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May 24, 1991

JOSE ORLANDO LOPEZ, et al., Defendants

The opinion of the court was delivered by: PATEL



 The past decade has witnessed a rapidly growing concern regarding the ethical conduct of lawyers. More and more citizens are lodging complaints alleging misconduct by attorneys, and state bar associations are becoming increasingly active in investigating and addressing such complaints. *fn1" Even with these efforts, the public remains critical of existing mechanisms for lawyer discipline and has demanded more accountability from the legal profession. *fn2"

 Rather than evading the new focus on lawyer misconduct, government attorneys and prosecutors often have found themselves at the center of it. *fn3" The most recent report of the Attorney General's Office of Professional Responsibility indicates that there has been a notable increase in the number of complaints, both substantiated and unsubstantiated, of ethical violations by federal prosecutors. *fn4" This growth undoubtedly arises from both the swift increase in the number of attorneys employed by the Department of Justice *fn5" and evolving efforts by the Department to limit the rights of suspects and defendants in certain areas. *fn6" Many commentators have voiced concern over the increasing frequency of incidents of prosecutorial misconduct and the ineffectiveness or non-existence of sanctions designed to prevent such misdeeds. *fn7"

 In the midst of these developments, the Attorney General has issued a policy directive which purports to exempt Department of Justice attorneys from one of the most widely-accepted and time-honored ethical rules governing the conduct of attorneys involved in litigation. The implementation of the Attorney General's policy in this case has resulted in the motion to dismiss now before the court.


 Defendant Jose Orlando Lopez and co-defendants Antonio Hernandez Escobedo and Alfredo Tarango Olivas were indicted on December 15, 1989. Lopez, Escobedo and Olivas were charged with violations of 21 U.S.C. § 841(a)(1) (distribution of cocaine and heroin); 21 U.S.C. § 846 (conspiracy to distribute cocaine and heroin); and 18 U.S.C. § 2 (aiding and abetting). The case was assigned to Judge Fern M. Smith, who denied bail to defendants Lopez and Escobedo on January 8, 1990. *fn8"

 Shortly after the arrest of the three men, Escobedo's brother contacted attorney James Twitty concerning possible legal representation. Reporter's Transcript ("RT") 3/4/91, at 5. Twitty made several appearances on behalf of the three co-defendants at the outset of the case, primarily at bail and detention proceedings, while he endeavored to locate co-counsel. RT, 2/4/91 at 19; RT, 3/4/91, at 48. There is conflicting evidence in the record as to whether it was initially intended that Twitty would represent Escobedo or Lopez. *fn9" In any event, Mr. Lopez eventually contacted attorney Barry Tarlow, RT, 2/4/91, at 19-20, who by January 11, 1990 was counsel of record for Lopez. *fn10" Lopez alleges that Twitty was "not pleased" when he learned that Tarlow would represent Lopez, RT, 2/4/91, at 20, while Twitty contends that he enjoyed a good relationship with Tarlow. RT, 3/4/91, at 9-10.

 The record indicates that the posture of the defendants' case and the dynamics of the litigation changed after Tarlow was retained to represent Lopez. At the outset of the case, Twitty discussed possible disposition of the charges against Lopez and Escobedo with Assistant United States Attorney ("AUSA") John Lyons, who was assigned to the case. RT, 3/18/91, at 88. Lyons made it clear to Twitty that he would consider a disposition of the case only if both Escobedo and Lopez agreed to enter into a plea agreement. RT, 3/4/91, at 57-58.

 Upon entering the case, attorney Tarlow took the position that Lopez had a viable defense and discussions with the government concerning disposition of the charges against Lopez and Escobedo ceased. RT, 3/18/91 at 88-89. Tarlow avers that Lopez retained his services to "vigorously defend and try the case" and that Lopez had no interest in cooperating with the government. Tarlow Decl. at para. 10. Tarlow informed Lopez that it was his general policy not to represent clients in negotiations with the government concerning cooperation and that if Lopez were interested in cooperation, Tarlow would not represent Lopez in any plea negotiations. Tarlow Decl. at para. 10.

