This week, the BBA filed an amicus brief in the case of U.S. v. Brian Joyce on the issue of the government’s motion to disqualify Joyce’s defense counsel. This move has generated a great deal of alarm in the legal community for its potential to significantly interfere with the attorney-client relationship, a bedrock of the fair administration of justice.
Drafted by President-Elect Jonathan Albano, of Morgan Lewis, the BBA brief argues that the Government’s motion to disqualify defense counsel should be denied on both Sixth Amendment and First Amendment grounds, honing in specifically on the First Amendment issues of the right to petition the government and an attorney’s right to speak publicly on behalf of a client.
In December 2017, former state senator Brian Joyce was indicted on federal charges for using his office for personal gain, including racketeering, honest services fraud, extortion under color of official right, and conspiracy to defraud the IRS. In February 2018, the government moved to disqualify Joyce’s defense counsel, Howard Cooper, who has served as Joyce’s counsel for a number of years, including during the Massachusetts State Ethics Commission’s investigation, the U.S. Attorney’s Office’s investigation, and in the current case before the District Court.
The government argues that Joyce used Cooper to make several material and false representations to the Ethics Commission and the press, which Joyce intentionally meant to conceal his ongoing criminal conduct that is now the subject of the criminal charges. As a result, the government claims that Cooper has become entangled in Joyce’s cover-up and the perpetuation of the conduct, making him a percipient witness in the case, and requiring his disqualification. The government does not put forth any evidence that Cooper knew the information relayed to him by Joyce was false.
The brief begins by noting the BBA’s “strong interest in protecting the sanctity of the attorney-client relationship and in safeguarding the constitutional right of lawyers to advocate on behalf of their clients.” Indeed, we have a long history, stretching back decades, of speaking out on these issues as intervenor and amici.
Over twenty years ago, we intervened at the District Court level and later participated as amici when it made its way to the First Circuit Court of Appeals, in the case of U.S. v. Klubock, 832 F.2d 649 (1986). There, we voiced our support for the ability of a district court to use its supervisory powers to adopt a local rule that would require prosecutors to seek prior judicial approval before serving a grand jury subpoena upon an attorney, for the purpose of obtaining evidence about the attorney’s clients. The First Circuit ultimately agreed that adoption of such a rule was a “sound use” of the court’s supervisory powers, noting the implication of due process and the right to counsel of choice under the Sixth Amendment.
Since then, we drafted and joined many briefs that address the importance of attorney-client privilege and the First and Sixth Amendment rights implicated in the attorney-client relationship, including, most recently, a brief in Commonwealth v. Wade. There, we expressed grave concern when a trial court interpretation of a statue would have required counsel to reveal confidential communications protected by the attorney-client privilege. In this brief we noted that “[t]he attorney-client privilege is critical to the proper functioning of the criminal justice system in Massachusetts. Safeguarding the attorney-client privilege is thus a vital concern for the BBA.”
Given this long history, we felt it necessary to respond to the government’s motion to disqualify Joyce in this case, which, as mentioned, has caused a great deal of alarm raised serious concerns across the legal community in recent weeks. A brief filed by the Massachusetts Academy of Criminal Defense Lawyers, the Massachusetts Bar Association, and the ACLU of Massachusetts, and others expounds on the Sixth Amendment right to counsel implications of the matter. Our brief acknowledges these concerns and hones in on another important right implicated: the First Amendment right of all attorneys to petition the government and to speak publicly on behalf of clients.
To summarize, the BBA brief posits that the government’s contention that defense counsel in a criminal prosecution can be disqualified, and attorney-client privilege lost, if the lawyer makes allegedly false statement in a submission to a state agency even in the absence of evidence that the lawyer knew the statements were false when made, would violate well-established constitutional protections of the right to petition the government. The First Amendment provides that “Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances,” a right commonly exercised through counsel.
The defense counsel’s presentation of his client’s defense to the Ethics Commission was a protected form of petitioning activity, a protection that extends to statements that are not made with knowledge of falsity, as it is recognized that some false statements will be inevitably covered in order to protect speech that matters. The government’s theory, however, would require that defense counsel guarantee the truth of factual assertions from the client, which would raise serious barriers to the attorney-client privilege and strain the right to petition. The brief provides:
…the free flow of information between defense counsel and the government promotes the administration of justice. Imposing significant new barriers to pre-charging advocacy – such as the fear that an innocent misstatement will result in disqualification – would be both unconstitutional and contrary to the public interest.
In sum, without proof that a lawyer knowingly shared false information on behalf of the client, the Petition Clause of the First Amendment does not allow for the government to disqualify counsel solely because they repeat the defense.
The brief also addresses the First Amendment protections of a lawyer’s statement to the press on behalf of a client, as the government’s motion to disqualify also relies on the defense counsel’s allegedly false statements to a newspaper reporter investigating Joyce’ s conduct. Here, the brief highlights the Supreme Court case Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), where the Court held the First Amendment protects attorney speech about pending cases and can only be punished upon a showing that the speech will cause a substantial likelihood of materially prejudicing an adjudicatory proceeding. As a result, without evidence that defense counsel knew the information provided was false, the disqualification of counsel for publicly disclosing a client’s position on a matter of public concern would infringe on the First Amendment protections afforded attorney’s statements to the press.
We are grateful to have had the opportunity to weigh in on this matter, so critical to the BBA as an association of attorneys. And we are especially grateful of the significant efforts put forth by drafter Jon Albano, who had this to say about the brief:
We believe the government’s motion threatens the constitutionally protected right of a lawyer to present a client’s defense to courts and to government agencies. A lawyer should not be disqualified for presenting a client’s side of a case when there is no evidence that the lawyer knew the client was not telling the truth.
We will be following the disposition of the motion closely and will update this space with new developments. In the meantime, click here to learn more about our past amicus advocacy.
Legislative and Public Policy Manager
Boston Bar Association