Sunday, July 20, 2014

Source: Criminal Defense Attorney Claims To Represent Multiple City Employees And Officials In Ongoing Federal Probe

Advance Indiana has learned from a reliable source something about an ongoing federal investigation of corruption within an Indiana municipality that is quite troubling. According to the source, FBI agents have been told by a prominent criminal defense attorney that they may not interview various city employees and officials with knowledge of matters under investigation without his consent and presence because the attorney supposedly has been retained to represent all of those employees and officials. If the source's information is accurate, it raises serious legal and ethical questions

First of all, a municipality cannot retain a criminal defense attorney to represent any municipal officials or employees in any ongoing criminal investigation arising out of their potential actions as officials or employees of the city. If you are under investigation for suspicion of committing a crime while carrying out your official acts as a public servant, you are responsible for hiring your own attorney, not the government. Secondly, joint representation of those city officials and employees by the same criminal defense attorney is only possible if each of those officials and employees retained the services of the criminal defense attorney and agreed to joint representation after being provided informed consent of the possibility that conflict of interests might arise during the course of the representation. Even if their consent to joint representation had been obtained, the attorney may still be barred from joint representation under the rules of professional conduct that govern the conduct of attorneys.

Rule 1.6 imposes an obligation on the part of the attorney to maintain the confidentiality of communications between the attorney and client. If one client reveals information that is detrimental to another, the attorney is faced with a conflict of interest that might compel him to withdraw his representation of one or both clients. Rule 1.7 further provides that a conflict of interest exists "if the representation of one client will be directly adverse to another client, or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client." In this particular case, the attorney's law firm has been retained by the city's mayor to provide various legal services on behalf of the city in the past and currently. Clearly, the law firm serves the city at the pleasure of the mayor and not any of the city's employees.

A recent 7th Circuit Court of Appeals' decision demonstrates how these rules can prohibit an attorney from representing criminal defendants even when the defendants have consented to joint representation. In U.S. v. Volpendesto et al.,  several defendants had been tried and convicted on numerous racketeering charges related to the operation of an illegal gambling business, as well as bombing and conspiracy to obstruct justice, among others. Prior to trial, government lawyers moved to disqualify one of the defendant's attorneys, Alex Salerno, because he had previously represented three of the defendant's co-defendants. The defendant, Mark Polchan, and two of his co-defendants waived any conflicts that may have arisen from Salerno's prior representation of them, while one of the co-defendants objected. Polchan retained co-counsel who would cross-examine the dissenting co-defendant and with whom Salerno offered assurances that he would provide no privileged information. The district court granted the government's motion to disqualify Salerno, observing that it "cannot know what information Salerno has learned from his previous client [Hay] that would be detrimental to that client in this case” and that “[c]ross-examination by an independent counsel would not safeguard against impermissible use of confidential information."

The 7th Circuit Court of Appeal affirmed the district court's ruling disqualifying Salerno. The Court found that an actual conflict of interest existed, not merely the possibility that one might arise during trial. "Hay had already decided to cooperate with the government and testify against his co-defendants when the government moved to disqualify Salerno," the court reasoned. "And Salerno had represented Hay on closely related state charges, including charges that involved Polchan, where he might have obtained damaging evidence about Hay's credibility or his guilt." Salerno could not represent Polchan without breaching his ethical obligations to his former client the Court concluded. I would add that Polchan and one of his co-defendants, Michael Sarno, received what amounted to life sentences as a result of their convictions. Sarno represented the top spot in the criminal enterprise according to the facts recited in the case. The district court had noted that Salerno had been "less than forthcoming" about his prior representation of Sarno. Polchan received a 60-year sentence, while Sarno received a 25-year sentence.

In the case at hand, it seems unlikely that all of the persons the FBI would want to question in its ongoing investigation actually consented and paid for the attorney in question to represent them in its ongoing investigation. It is even more unlikely that most of the persons the FBI would want to question committed any crimes. My concern is that the tactic employed by the criminal defense attorney to block FBI agents from questioning various city employees and officials is more about protecting and obstructing an ongoing federal investigation of the mayor by preventing them from learning information from others with knowledge of the matters being investigated. It is unclear why the FBI would allow the attorney to make such an absurd claim as to represent all of the potential witnesses. The agency certainly doesn't have a reputation for being bullied by criminal defense attorneys. Those employees who want to cooperate and speak to federal investigators should seek their own independent counsel and not merely rely on the representation of an attorney who may not in represent their interests in the matter.


Paul K. Ogden said...

This is an issue I pointed out when Barnes & Thornburg represented the State (the FSSA i particular) in the lawsuit against contractor IBM in the Medicaid privatization project when the law firm already represented ACS, the major subcontractor on the job. ACS was a major witness in the case, and quite likely otherwise would have been named as a party.

ACS agreed to waive the conflict, a fact that Barnes & Thornburg noted in its contract with the State. (Which was by the way executed long after Barnes & Thornburg began billing for work done on the case.) Well of course, ACS agreed to waive the conflict as the company knew their own attorneys weren't about to sue its own client as a co-defendant. Of course, B&T argued that it could erect a "Chinese Wall" at the firm to keep the side of the firm that represents ACS separate from the side that represents the State and whose attorneys might sue ACS. There is absolutely nothing in the disciplinary rules that allow a firm to do this to evade conflict of interest rules.

But here is the thing. There are situations in which, under the rules, conflicts of interest cannot be waived. That was true in the Medicaid lawsuit and that appears to be the case here. Of course, in the Medicaid lawsuit the Disciplinary Commission was all over it charging the B&T attorneys with violating the ethical conflict of interest rules. Of course I'm kidding...

Flogger said...

I am not an attorney so feel free to educate me. Why would the FBI need the defense attorney's consent to conduct an interview? I can understand the requirement to have a defense attorney present during any interview or questioning. I could also understand the defense attorney advising the client not to answer.

Gary R. Welsh said...

A law enforcement agency can ask to question anyone in connection with a criminal investigation. The person can refuse on the basis of the 5th Amendment right against self-incrimination or condition the questioning only in the presence of their attorney. What's alleged is that a defense attorney has told agents conducting the investigation that he represents certain individuals, none of whom can be questioned without his permission. That's supposedly the reason everyone has clammed up and not speaking to federal agents.

LamLawIndy said...

in some cases -- two dudes in a car sharing a joint -- representing co-defendants is not troubling as long as the co-defendants waive the conflict. in other cases -- multiple co-defendants in a meth-cooking and distribution ring -- representing more than one defendant is not advisable. the question an attorney has to ask himself is: how likely is it that I will end up sacrificing the interests of one client for another?

Anonymous said...

Whitestown. Please tell me it's Whitestown.asedici about

LamLawIndy said...

Anon 909, I doubt that it's Whitestown, since that municipality in Boone County is a "town" and not a "city." Gary's original post stated:

they may not interview various city employees

(emphasis added). Gary's post seems to indicate that the municipality would have to be a city unless he was using the term "city" in a general sense. Given that Gary is usually laser-focused when using legal/statutory terms, I would think he meant "city" in the legal/statutory sense.