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

America, UNITED STATES

Plaintiff-Appellant, LOPEZ, Orlando Defendant-

Jose

Appellee. America,

UNITED STATES

Plaintiff-Appellant, LOPEZ, Orlando Defendant-

Jose

Appellee.

Nos. 91-10393. Appeals,

United States Court

Ninth Circuit.

Argued May 1992. Submitted

Decided March 1993. Sept.

As Amended Strike,

Motion to Correct Sept.

Amend Denied Francisco, CA, Philipsborn, T. San

John Attys. for curiae CA for Crim. Jus- amicus tice. FLETCHER, POOLE, and T. G.

Before: NELSON, Judges. Circuit POOLE, Judge: Circuit I. conspiracy for

Jose was indicted distribute and distribution cocaine and §§ heroin violation of U.S.C. 846 and 841(a)(1), aiding abetting in and for viola- trial, § awaiting tion 18 U.S.C. While codefendant, Lopez was detained with a An- Escobedo, tonio at the Federal Correctional Institution at Pleasanton. Barry retained Tarlow

represent him. Tarlow informed he believed that the defendants had a viable that, ease, entrapment defense and it general policy negotiate plea was his not to exchange cooper- with the for ation.

Attorney Twitty, represent A. who James Escobedo, agreed ed codefendant had joint investigation Tarlow to coordinate a doing, behalf of the defendants. so he spoke Lopez by often Escobedo and both telephone person during and in visits to Plea- April santon. In March or Escobedo expressed telephoned Twitty and his interest Joseph Douglas Say- F. Wilson and Dennis reopening negotiations govern with the lor, IV, Justice, Dept, Washington, children, ment. about his who he Concerned DC, plaintiff-appellant. for being feared abused while in the were custo Osterhoudt, Francisco, CA, William L. San mother, dy of their was anxious to be defendant-appellee. for from Pleasanton and thus echoed released NV, Kelly, Vegas, possible plea Kevin M. Las for amicus Escobedo’s interest in a bar Attys. gain. curiae Nevada for Crim. Justice. Stillman, Walter Barthold and Charles Tarlow, Twitty informing twice Without City,

New York American amicus curiae in order to discuss the traveled to Pleasanton College Lawyers. Trial bargain possibility plea with Escobedo Brooks, Philip Deputy Lopez. spoke M. Public De- He to both men about this State fender, Francisco, CA, possibility San for amicus curiae from five to nine times on the phone. Office of the CA Public Defender. office, again by Lyons, to retain apparently not want attended Escobedo, negotiate govern- Lopez, lawyer Twitty. Following

another doing meeting, Lyons Twitty feared so would this second because he sent ment services, proposed agreement Escobedo, him want- cost copy Twitty represent provided Lopez. him in the event the of which ed Tarlow to Lopez Twitty, After talking went to trial. also was concerned with two case the men re- jected expense having proposal. the Tar- the about additional negotiations. Twitty low conduct ac- Tarlow out found about his client’s discus- Lyons cordingly on of both contacted behalf indirectly. sions with the Lopez Lyons and claims that Escobedo. August Lyons talked with Harold Ro- Twitty him did not Lopez informed that want senthal, who was the for a third present any meetings at Tarlow with the Lyons eodefendant. alerted Rosenthal to the repre- didn’t government because “Tarlow negotiat- fact that the had been particular his in this con- sent best interest ing Lopez knowledge. with without Tarlow’s press Lyons avers that he not text.” Twitty, urged Rosenthal contacted who him Twitty point, on this but instead assumed informing to refrain Tarlow for fear from drug a Lopez ring was connected to that doing up that so would “mess the deal.” fees, paying and which which was Nevertheless, Rosenthal called Tarlow. On endanger family if Tarlow learned August permitted by Tarlow was negotiations government. about the Lopez’s the district to as court withdraw however, Twitty, during maintains that counsel. phone first conversation with the counsel, Having Lopez retained substitute negotiations, empha- proposed about the he filed a motion to dismiss the indictment on Lopez’s excluding that Tar- sized reasons for September Lopez alleged that the to nothing low had do with concerns about government infringed upon his Sixth Amend- safety family. the of his He stressed that rights ment well as as Rules of Professional by anyone being paid Tarlow’s fees were not Conduct of State Bar of the California Rule drug whom was in with the business. (1988). Binding pursuant to Local