 It also appears that the litigation became more combative after Tarlow arrived on the scene. RT, 3/4/91, at 14-15. Twitty alleges that Lyons did not like Tarlow, RT, 3/4/91, at 14, that the AUSA was "aggravated" by Tarlow's litigation style, RT, 3/4/91, at 53-55, and that there was "no question" that Lyons believed "that the case could be more easily resolved without Tarlow's participation." RT, 3/4/91, at 44. The principal source of conflict between Lyons and Tarlow in the early stages of the case apparently was a dispute concerning what discovery was to be made available to Tarlow. Second Decl. of Lyons at para. 33. In spite of this ongoing dispute, Lyons characterizes his relationship with Tarlow as generally "amicable." Second Decl. of Lyons at para. 38.

 Responsibility for preparation of the defense case was divided among Tarlow, Twitty and Harold Rosenthal, who was retained to represent Olivas. Tarlow authorized both Twitty and Rosenthal to speak with Lopez when necessary in preparation of their cases. Tarlow Decl. at para. 18; Twitty Decl. at para. 13. Twitty appears to have been given responsibility for a "joint investigation" in the Lopez and Escobedo cases; as a result he generally spoke with both Lopez and Escobedo during his visits to FCI Pleasanton, where the two men were incarcerated awaiting trial. RT, 3/4/91, at 56-57.

 Sometime in March or April 1990, Escobedo contacted Twitty by telephone and expressed interest in reopening discussions with the government concerning the possibility of plea agreements. RT, 3/4/91, at 16-17, 65. Lopez and Twitty differ substantially on what transpired following this call. *fn11"

 Lopez contends that Escobedo contacted Twitty to determine if a plea offer made by the government at the outset of the case was still open. RT, 2/4/91, at 48. According to Lopez, Twitty communicated with the government and then apprised Escobedo and Lopez that the government would consider probation in return for cooperation, RT, 2/4/91, at 49-50, but a plea agreement would be possible only if both men were included. RT, 2/4/91, at 50.

 Lopez maintains that he was encouraged by Escobedo to participate in new negotiations with the government. At the time, Lopez apparently was distraught over the safety of his children, whom he believed were being abused and in danger because of certain activities of their mother. RT, 2/4/91, at 22-23, 53-54. Lopez agreed to meet with the government to discuss a possible plea agreement in order to obtain early release and to be closer to his children. Id.; RT, 3/4/91, at 17.

 Lopez asserts that he discussed with Twitty the possibility of meeting with the government and that Twitty told him it was not necessary for Tarlow, Lopez's attorney, to be present at any such meetings. RT, 2/4/91, at 21. Twitty also allegedly represented to Lopez that Lyons believed it would be easier to reach a plea agreement if Tarlow were not present. RT, 2/4/91, at 56-58. Lopez contends that he agreed to go ahead with the meetings without Tarlow because he believed it would be easier to work out a favorable disposition of the case in Tarlow's absence and because he was concerned about the expenses involved were Tarlow to participate. RT, 2/4/91, at 18-21.

 Lopez also maintains that he was told by Twitty and Lyons that meeting with the government without Tarlow's consent or knowledge would not jeopardize his relationship with Tarlow. RT, 2/4/91, at 23-24. In addition, Lopez insists that he did not wish to have another lawyer represent him at the meetings with the government because he feared that as a result he would lose Tarlow as his lawyer. RT, 2/4/91, at 56.

 Twitty concedes that, after receiving an initial telephone call from Escobedo regarding a possible plea agreement, he travelled from Los Angeles to Pleasanton to discuss the matter with Escobedo and Lopez without informing Tarlow of the upcoming meeting. RT, 3/4/91, at 17. Twitty further acknowledges that, prior to contacting the government on behalf of Lopez and Escobedo, he spoke with Lopez between five and nine times regarding the possibility of meeting with the government and that he made a second trip to Pleasanton to discuss plea negotiations with the two men; all of these communications were concealed from Lopez's attorney, Tarlow. RT, 3/4/91, at 22-23.

 Twitty advised Lopez and Escobedo that if they wanted to be released so as to be closer to their children their only option was to cooperate with the government. RT, 3/4/91, at 18. However, Twitty denies encouraging Lopez or Escobedo to enter into negotiations with the government. Indeed, Twitty contends that he was not interested in negotiating a plea agreement and preferred to try the case. RT, 3/4/91, at 63.

