Nov. 3, 2016
By Karen Rubin
When the government comes knocking during a grand jury investigation, can a G-man interview one of your executives without getting consent from counsel? Last month, the U.S. District Court for the District of Maine said “Yes,” and refused to suppress a suspect’s statements in the tax fraud case against him, holding that the ex parte chat didn’t violate attorney ethics rules.
The case shows how in a federal criminal investigation, an exception to the well-known “no-contact” rule can sweep away its protection.
Tax fraud … more than skin-deep
In U.S. v. Sabean
, IRS special agents interviewed a Maine dermatologist in his office, without his tax lawyer present. Almost two years later, the dermatologist was indicted
for taking more than $3 million in fraudulent medical deductions, health care fraud and illegally distributing prescription drugs.
The dermatologist moved to suppress the statements he made during the IRS interview, using an argument that the court called “rather novel”—namely, that federal statute
requires government lawyers to adhere to the legal ethics rules of the jurisdiction where they work, including, Maine’s version of Model Rule 4.2
, and that violating the no-contact rule amounted to a violation of his Fifth Amendment due process rights, requiring exclusion of his statements.
“Authorized by law” exception
Maine’s Rule 4.2, like its Model Rule counterpart, provides that a “lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the mater, unless the lawyer has the consent of the other layer or is authorized to do so by law
or a court order.”
Acknowledging that the IRS agents who interviewed the dermatologist were acting on behalf of government lawyers and knew that he was represented, the court decided that the interview fell under the “authorized by law exception.”
Comment  to Rule 4.2 says that ex parte “communications authorized by law” include “investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused.”
The district court judge in Sabean reasoned that the comment means that the bar of the “no contact” rule “begins when there is an ‘accused,’ thereby marking the actual commencement of criminal proceedings,” and that the pre-indictment, non-custodial interview did not require consent of the suspect’s lawyer.
The judge found additional support for this view in the Reporter’s Notes for Rule 4.2, which were prepared by the state task force that considered adoption of the Model Rules of Professional Conduct. The Reporter explained that “[t]raditional investigative activities of prosecutors are those ‘authorized … by law” for purposes of the exception to the no-contact rule.
The judge also cited a case
from the Third Circuit, and cases from district courts in Pennsylvania and North Carolina, which held that pre-indictment interviews do not violate the no-contact rule.
Suppression not an “appropriate remedy”
In addition, the court said that “while exclusion may be a remedy for due process violations of interview procedures, it is not a mandatory remedy,” and suppression is to be reserved for only the “most egregious violations of the no-contact rule.”
This case simply didn’t fall into the “egregious” category, the court ruled: the interview was investigative, not prosecutorial; and it wasn’t “scripted to reveal potential trial strategy or obtain uncounseled confession.”
Following the denial of the motion to suppress, the jury trial in the case was set to begin on November 1.
Content courtesy of The Law for Lawyers Today: Ethics, Professional Responsibility and More blog. Ohio State Bar Association member Karen Rubin is an attorney for Thompson Hine.
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