form of "hybrid representation." To the contrary, Lyons was notified by the court that Lopez was still represented by Tarlow, and consequently he could not evade his duty under Rule 2-100 on this basis.

For the same reason, we reject the government's claim that enforcing the ethical prohibition against communication with represented parties would interfere, under these circumstances, with the party's constitutional rights. The government relies on the doctrine established in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that it is unconstitutional to require a criminal defendant to be represented by an attorney. We see no conflict between Faretta and Rule 2-100. Of course, Rule 2-100 does not bar communications with persons who have waived their right to counsel, for by its express terms the rule only applies to "communications with a represented party." (Emphasis supplied). Because Lopez did not waive his right to counsel, Faretta is immaterial.

We therefore conclude that the district court was correct in holding that Lyons had an ethical duty to avoid communicating directly with Lopez regarding the criminal prosecution so long as Lopez was represented by Tarlow.

The district court dismissed the indictment under its inherent supervisory powers. Finding the government's conduct "flagrant and egregious," and believing that Lopez had been prejudiced through loss of his attorney of choice, the district court reasoned that no lesser sanction could adequately preserve judicial integrity and deter future governmental misconduct. 765 F.Supp. at 1461-64. We review the district court's exercise of its supervisory powers for an abuse of discretion. Barrera-Moreno, 951 F.2d at 1091.

There are three legitimate grounds for a court's exercise of supervisory power: "to implement a remedy for the violation of a recognized statutory or constitutional right; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and to deter future illegal conduct." United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.1991). We have recognized that exercise of supervisory powers is an appropriate means of policing ethical misconduct by prosecutors. United States v. McClintock, 748 F.2d 1278, 1285-86 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985); see also United States v. Williams, --- U.S. ----, ----, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992) ("[T]he court's supervisory power ... may be used as a means of establishing standards of prosecutorial conduct before the courts themselves."). We also have expressly recognized the authority of the district court to dismiss actions where government attorneys have "willfully deceived the court," thereby interfering with "the orderly administration of justice." United States v. National Medical Enters., Inc., 792 F.2d 906, 912 (9th Cir.1986) (quotations omitted).

It was therefore within the discretion of the district court to act in an appropriate manner to discipline Lyons if he subverted of the attorney-client relationship. We have no doubt but that federal courts are empowered to deal with such threats to the integrity of the judicial process. In the words of the Supreme Court, "[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 1697-98, 100 L.Ed.2d 140 (1988).

At the same time, however, even assuming that Lyons did act unethically, we question the prudence of remedying that misconduct through dismissal of a valid indictment. To justify such an extreme remedy, the government's conduct must have caused substantial prejudice to the defendant and been flagrant in its disregard for the limits of appropriate professional conduct. Barrera-Moreno, 951 F.2d at 1093.

In United States v. Owen,