 Twitty asserts that he told Lopez and Escobedo to seriously consider whether they wished to proceed with plea negotiations and that he agreed to contact the government on their behalf only after they called him numerous times and threatened to communicate with the government directly. RT, 3/4/91, at 22-23, 92. Twitty claims that he offered Lopez and Escobedo a "second opinion" regarding case strategy RT, 3/4/91, at 90, and maintains that he honored the defendants' request that he secretly contact the government without notifying Tarlow because he considered Lopez and Escobedo to be "friends." Id. Twitty purportedly considered himself to be little more than a "mailman" delivering a message to the government. RT, 3/4/91, at 95.

 Twitty also denies suggesting to Lopez that Tarlow need not be present at the meeting or that a favorable disposition could be obtained more easily without Tarlow. RT, 3/4/91, at 55. Instead, Twitty avers that he told Lopez to speak with Tarlow about his interest in plea negotiations, but that Lopez refused because he believed that Tarlow would no longer represent him if he chose to cooperate with the government or plead guilty. RT, 3/4/91, at 18-19. Twitty also contends that he suggested to Lopez that he retain another lawyer if Tarlow could not represent Lopez in plea negotiations; Lopez refused, Twitty relates, because the defendant believed Tarlow was a good lawyer and wanted him to try the case if it went to trial. RT, 3/4/91, at 26. *fn12"

 Lyons claims he did not ask Twitty to explain further. RT, 11/19/90, at 54. Instead, the prosecutor hypothesized that Lopez feared that if Tarlow learned of the negotiations with the government, Lopez's family would be endangered. This belief was allegedly supported by information possessed by the government which indicated that the families of Lopez and Escobedo had been threatened by a drug source. RT, 11/19/90, at 53; RT, 12/13/90, at 14. Lyons assumed that Lopez was part of a drug ring of some sort and that Tarlow's fees were being paid by this ring. Second Lyons Second Decl. at para. 4.

 Lyons avers that it was his preference that Tarlow be present at the meetings or that Lopez be represented by some other attorney. Second Lyons Decl. at para. 5. Twitty told Lyons that Lopez wanted to speak to the government without a lawyer. Id. In addition, Twitty purportedly represented "that Lopez had come to trust him [Twitty], and that, while Lopez understood Twitty could not represent him, Lopez was comfortable meeting with [sic] government if Twitty were there." Id.

 Twitty's testimony contradicts the representations made by Lyons. Twitty alleges that, upon contacting Lyons, he informed the AUSA that Lopez did not want Tarlow present because Lopez believed Tarlow would no longer represent him if he considered a guilty plea and because Lopez wanted Tarlow to take the case to trial if no plea agreement was reached. RT, 3/4/91, at 26. Twitty denies ever telling Lyons that Lopez believed Tarlow did not represent his best interests in this matter. RT, 3/18/91, at 61-62. Moreover, Twitty insists that he explicitly told Lyons during their first telephone conversation and on numerous occasions thereafter that, to his knowledge, "nobody that Lopez supposedly worked for or with was paying any of his fees", RT, 3/4/91, at 40, and that Lopez did not believe his safety or that of his family would be jeopardized if Tarlow were to learn of the plea negotiations. Id. at 40, 74. Twitty asserts that this was the message "that we communicated strongest and most forthright in everything in terms of these conversations." Id. at 39. Twitty also contends that "all the government's claims about dangers to the Lopez family are simply unfounded." Id. at 74.

 During their initial conversation, Twitty and Lyons discussed the "sensitivity" of Lopez meeting with the government without his attorney's knowledge or consent. RT, 11/19/90, at 52. Lyons informed Twitty that he would seek the intervention of the court. RT, 3/4/91, at 24; Second Lyons Decl. at para. 6.

 Lyons eventually had an ex parte communication with the court; the prosecutor testified that he informed the court that the "common context" in which approaches such as that made by Lopez occur are "situations in which the defense lawyer is somehow connected to somebody else and that the defendant is concerned about word getting back." RT, 11/19/90, at 58. Lyons failed to inform the court of Twitty's explanation as to why Lopez wished to meet with the government without his lawyer. Judge Smith determined that Lopez should be interviewed by another judicial officer. Second Lyons Decl. at para. 10.

 An in camera interview of Lopez by Magistrate Judge Claudia Wilken was held on May 21, 1990. Tarlow was not present for nor informed of the proceeding. Although Lyons testified that he did not inform Magistrate Judge Wilken of his suspicion concerning the source of Tarlow's fees, the Magistrate made numerous references to the alleged fee arrangement during the May 21, 1991 in camera proceeding. RT, 5/21/90, at 4, 5, 7. *fn13" The transcript of the May 21 proceeding thus strongly suggests that Magistrate Judge Wilken was operating under the assumption that Tarlow's fees were being paid by a third party.

