Independent Counsel's Leaks and Unethical Conduct Imperil America's Justice System
Washington, DC (February 10, 1998) -- The Board of Directors of the National Association of Criminal Defense Lawyers, meeting this weekend, unanimously rebuked Independent Counsel Kenneth W. Starr's office for leaking secret grand jury testimony and calls upon the U.S. Department of Justice and the appropriate judicial authorities to immediately investigate to determine those who have unlawfully leaked information. In a separate resolution, the Association denounced the unethical treatment of potential grand jury witness Monica Lewinsky by Starr's prosecutors and agents in ignoring and defying state ethical prohibitions against contacting persons who are represented by counsel. Both resolutions were passed at NACDL's Midwinter Meeting in Puerto Rico on Saturday and released today.
"The continuous leaking of grand jury material and false information violates the Federal Rules governing grand jury proceedings, ethics rules governing attorney conduct and the Justice Department's own guidelines governing extrajudicial statements," NACDL President Gerald B. Lefcourt, of New York, said today. "Matters being investigated by a grand jury are necessarily secret, both to ensure the integrity of the investigation and to protect the reputations of American citizens from unsubstantiated rumor, speculation and misinformation. Leaks and false leaks of grand jury information, in order to pressure or humiliate witnesses and targets, is unconscionable. These ethical lapses must be investigated with all deliberate speed and stopped immediately," Lefcourt explained.
"If this kind of police state misconduct can be used against the President of the United States, just imagine how the rights of ordinary American citizens are imperiled by such blatant defiance of the law," Lefcourt added. "What's going on is a veritable license for prosecutorial misconduct in every hamlet and every courtroom across our nation."
The NACDL resolution also condemns Starr's office for failing to adequately supervise and control those responsible for the leaks and further "urges that such persons be professionally disciplined for unethical conduct and criminally prosecuted for obstruction of justice and criminal contempt."
In a separate resolution, NACDL unanimously condemned other aspects of the Independent Counsel's 'star chamber' tactics, in particular, unethical contacts with potential witnesses and other persons represented by counsel, without their lawyers' consent. Lefcourt said that if Starr knew that Lewinsky had a lawyer when he had her taped by Linda Tripp and subsequently seized and questioned by FBI agents, he violated the American Bar Association's model disciplinary rules, and should be sanctioned.
"Starr violated a cardinal ethical rule which binds all lawyers when he wired Linda Tripp and sent her to the Ritz Carlton Hotel to get Monica Lewinsky on tape," Lefcourt said. "'Thou shalt not terrorize, nor even contact, a person represented by counsel, behind her lawyer's back.'"
ABA Model Rule 4.2 prohibits a lawyer from "communicat[ing] about the subject of the representation with a person the lawyer knows to be represented by another lawyer . . . unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
The purpose of the rule, Lefcourt explained, is to "level the playing field, protecting ordinary citizens from intimidation and trickery by a trained adversary -- and it applies to all lawyers, civil and criminal, state and federal, at all times. All 50 states and the District of Columbia have adopted the prohibition on contacts with represented persons in one form or another, because it protects citizens from unscrupulous lawyers and thereby protects the integrity of our legal system."
"Such conduct, whether by the Office of Independent Counsel, or other prosecutors, imperils the sanctity of the attorney-client relationship and jeopardizes our adversarial system of criminal justice," the resolution states. NACDL "denounces such violations of the ethical rules which govern the conduct of all lawyers, and calls upon the Office of the Independent Counsel and all other prosecutors to abide by those ethical rules and to respect the due process rights of all citizens."
To read the full text of both resolutions click here