According Twitty, prose- he the to informed Rule 110-3 in Northern District of the Cali- Lopez simply that cutor feared that Tarlow fornia, generally prohibits a law- plea negotiations, about he would knew yer communicating from with another resign Lopez’s lawyer. as par- in the case without the consent of that ty’s lawyer. Recognizing sensitivity meeting knowledge or with without Tarlow’s briefing hearings six After extensive consent, Lyons contacted the district court ex testified, Lopez, Lyons Twitty, at which matter parte. The court to a referred Lyons had district court concluded magistrate who judge, conducted in cam- Lopez, 2-100. violated Rule United States 21,1990. Lopez May era interview of (N.D.Cal.1991). magistrate Lopez of the judge warned dan- government’s attempts court rebuffed the gers self-representation, informed him Memorandum,” “Thornburgh invoke the he other and cau- could have policy Department Justice statement which Twitty, lawyer, him tioned as Escobedo’s exempt litigators purports to federal represent him. insisted on could compliance against communi- with rule meeting, signed going forward with cating without individuals government. Lopez, prepared waiver 1445-50; lawyers. Id. at the consent of their attorney Twitty, along with and his Escobedo Thornburgh, from Dick At- see Memorandum prosecutor’s Lyons met with office. General, Department All torney Justice (June 1989). May 30, Litigators The court also On taken once had not insulated again judge, before the who veri- determined that approval obtaining himself from fied that wanted to meet blame meeting, Tarlow. of the district before each a second time without “effectively the court meeting place Lyons’ since he had misled” The second also took - Cir.1991), -, requesting Lopez’s reasons regarding 417, 121 L.Ed.2d 340 him. Id. at 1452. speak with Rule 110-3 of the local rules of the North- to obtain com- Lopez had been able Since requires that: ern District California Tarlow, replacement counsel petent say government’s Every that the member of the bar of this court court declined level of a Sixth any attorney permitted practice rose to the misconduct It Id. at 1456. also Amendment violation. this court under Local Rule 110-2 shall found, however, signifi- had been comply with the stan- familiar with effectively he was cantly prejudiced, professional required since conduct dards of choice. Id. at of his deprived of the counsel of the State Bar of California members Lyons’s Act, Refusing actions to evaluate in the Bar and contained Thornburgh memorandum apart of the Rules of Professional Conduct defense, California, in the court he invoked and decisions of which Bar of egregious flagrant thereto; as an applicable condemned both maintain the re- legitimate powers justice judicial on the of spect “frontal assault due courts of Rejecting officers; honesty, less drastic reme- perform the court.” Id. [and] ineffective, care, court invoked required dies as the district for the fair and decorum supervisory powers in order to dismiss justice. its of and efficient administration Lopez. at against Jose Id. the indictment Rule 2-100 of the Rules of Professional Con- governs duct of the State Bar of California represented party: communications with a appeal, prudently has government, (A) client, representing a mem- While a Thornburgh dropped dependence on the its directly ber shall not communicate or indi- justifying Lyons’ AUSA Memorandum subject rectly representa- of the conduct, about thereby spared the need and has us to tion with a the member knows reiterating district court’s trenchant of lawyer another in the mat- Attorney analysis inefficaey of the of the ter, unless the member has the consent of policy 765 General’s statement. See lawyer. the other 1445-1450. The instead ar- at gues that Rule 2-100 was not intended investigations, apply prosecutors pursuing (C) prohibit: This rule shall not Lopez was authorized that the contact with (1) public with a offi- Communications law, apply did not since that Rule 2-100 committee, cer, board, body; or right exercising his constitutional was (2) by party a Communications initiated self-representation, and that waived seeking representation or from an advice Finally, rights 2-100. under Rule choice; lawyer party’s independent government contends that dismissal of the improper, indictment was even otherwise autho- Communications rule.