 Lopez told Magistrate Judge Wilken that he wished to ask the government two questions about his case. RT, 5/21/90, at 9-10, 15-17. Magistrate Judge Wilken warned Lopez of the danger of meeting with the government without assistance of counsel. RT, 5/21/90, at 6-7, 9-10. She advised Lopez that he could have Tarlow assist him in the matter, have a public defender appointed, or represent himself. Id. at 14. The Magistrate Judge also informed Lopez of his right to counsel and advised him that Twitty was representing his client, Escobedo, and not Lopez. Id. at 21.

 The Magistrate Judge then read Lopez a written waiver, prepared by the government, which stated that Lopez was represented by Tarlow, that he wished to speak to the government without Tarlow present, that he did not believe Tarlow represented his best interests in the matter, and that he waived his right to have Tarlow's assistance at the meeting. RT, 5/21/90, at 21-24. Lopez signed the waiver, Id. at 25, but sought assurances from the court that he was waiving his right to counsel only for his initial plea negotiations with the government. Id. at 23.

 At the close of the proceeding, AUSA Lyons appeared before the court. Lyons explained that the meeting between the government, Lopez, Escobedo and Twitty would be "off the record." RT, 5/21/90, at 27. The Magistrate Judge informed Lyons that Lopez had waived his attorney's presence for the purpose of asking the government two questions and that she would convene another in camera proceeding if the defendant wished to proceed with discussions with the government after receiving answers to his questions. Id. at 25-26, 32.

 There is general agreement among the parties as to much of what occurred during the first meeting among the government, Lopez and Escobedo. The meeting, which lasted for approximately one and a half hours, RT, 3/4/91, at 28, took place in Lyons' office and was attended by Lyons, Twitty, Lopez and Escobedo. RT, 2/4/91, at 22, Lyons Decl. at para. 2. The meeting apparently began with Lyons administering the Miranda warning to Lopez. RT, 3/4/91, at 29; Second Lyons Decl. at para. 13. Lyons explained that the meeting was to be a "free talk" and that the government would not use any of the information from the meeting against Lopez or Escobedo, Second Lyons Decl. at para. 12. No record of the meeting was kept. Lyons Decl. at para. 2. Lyons alleges he told Lopez that he preferred to have Tarlow or some other lawyer present representing Lopez, but that Lopez indicated he wished to proceed without representation. Second Lyons Decl. at para. 13.

 Twitty informed Lopez at the outset of the meeting that he could not act as Lopez's lawyer. RT, 2/4/91, at 25; RT, 3/4/91, at 30. Despite this, Twitty apparently advised both Lopez and Escobedo during the meeting. RT, 11/19/90, at 73, 77; Lyons Second Decl. at paras. 13, 17; Gov. Supp. Response at 4.

 Lopez was primarily interested in learning whether there was any way he could be released to be closer to his children and, if he were to cooperate with the government, how his safety and that of his family could be guaranteed. RT, 2/4/91, at 22-23; Second Lyons Decl. at para. 14. Lopez appeared deeply disturbed by the plight of his children and cried at one point during the meeting. RT, 2/4/91, at 23; RT, 3/18/81, at 31; Second Lyons Decl. at para. 15.

 Lopez alleges that during the first meeting Lyons told him "it's better if you get rid of Tarlow so we can work out a deal and get this thing over." RT, 2/4/91, at 57, 62-63. According to Twitty, Lyons advised Lopez that if Tarlow had conditioned his representation on Lopez not pleading guilty, Lopez would have to fire Tarlow and retain new counsel in the event he chose to cooperate. RT, 3/18/91, at 72-73.

 Lopez provided no concrete information to the government during the meeting, although he did indicate that he might be willing to provide names and other information that would assist the prosecution. RT, 2/4/91, at 58-59; RT, 3/4/91, at 31-32.

