Two SDNY Decisions on the Right to Counsel Illustrate the Fine Line Between Zealous Advocacy and Criminal Conduct (Part 1)

When does good lawyering become criminal conduct?  This thorny question is at the heart of several recent prosecutions of lawyers for conduct within their role as lawyers, sending a chill down the spine  of many a committed advocate: prosecutions such as those of Mayer  Brown partner Joseph Collins, Gen Re general counsel Robert Graham, Sidley Austin partner Raymond Ruble, Hollinger International general  counsel Mark Kipnis, Lynne Stewart, Computer Associates general counsel Steve Woghin, Rite Aid general counsel Franklin Brown, to name but, well, several.

The issue is highlighted in two recent SDNY cases, addressing the right to counsel.  In the first, United States v. Hashmi, 06 CR 442  (LAP), 2008 WL 216936 (S.D.N.Y. January 16, 2008), a case involving  charges of providing material support to Al Qaeda, the court held that  a defendant's right to counsel was not violated by a requirement that  the defense lawyer obtain a security clearance under the Classified  Information Procedures Act (CIPA) before engaging in discovery, nor by the requirement that the lawyer sign an acknowledgement (but not an  endorsement) of the Special Administrative Measures ("SAMs") placing  limitations on communications between the defendant and his attorneys.  

Some SAMs included preventing the defendant from speaking with the defense lawyer's representatives unless the lawyer was present, requiring the use of a pre-cleared translator, giving the BOP discretion to make attorney visits "non-contact," and preventing the defendant from communicating with news media.

Holding that the government "has a strong interest in preventing the irreparable harm of disclosing classified information" and "it is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," the court held that "requiring a security clearance does not infringe on the Defendant's right to counsel of choice." 

What is not elucidated in the decision is why the defendant's suggestion of a protective order would not achieve the same result.  Implicit in the decision is the assumption that the lawyers who would not succeed in obtaining, or would not choose to obtain, a security clearance are not trustworthy.  In the absence of any statistical analysis - and indeed the litany of advocates recently prosecuted for  their advocacy includes many who would no doubt have sailed through a  security clearance process - the court's conclusion appears speculative and unpersuasive. 

As for the SAMs, the court concluded that they were "reasonably  related to legitimate penological interests" where there was evidence of the defendant's "willingness to provide aid to Al-Qaeda," "stated intention to overthrow the United States through whatever means necessary," and "threatening statements to British authorities."

The shadow over the entire issue, of course, is the prosecution of  criminal defense lawyer, Lynne Stewart, for, among other things, making a false statement in signing the SAMs affirmation, on the  theory that when she signed it, she had no intention of abiding by it.  In response to Hashmi's lawyers' concern that the SAMs affirmation similarly subjects him to potential prosecution, the court had this to  say: "counsel would do well to avoid the conduct that formed the basis of that attorney's conviction - smuggling messages from her client to  co-conspirators, despite acknowledging the SAMs that forbade her from doing so."

The court's comment, however, doesn't really address the problem, which is the potentially chilling effect of the prospect of prosecution on lawyers subject to SAMs restrictions.  There are many extremely able advocates who could not stomach being subject to SAMs restrictions, or, more critically, being subject to the penalties for  violating SAMs and thus, potentially, the whim of a zealous prosecutor who decides the lawyer has failed to comply with their previous SAMs acknowledgement.  These able advocates would absent themselves from the already small pool willing to defend defendants subject to SAMS to  begin with, a scenario with deeply troubling implications about the quality of representation for the some of the most villified defendants in our criminal justice system. 

It is hoped that when these issues reach the Second Circuit, either through this case or another, that the balance will tip in favor of ensuring excellent representatives for accused terrorists, unfettered by conscientious or practical objections to the requirements of undergoing security clearances or signing SAMs acknowledgements.