Appeal from the United States District Court for the Northern District of California. D.C. No. CR-89-00687-MHP. Marilyn Hall Patel, District Judge, Presiding. Original Opinion Reported at:,
Before: Betty B. Fletcher, Cecil F. Poole, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Poole; Concurrence by Judge Fletcher.
AMENDED OPINION AND ORDER
Jose Lopez was indicted for conspiracy to distribute and distribution of cocaine and heroin in violation of 21 U.S.C. §§ 846 & 841(a)(1), and for aiding and abetting in violation of 18 U.S.C. § 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, 113 S. Ct. 417 (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 ...