 Following the first meeting, Twitty spoke with Lopez and Escobedo once or twice by telephone and traveled to Pleasanton to meet with the two men to further discuss the possibility of a plea agreement, RT, 3/4/91, at 34; once again, these contacts were concealed from Tarlow. Lopez contends that Twitty encouraged him to participate in a second meeting with the government and to provide information concerning the drug source, RT, 2/4/91, at 61; Twitty claims that it was Lopez who requested that the second meeting be scheduled. RT, 3/4/91, at 35. In any event, Twitty called Lyons and over the course of two or three telephone conversations arranged for a second meeting with the government. RT, 3/4/91, at 35. During one of these conversations, Twitty again stressed to Lyons that Tarlow's fees were not being paid by a third party and that Lopez's desire to proceed without Tarlow was not based on fear for his safety or that of his family. Second Lyons Decl. at para. 20.

 On May 30, 1991, Lopez was once again taken before Magistrate Judge Wilken, who verified that Lopez wished to meet with the government a second time without Tarlow present. RT, 5/30/91, at 3. Like the first meeting, the second was held in Lyons' office and was attended by Lyons, Lopez, Escobedo, and Twitty. *fn14" At the second meeting, Lyons pressured Lopez and Escobedo to provide some significant information concerning the drug source as a sign of good faith, RT, 11/19/90, at 78-79; RT, 2/4/91, at 27; RT, 3/4/91, at 40-41; RT, 3/18/91, at 69-71. Although hesitant to cooperate, RT, 3/4/91, at 100, Lopez eventually gave Lyons several names of individuals who allegedly were involved in drug trafficking. RT, 3/4/91, at 42; RT, 2/4/91, at 29-30. *fn15"

 Lopez maintains he was pressured by both Twitty and Escobedo to provide information to Lyons. RT, 2/4/91, at 28-29. Twitty denies urging Lopez to furnish information to the government, RT, 3/4/91, at 102, and claims to have advised his client, Escobedo, to "do what you want to." Id., at 101. *fn16" Lopez also alleges that after he mentioned one of the names to Lyons, Twitty interjected that that information would implicate Lopez's entrapment defense. RT, 2/4/91, at 31-32. Twitty denies making any reference to defense strategies during the meeting. RT, 3/4/91, at 101.

 Following the second meeting, Lyons sent Twitty a proposed plea agreement for Escobedo and indicated that, while the same type of deal might be available for Lopez, Lopez would have to obtain a lawyer. RT, 11/19/90, at 82. Twitty provided Lopez with a copy of the proposed plea agreement. RT, 2/4/91, at 78. Lopez claims to have been told by Twitty that Twitty could act as his lawyer in finalizing the plea agreement. Id. at 79-80. Twitty discussed the plea agreement with Lopez and Escobedo; he eventually contacted Lyons and told the prosecutor that he was trying to determine a means of avoiding a mandatory minimum sentence for Lopez and Escobedo. RT, 11/19/90, at 83. The record indicates that, at some point, Lopez and Escobedo rejected the plea agreement proposed by the government. RT, 2/4/91, at 78.

 In early August 1990, Lyons had a telephone conversation with Harold Rosenthal, attorney for co-defendant Alfredo Olivas; during this call the prosecutor alerted Rosenthal to the fact that the government had been negotiating a potential plea agreement with Lopez and Escobedo without Tarlow's presence, consent, or knowledge. Second Lyons Decl. at para. 26. Rosenthal contacted Twitty, who warned Rosenthal not to inform Tarlow of the meetings because it would "mess up the deal." RT, 3/18/91, at 86-87. Despite Twitty's admonition, Rosenthal notified Tarlow. Id. at 87. Tarlow quickly filed papers with the court indicating that he had learned of the secret meetings between his client and the government.

 On August 15, 1990, Tarlow appeared before the court and withdrew as counsel of record for Lopez because of the conflict that had been created by the secret meetings. At the August 15 hearing, the government informed the court that there was no evidence of impropriety on Tarlow's part.

 Defendant Lopez has now filed his motion to dismiss the indictment, alleging that the government violated both his sixth amendment right to counsel and rules of professional conduct, which prohibit an attorney from communicating with an opposing party who is represented without the knowledge and consent of opposing counsel. The court held a series of evidentiary hearings on the motion and took testimony from AUSA Lyons, attorney Twitty, and defendant Lopez. *fn17"


 The proceedings in connection with defendant Lopez's motion to dismiss focused primarily on the applicability to this case of ethical rules limiting contact between an attorney and a represented party, and it is to this issue that the court initially turns.

 I. Ethical Requirements

 Rule 2-100 of the Rules of Professional Conduct of the State Bar of California states as follows:

(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, ...

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