violate the ethical by law. rized prohibition against Rule 2-100’s communicat- II. represented parties ing with without the con- widely accepted their counsel is both novo the district court’s sent of review de We heritage. specific violated court and of venerable The California conclusion that conduct Inc., language of Rule 4.2 of the 972 F.2d rule tracks rules. In re Dresser Indus. (5th Cir.1992); Eagle Bar Association’s Model Rules of American 543 Golden cf. Conduct, nearly Corp., which in turn is Corp. Burroughs 801 F.2d Professional Dist. (9th Cir.1986) (district predecessor im to its the Model court’s identical 1538 Responsibility, Disci- position for violation of Rule 11 Code of Professional of sanctions 7-104(A)(l). discretion). prohibi- A plinary Rule similar for reviewed abuse fact, however, ABA’s appears under Canon 9 of the findings court’s are re tion Ethics, were of Professional which viewed for clear error. States v. Canons United Barrera-Moreno, simply Not an Ameri- promulgated invention, prohibition has roots which can Decisions of the state courts of which English binding on attorneys practicing can be traced back to common law. Oliver, See, the Northern e.g., through District of In Re Adm. & Eccl. California (1835) (“When 110-3, however, Local Rule prose- Eng.Rep. held it cutors to the prohibiting rules communica- appeared attorney, Mrs. Oliver had represented parties. tions with referred, People improper whom she it Sharp, Cal.App.3d Cal.Rptr. signature, pres- her with no obtain predecessor decided under the part. permitted, her If this were ent on Rule the court noted that: fraudulent, very impure, practice and often a (Lord C.J;). prosecutor’s, Denman, position [b]ecause the is prevail.”) To- unique represents authority day and the some version of the rule is in effect in all —he discretion to make affecting decisions fifty American states. pending defendant’s case—his contact car- against communicating The rule with a implication ries an leniency coopera- represented party without consent of that tive defendants or harsher treatment party’s party’s counsel shields substantive uncooperative. Such contact intrudes against by opposing interests encroachment upon the function of defense counsel and safeguards relationship counsel and be- impedes ability his or her negotiate attorney. tween the her As Tar- properly represent settlement and upon discovering low’s withdrawal the secret client, whose designed interests the rule is gov- communication between and the protect. exemplifies well, ernment all too the trust Id. Cal.Rptr. 197 at 439-40. The court thus necessary attorney-client for a successful re- that, by directing police concluded agents to lationship is when the eviscerated client is lineup conduct a notifying without the defen meetings lured into clandestine with the law- attorney, dant’s violated his result, yer opposition. for the As a uncurbed professional responsibilities. ethical Id. at represented parties communications with 440; Manson, People see also v. 61 Cal. have beyond could deleterious effects well 102, 265, (1976) App.3d Cal.Rptr. 132 301 ease, the context of the individual for our (holding prosecutor to ethical rules because adversary system premised upon is function- he “is no less a member of the Bar lawyer-client relationships. al any than lawyer”), other admitted cert. de nied, 986, 1686, 430 U.S. 97 S.Ct. 52 L.Ed.2d A. (1977); 382 Triple Shop, see also A Mach. however, government argues, State, The 131, Cal.App.3d Inc. v. 213 261 Cal. 493, apply that Rule 2-100 Rptr. (assuming was not intended to 499 prosecutors pursuing investigations. apply prosecutors).1 criminal can Conduct, government speculated rejected argument 1. The has for the first fessional appeal time on that the California attorneys practicing Rules of Pro- in the Northern District validly adopted by fessional Conduct were not subject are not to the ABAModel Code because the Northern District of and that Lo- specifically adopt the district’s rules did not adopted predates cal Rule 110-3 as California’s Eng'r, code. Paul E. Iacono Structural Inc. v. adoption of Rule 2-100. The 435, con- (9th Cir.), Humphrey, 122 F.2d 438-39 cert. they cedes that failed to raise this issue before denied, 851, 162, 104 S.Ct. 78 L.Ed.2d court, argues the district but that we dis- Moreover, 148 Rule the Cali 7-103 of pense with the rule that the issue is waived Conduct, fornia Rules of which was Professional purely legal because it is a issue. We decline to 2-100, prior adoption effect to the of Rule also so, however, government’s argument do prohibited communications with rests on the claim that the Northern District has parties in almost terms. identical specifically adopted Rule and that The has called our attention to adopted proper Rule 110-3 was Local without Bd., (3d Baylson Disciplinary v. 975 F.2d 102 notice and comment. Both of these claims are 1992), nature, beyond Cir. which held that it factual in and we decline to review them rule-making authority proper development of the district court to without the of a See record. adopt governing disciplinary Marketing, Properties, a state rule the abil Consolidated Inc. v. Marvin Inc., 1183, (9th Cir.1988). ity prosecutors grand jury 854 F.2d 1187 of federal to obtain a event, previously upheld subpoena. we at deci the Northern Id. 111. The Third Circuit’s adoption District’s of the California of Pro- sion was founded on the’ fact that the rule in Rules 1460 during investigation noted that of the case advanced

The cases indictment, prior largely irrelative. support position of its h Lemonakis, Starting wit United States “subject contours of the matter of the denied, (D.C.Cir.1973), cert. F.2d 941 415 485 suspect’s] representation” attor- [the 1587, 989, L.Ed.2d 885 39 94 S.Ct. U.S. concerning neys, which the code bars (1974), of courts have held a number “communication,” less certain and [are] prosecutor’s ethical there is no breach damage susceptible even to the thus less rep duty from communication to refrain legal questions provi- “artful” Code investigating officers parties when resented appear designed part to avoid. sions prior suspects to their question or contact Lemonakis, 956; compare at Rule 485 F.2d 956; See, e.g., at id. United indictment. (barring communication “about (9th 1323, Kenny, 645 F.2d States v. subject representation”).2 920, Cir.), 101 S.Ct. cert. denied government’s insistence that there are 3059, and cert. 69 L.Ed.2d denied pre- no salient differences between the 70 L.Ed.2d 104 U.S. post-indictment purposes contexts for of Rule (1981); Ryans, States v. 903 F.2d United prosecutor’s puzzling. 2-100 is ethical Cir.) duty contacting represented to refrain from (1990); Unit upon defendants entities indictment for the Sutton, 801 F.2d ed States same reasons that the Sixth Amendment (D.C.Cir.1986). cases have reasoned Such right to counsel attaches: suspects permit not be that criminal should judicial pro- The initiation criminal investigation themselves from ted to insulate ceedings is far from a mere formalism. It See, e.g., simply by retaining counsel. Unit starting point system is the of our whole (2d Jamil, ed States v. justice. adversary only criminal For it is Hammad, Cir.1983); 858 United States government then that the has committed (2d 834, Cir.1988); Pamela F.2d 839 see also prosecute, only itself to then that the Karlan, S. Discrete and Relational Criminal positions government adverse and de- of Representation: Changing The Vision of have solidified. fendant Counsel, 670, Right 701 105 Harv.L.Rev. (1992) (“A interpretation Illinois, of the no- 682, 689, broad Kirby v. 406 U.S. 92 S.Ct. provide powerful 1877, a incen 1882, contact rule would (plurality 32 L.Ed.2d 411 criminal to seek relational subject tive for actors opinion). focusing In addition to “the representation having ongoing re representation,” gives because indictment rise attorney lationship “right rely upon with an could insulate to a defendant’s counsel them from of the most effective law him several as a ‘medium’ between and the State.” Moulton, 159, 176, investigating techniques Maine v. 474 106 enforcement U.S. crime.”). 477, 487, Thus, addition, they L.Ed.2d complex have S.Ct. 88 481 pre-indictment setting. applies question with Fed.R.Crim.P. rule even in a was inconsistent 17. (district may adopt See Fed.R.Crim.P. 57 Three circuits have held that in custodial situa tions, "not inconsistent with” the Federal Rules rules prohibits prosecutors the ethical rule from Procedure). time, the of Criminal At the same interviewing defendants in the absence of and recognized "[a]mong that the rules Third Circuit t withou the consent of their counsel: United rule-making authority fall under the local which Thomas, 110, (10th Cir.), 474 112 States F.2d regulating the district courts are rules of the conduct of 2758, denied, 932, 412 37 cert. U.S. 93 S.Ct. attorneys practicing before them.” Killian, (1973), L.Ed.2d 160 United States v. 639 Baylson is thus not in conflict 975 F.2d at 206, (5th Cir.), F.2d 210 holding applicable with our that Rule '2-100 is 1021, 3014, 101 S.Ct. requiring prosecu via Local Rule since Durham, States v. 475 F.2d 211 United communicating repre tors to refrain from Hammad, 1973). See also United States v. Cir. only defendants is not consistent with the sented rules of criminal Cir.1988) (2d (refusing 858 F.2d implied by procedure, them. but 11(e)(1) applicability to the moment of negotiations "bind[] the Code’s (plea See Fed.R.Crim.P. gov attorney conducted between for the return lies be indictment” since "an indictment’s defendant). attorney for the prosecu ernment and substantially within the control of the tor”). issue, Although we not reach the we note do whether the that courts have been divided over guarantee the Sixth Amendment scheme or case law will override the rule. compo rendered fustian one its “critical There are a express number of statutory “ nents,” lawyer-client ‘relationship a charac schemes which authorize communications confidence,’” by terized trust and could be a person between member and who would by subject circumvented under the otherwise be to this rule.... Oth- guise pursuing investigation. applicable the criminal er law also includes the author- Chavez, ity government prosecutors United States v. and investi- (4th Cir.1990) (quoting gators Slappy, Morris v. to conduct investigations, criminal ' n as limited 1610, 1621, by 108 S.Ct. 75 L.Ed.2d the relevant decisional law. (1983) (Brennan, J., concurring)); see (Emphasis supplied). Thus, the “authorized Illinois, Patterson v. also. by exception law” requires n. n. 101 L.Ed.2d statutory expressly scheme permit contact (1988) (“Once lawyer, has a accused between an represented par- and a safeguards distinct set of constitutional ty. recognizing statutory While authori- preserving sanctity aimed at of the attor ty prosecutors crime, investigate howev- effect.”). ney-client Thus, relationship takes er, Rule 2-100 is intended to allow no more beginning upon at the latest the moment of prosecutors contact between represented indictment, prosecuting attorney duty has a defendants than the permits. case law We under ethical Rule rules like 2-100 to refrain agree with the district court that the statutes communicating represented defen by cited nothing more dants. general enabling than Nothing statutes. provisions expressly these impliedly au- B. thorizes contact with individuals adopts position next beyond permitted by ease law. As dis- Lyons’ conduct falls within the “commu- above, authority cussed “the excep- nications otherwise authorized law” prosecutors investigators to conduct against attorney tion to the rule communica- investigations” criminal is “limited represented parties. tion with 2- See Rule relevant decisional law” to contacts conduct- 100(C)(3). government argues prior ed to indictment in a non-custodial set- Lyons’ contact with was authorized ting. Lyons’ discussions with were enabling prosecutors statutes to conduct not so authorized. investigations, meetings criminal and that the by magistrate

were authorized the judge’s 2. approval. government The also maintains that by obtaining prior approval magis the of a 1. judge, Lyons brought trate his conversations government The reasons that fed Lopez within the realm of the “autho prosecutors operate pursuant eral to a “stat exception rized 2- law” to California Rule utory permits scheme” that them to commu ease, agree appropriate We represented parties nicate with in order to represented party contact with a could be prosecute and detect offenses. federal Cit excepted prohibition the of Rule 2-100 515(a) ing (c), 516, §§ 28 U.S.C. (Rule by court cmt. order. See Rule 2-100 government argues the that Justice represent 2-100 forbids communication with Department attorneys fall within the “autho persons ed “unless ... will case law override exception rized law” 2- California Rule rule.”). But, law, inas other areas of the counterparts. 100 and its judicial approval govern cannot absolve the The comment to California Rule 2-100 responsibility wrongful ment from acts notes that: government when the has misled the court in obtaining Rule 2-100 is intended to control-communi- its sanction. See United States v. Leon, 897, 914, 104 cations between a [of bar] member S.Ct. (1984) (“[T]he

persons repre- the member knows to be deference ac statutory sented magistrate’s finding probable counsel unless a corded to a in- inquiry sanctions..than of the preclude into the er lesser dismissal not cause does dictment, falsity of the affidavit on resolution of conflicts would knowing or reckless these based.”); determination be which essential. Delaware, Franks v. (1978) (war- 2674, 2681, L.Ed.2d 667 C. must be truthful “so as to allow rant affidavit independent magistrate make an eval- the. government makes several relat The matter”). seeking When uation of the regarding Lopez’s arguments ed the effect court, prose- of the district authorization obligations. ethical We note waiver on its duty affirmative to avoid mis- cutor had an speak initially that it would be a mistake to leading the court. Rules of Professional “rights” party “waiving” her terms Rule of the Bar of California Conduct against The rule commu under Rule 2-100. (“In 5-200(B) (1988) presenting a matter to a nicating represented parties is funda [sjhall tribunal, ... a member not seek mentally concerned with the duties of attor judicial jury by judge, officer or mislead rights parties. Lyons’ neys, not with the law.”). statement of fact or an artifice or false attorney practicing in the North duties as mag- beyond concluded that the extended The district court ern District California meeting judge approved obligátion respect Lopez’s rights. between istrate his belief, concedes, Lyons in the mistaken fos- Consequently, as the by Lyons, tered that: obligations personal, ethical vicariously waived. being paid by a third Tarlow[ ] was inimical to with interests those of however, argues, also that if be- and that feared Tarlow “hybrid representa created a form of coop- of his client’s interest in came aware by waiving right to counsel for the tion” erating government, would with the he purpose negotiating gov with the limited pass the information on to others who ernment, retaining while Tarlow as his coun family. harm and/or purposes. sel for all other Since F.Supp. at court thus district purposes unrepresented would be of dis ap- magistrate judge’s concluded that government, pre it would cussions with legally Lyons to proval could not authorize sumably not be a violation of Rule 2-100 for Lopez. meet with with him to communicate found that mate- The district court however, held, past directly. We have judge regarding rially misled the assumes “[i]f the defendant surrounding Lopez’s request the facts lawyer, hybrid ... functions’ of the ‘core directly prosecutor. speak We acceptable only if the defendant scheme is agree magistrate judge apparently that the voluntarily has waived counsel.” United understanding not have a full of the facts Turnbull, F.2d States v. surrounding Lopez’s request. Without Cir.1989) Kimmel, (quoting United States understanding, made an she could not have (9th Cir.1982)), 720, 721 cert. de 672 F.2d to authorize the communi- informed decision nied, 825, 78, 112 L.Ed.2d 111 S.Ct. U.S. cations. (1990). Representing negotia client in certainly necessary government is one of Although it not to our deter- tions with the is counsel, of defense and mination in case to decide the the core functions this whether question waive finding Lyons there is no that did not district court in its that erred fact, magistrate right In materially magistrate judge, we to counsel. misled following hearing Lopez, finding judge, suggest is not sustainable Lyons clearly to that while resolving in the tes- communicated without certain conflicts waiving right to have counsel timony Twitty, Lyons, as to (the inquiring possibility Lyons present while about knew he knew it what and when reason, court, cooperating government, he was said it district for whatever conflicts). right The district waiving his to counsel. necessary to resolve these not was not remand, not wish to waive his court found did On were the district court to consid- attorney present. right Finding government’s to have an Kim- ers. conduct “fla- mel, explained grant egregious,” we that: believing that Lo- pez prejudiced through had been loss of his the accused assumes functions that [w]hen choice, attorney of the district court reasoned lawyer’s are at the core of the traditional that no adequately lesser sanction could pre- ... role he will often undermine his own judicial integrity serve and deter gov- future defense. Because he has a constitutional ernmental misconduct. 765 at 1461- right lawyer perform to have his core func- 64. We review the district court’s exercise of tions, knowingly intelligently he must supervisory powers its for an abuse of discre- right. waive Barrera-Moreno, tion. 951 F.2d at 1091. 672 F.2d at 721. While we are not immedi- ately concerned with the constitutional di- legitimate grounds There are three Lopez’s mensions of communications with the for a supervisory court’s exercise of power: government, it is clear that implement “to remedy for the violation of a not, judge’s intervention could as a matter of recognized statutory or right; constitutional law, “hybrid represen- have created form of preserve judicial integrity by ensuring contrary, Lyons tation.” To the was notified that a appropriate conviction rests on consid was still validly jury; erations before a and to deter Tarlow, consequently he could not illegal future conduct.” United States v. duty evade his under Rule 2-100 on this Cir.1991). Simpson, 927 F.2d basis. recognized We have supervi that exercise of reason, reject For govern- the same we sory powers appropriate polic is an means of enforcing prohi- ment’s claim that the ethical ing by prosecutors. ethical misconduct Unit against represent- bition communication with McClintock, ed States v. 748 F.2d interfere, parties ed under these cir- (9th Cir.1984), cumstances, party’s constitutional (1985); 106 S.Ct. 88 L.Ed.2d 61 see also rights. relies on the doc- - Williams, -, United States v. U.S. trine established Faretta v. 422 -, 112 S.Ct. 45 L.Ed.2d 562 (1992) (“[T]he supervisory power court’s ... require that it is unconstitutional to a may establishing be used as a means of represented by criminal defendant to be prosecutorial standards of conduct before the attorney. We see no conflict between Faret- themselves.”). courts express We also have course, ta and Rule 2-100. Of ly recognized authority of the district persons does not bar communications with court to dismiss actions where counsel, right who have waived their attorneys “willfully court,” deceived the express only applies its terms the rule thereby interfering orderly with “the admin represented party.” “communications with a justice.” istration of United States v. Na (Emphasis supplied). Because Enters., Inc., tional Medical right waive his is immate- Faretta (9th Cir.1986) omitted). (quotations rial.

It was therefore within the discretion appropriate of the district court to act in an D. discipline Lyons manner he subverted of We therefore conclude that the district attorney-client' relationship. We have no holding court was correct in had empowered doubt but that federal courts are duty communicating ethical to avoid di- integrity to deal with such to the threats rectly Lopez regarding the criminal judicial process. In the words of the prosecution long so as represent- “[fjederal Court, Supreme courts have an ed Tarlow. independent ensuring in interest that crimi nal trials are conducted within ethical III. profession legal standards of the and that proceedings appear district court dismissed the in fair to all who observe States, dictment supervisory pow- under its inherent them.” Wheat v. United the district court’s 100 ment. We sensitive to 108 S.Ct. none sanc- concerns that of the alternative L.Ed.2d impress it available to are as certain to tions however, time, even the same At in government with resoluteness our unethically, we Lyons act assuming that standards holding prosecutors to the ethical remedying that prudence of question the regulate legal profession as a which in through of a valid dismissal misconduct At the at 1461-64. whole. See F.2d justify extreme reme To such an dictment. time, that, there we are confident when same must have government’s conduct dy, the showing prejudice to the no of substantial is prejudice to the defendant caused substantial defendant, sanctions, holding lesser such as disregard for the flagrant in its and been contempt or to the referral conduct. appropriate professional limits disciplinary proceedings, can be state bar for Barrera-Moreno, 951 F.2d at 1093. discipline govern- adequate punish Owen, 580 F.2d 365 In United States v. attorneys attempt to circumvent ment who that, (9th Cir.1978), adopted we the view profession. of their the standards indictment justify dismissal of the order to in- Accordingly, dismissing order powers, there supervisory court’s under the RE- is VACATED. The case is dictment prejudice to the accused must “be some proceedings consistent with MANDED alleged misconduct.” Id. virtue of the acts of opinion. this explained preju that the idea at 367. We conduct government’s dice entails that FLETCHER, Judge, Circuit with whom impact least some on the verdict “had at NELSON, joins, Judge T.G. Circuit preju defendant’s] to [the thus redounded concurring: (quoting States v. Id. at 368 United dice.” in this conduct of the At issue case is the (5th Cir.), Acosta, F.2d government. Because it does not seem story began that the ended with me (1976)); also United States L.Ed.2d 373 see misbehavior, compelled to prosecutor’s I feel Larrazolo, Cir. F.2d Mr. say a few words about the actions of 1989) (“a actually preju defendant must be Tarlow, Twitty, Mr. and the. its in order for the court to invoke diced judge. powers indictment supervisory to dismiss an told at the outset of Tarlow (emphasis prosecutorial misconduct.” “general poli it representation that was his n added)). Thus, Owen, i found no we negotia cy” represent not to clients grounds for the defendant dismissal where contemplate cooperation tions any govern could not show effect from the Lopez, 765 government. United States “beyond the-vague claim of a ment’s actions (N.D.Cal.1991). In F.Supp. attorney. relationship strain in his with” his court, declaration submitted to the district 580 F.2d at 368. such Tarlow elaborated that he considers specifically found that The district morally negotiations “personally and ethical attorney Lopez replace Tarlow found offensive,” that, ly while he would following very able and his withdrawal “is Lopez, conveyed cooperation an offer of representa- provide outstanding him with will willing and bet “another would be tion.” 765 at 1456. Without arrange informant activities.” ter able to way wishing disparage importance appar Although at 1440 n. 12. Tarlow Id. we fail criminal defendant’s choice say ently explicitly, Lopez so took did not cir- to see Tarlow’s in these how withdrawal policy to mean that statement cumstances could said to have substantial- negotiate, wanted to Tarlow ly prejudiced Lopez in his defense. altogether. representing him withdraw at 1439-40. See id. Consequently, if the district even his chil- finding about court’s misled the court is Concerned the welfare correct, might not thought he his wife we the district court dren because conclude that caring properly, Lopez them decided dismissing indict- for abused its discretion in

1465 explore possibility that he of withdraw for reasons of conscience because it wanted by cooperating an earlier release with the “unfairly disappoints the client’s reasonable (cid:127) government. Lopez also wanted Tarlow to expectations.”) repugnance Because moral try the case if it went to trial. Faced with a is not listed the California Rules as a may difficult dilemma that he not have antici- ground permissive withdrawal, for and be counsel, pated when he retained Tarlow as cause a criminal lawyer may defense not be decided to meet with the entitled to assert moral repugnance plea unrepresented. I whether Tarlow’s question event, bargaining any certain, not, it is the,best “general policy” inwas interests of matter, were a court to consider the generally, Lopez’s specifically. his clients general policy prevail over a attorney

A criminal pursue who is bound preliminary plea client’s wish to dis Rules of Professional Conduct of the State government. cussions with the See John W. (“California Rules”) Hall, Bar of California Jr., Responsibility Professional professional standards of California’s con- (1987) (“If Lawyer 14.2, § Criminal at 472 duct, as was Tarlow virtue of the North- it, the nature of the case warrants defense 110-3, ern Local Rule District’s is not free to explore plea counsel should discussions with representation terminate his or her of a prosecutor.”); Balcom, Mason v. 531 cf. will, personal client at or for mere consider- (5th Cir.1976) (ineffective F.2d 717 assistance ations, permission or without part due to counsel’s failure to bar Castillo, 36, People court. Cal.App.3d v. 233 gain benefitted); when his client 382, Cal.Rptr. 284 392 review Frierson, People 803, v. 39 Cal.3d 218 Cal (Cal. 1991) 14, 1991 Cal. LEXIS 5144 Nov. .Rptr. 73, 396, (1985) 705 P.2d 905, (citing People Murphy, Cal.App.3d v. (listing fundamental decisions over which the 295, Cal.Rptr. (1974)); see also defendant, rather than his or her (attorneys Local prac- N.D.Cal. control; retains ultimate “the decision wheth ticing in comply Northern District must plead guilty er to to a ... lesser offense professional “the standards of conduct re- frequently strategic concerns, reflecte but a quired of members of the State Bar of Cali- defendant personal nonetheless retains con Act, fornia and contained in the Bar plea.”); trol over such a Cal. Rule 3- the Rules of Professional Conduct of the 510(A)(1)(“A member [of the state shall bar] any State Bar of and decisions of promptly communicate ... [a]ll terms and thereto”). applicable Notably, al- conditions of offer made to the client in a though under the ABA Model Rules of Pro- matter.”); criminal ABA Model Rule 1.4 (“ABA Rules”) fessional Conduct Model an (“A lawyer prof comment who ... a receives attorney may representation withdraw from plea bargain fered iñ a criminal case should upon pursuing objec- the client “insists promptly inform the client of its substance lawyer repugnant tive that the considers prior unless discussions with the client have imprudent,” comparable provision appears no proposal unaccep left it clear that the will be Compare the California Rules. ABA Mod- table.”) 1.16(b)(3) 3-700(C). el Rule with Cal. Rule Ideally, sufficient candor and trust are Slappy, also See Morris n. present attorney-client relationship in an 1623 n. compelled such that a defendant does not feel (Brennan, J., concurring) (noting that meetings to resort to clandestine representation continuous of a criminal de- Indeed, government. the model of a success- throughout proceedings fendant trial court “ attorney-client relationship, expounded ful as opportunity ‘affords the best for the devel- Washington, in Strickland v. is one in which opment attorney- close and confidential are ... ... relationship’”) “[Counsel’s client actions based (quoting ABA Stan- Justice); strategic informed choices made the de- dards Criminal Harold Lew- S. is, Jr., supplied by Commentary: Suffering fendant and on information Shaffer’s Client, Suffering Lawyer, Freedman’s 38 defendant.” 129,133 (1984); (criticizing Cath.U.L.Rev. n. 13 L.Ed.2d 674 see Mod- also 1.16(b)(3) Kincheloe, allowing el Rule Campbell Cir.1987) (“The appar- the Significantly, are not to had client’s wishes entirely.”), ently position plea agree- taken the that a ignored be (1988). possible only in event ment would be the that cooper- far relationship Lopez Lopez agreed fell and to both Escobedo with Assuming at 1439. that the ideal. ate. Id. he felt such short of interest, in cooperation was own best his Twitty, Es- As for counsel for codefendant pressure Escobedo thus had an incentive to cobedo, was, undeniably, less his conduct cooperate Lopez to as Under well. these Lopez exemplary. Twitty had access to than circumstances, wrong person Twitty the was facility, Es- Pleasanton correctional where at acting during plea Lopez’s to be behalf incarcerated, Twitty was also because cobedo government. discussions with the responsible may what have been was “joint Finally, magis- investigation” of the two there are the actions of the ill-conceived Lopez’s prob- judge Although cases. view of trate to at the defendants’ consider. Tarlow, Twitty may hearing prosecutor magistrate have intervened before the the lem intentions, benign say anything not Lopez’s apparently in affairs but about his ultimately payment up representing suspicion regarding he ended two de- of the source fees, potentially conflicting had in- fendants who for Tarlow’s the district court found Although Lopez magistrate operating he informed that that the under terests. “was Twitty lawyer, assumption” not act as none- he could mistaken that Tarlow “be- apparently Lopez ing paid by a third theless advised both with interests inimi- during meeting Lopez.” at Escobedo first cal to those may pressured Lopez prosecutor government, previously have Because the had com- provide theory information dur- municated presiding to to such to the ing judge at 1442-43. the second. district he failed to because disa- magistrate of her erroneous buse as- contemplates The Sixth Amendment sumption, the found that district court “untrammeled the assistance counsel be magis- “effectively misled” the unimpaired requiring ... that one The district further found trate. lawyer simultaneously represent con should magistrate did not ask certain States, flicting interests.” Glasser United questions appeared critical when he before 457, 465, 86 L.Ed. S.Ct. her, namely, were whether Tarlow’s fees (“A 3-310(B) (1942); see also. Cal.Rule being paid by conflicting fact someone with a member the state shall not concur [of bar] interest, or whether feared for his or rently represent interests con clients whose family’s safety should Tarlow learn of the flict, except with their informed written con negotiations. pending plea at 1442 n. Id. 1.7(b) (“A sent.”); lawyer ABA Model Rule 1452 n. 38. represent representa not client if the shall may materially client limited tion of that be with a diffi- was confronted lawyers’ responsibilities Unfortunately, another cult situation. her decision to reasonably ... lawyer client ... unless allow meet with the representation ultimately Lopez’s losing not ad believes will led Tarlow as his versely very sought affected[ ] and ... the client consents had result consultation.”) found, attorney rep Although, after When an avoid. as the district court interests, conflicting resents defendants with her actions have been “understandable” assumption “the evil ... is what the advocate finds of her view Tarlow was compelled doing, being paid party, himself from not third id. interested at refrain only possible pretrial judgment may trial but also at as to her have benefitted impact plea negotiations____ thorough questioning assess the a more [T]o attorney’s regarding arrangement a conflict of the fee interest' on with Tarlow. tactics, negotia options presented options, might different decisions Some virtually impossible.” tions would be Hollo had she convinced themselves been Arkansas, 475, 490-91, way safety family and his were at 1173, 1181-82, 55 L.Ed.2d 426 stake. guideline sentencing, era of this when applicable guideline often assumes more conviction, importance than the crime of it is

not unreasonable that defendant would government might

want to find out what the conspired

offer. Various forces to render inquiry exceedingly Lopez. difficult for Contrary to the intent of the Sixth Amend “

ment, ‘prosecutorial he was left to face the organized society’”

forces of alone. Moran Burbine, 412, 430,

v. (quoting Maine Moulton, (1985)).

484, 88 L.Ed.2d 481 Others besides regrettable contributed this

result. DISTRICT;

OJAI UNIFIED SCHOOL County Superintendent

Ventura

Schools, Plaintiffs-Appellees, JACKSON, minor;

Bion Elizabeth

Jackson; Jackson, Richard W.

Defendants-Appellants, Special Hearing

California Education Of

fice, Raymond Brown; C. California Dept. Education; Honig;

State Bill Superintendent of Public Instruc

tion; State of Defendants.

No. 91-56361. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Dec. Sept.

Decided

Case Details

Case Name: United States v. Jose Orlando Lopez, United States of America v. Jose Orlando Lopez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 22, 1993

Citation: 4 F.3d 1455

Docket Number: 91-10274, 91-10393

Court Abbreviation: 9th Cir.