Grievance Committee for Southern Dist. of New York v. Simels
| Decision Date | 08 February 1995 |
| Docket Number | No. 1679,D,1679 |
| Citation | 48 F.3d 640 |
| Parties | GRIEVANCE COMMITTEE FOR the SOUTHERN DISTRICT OF NEW YORK, Petitioner-Appellee, v. Robert M. SIMELS, Respondent-Appellant. ocket 94-6003. |
| Court | U.S. Court of Appeals — Second Circuit |
Kevin J. Burke, New York City (Cahill Gordon & Reindel, New York City, Special Counsel), for petitioner-appellee.
Elkan Abramowitz, New York City (Jamie L. Kogan, Morvillo, Abramowitz, Grand, Iason & Silberberg, New York City, of counsel), for respondent-appellant.
Before: MAHONEY and JACOBS, Circuit Judges, and TRAGER, District Judge. *
Robert M. Simels, an attorney, appeals from an unpublished opinion and order of the Committee on Grievances for the Southern District of New York ("Committee"), In re Simels, No. M2-238, 1993 WL 524939 (S.D.N.Y. Dec. 10, 1993), imposing on him a sanction of censure. The Committee found that Simels violated Disciplinary Rule 7-104(A)(1) ("DR 7-104(A)(1)" or "Rule") of the American Bar Association's Code of Professional Responsibility ("Code") 1 when he contacted one Aaron Harper, whom Simels knew to be represented by counsel. Harper had been charged with participating in the attempted murder of a government witness in a drug conspiracy trial in which Simels' client, Brooks Davis, was a defendant, had agreed to cooperate with the government and had implicated Davis in the shooting. Prior to Simels' contact with Harper, the government had informed Davis (and Simels) that it would be filing a complaint against Davis and two other codefendants in connection with the attempted murder of the government witness. Because in our view the Committee erroneously interpreted DR 7-104(A)(1), we reverse.
On Monday, April 11, 1988, a large-scale, multi-defendant drug conspiracy trial, entitled United States v. Davis et al., was scheduled to commence before Judge Thomas Griesa in the Southern District of New York. The defendants in that trial were Brooks Davis (Simels' client), Claddis Arrington, Mary Davis (Brooks Davis' wife) and Wayne Davis (not related to Brooks and Mary Davis).
On the Saturday preceding the first day of trial, Isaac Diggins, a government witness in the drug conspiracy case, was shot and seriously That same day, jury selection in the drug conspiracy case began. The government requested an anonymous jury and that the codefendants, who had been out on bail, be remanded because it had information from a confidential informant that Arrington was responsible for the attempted murder of Diggins. The government also announced that it would be filing a complaint against Brooks Davis, Arrington and Wayne Davis, charging them with attempted murder, obstruction of justice and tampering with a witness in connection with the shooting.
injured. On Sunday, Aaron Harper was arrested in connection with the shooting. After several hours of questioning, Harper told authorities that Arrington had stated that he wanted Diggins killed, and had asked Harper to lead Diggins to the scene of the shooting. Harper was arraigned in District Court on the morning of Monday, April 11, 1988, and counsel was appointed for him.
While Harper was awaiting arraignment before a Magistrate Judge, he came across Arrington in the holding pens. Later that day, Harper again encountered Arrington, along with Brooks Davis and Wayne Davis, all of whom were being held at the Manhattan Correctional Center ("MCC"). What exactly was said during these encounters is uncertain, except that Brooks Davis told Harper that he would be sending his lawyer to speak with him. 2 Sometime that same afternoon, Brooks Davis telephoned Simels from the MCC and told him to interview Harper because Harper might have information relevant to Davis' defense. Harper's name had been kept confidential and was not on the government's list of potential witnesses in the drug conspiracy trial.
The next morning, April 12, Simels went to interview Harper, introducing himself as Brooks Davis' attorney. During the interview, Simels learned about the circumstances surrounding Harper's arrest and incarceration and that the court had appointed counsel for him, although Harper was unable to recall the name of the attorney. Harper also stated that he and his family were in the process of retaining private counsel. Simels inquired about the shooting and the government's interrogation of Harper, and had an affidavit prepared which Harper signed the same day. 3 At no point during this exchange did Simels make any attempt to contact Harper's attorney.
The Acting United States Attorney for the Southern District of New York reported Simels' conduct to the Committee on Grievances, which determined that the conduct merited prosecution. Judge Griesa, who was also the Chairman of the Committee, appointed Special Counsel to prosecute the charges and named a three-member Panel, headed by retired Chief Judge Fuld of the New York Court of Appeals, to hear evidence and report to the Committee. The "Second Count" of the Statement of Disciplinary Charges alleged a violation of DR 7-104(A)(1) arising out of Simels' contact with Harper. 4
On April 11, 1991, the Panel submitted its Findings of Fact and Conclusions of Law recommending that all charges against Simels be dismissed. With respect to the DR requir[ing] an exceedingly narrow definition of "party" if the prohibitions of DR 7-104 are to be involved.
7-104(A)(1) violation, the Panel interpreted the Rule as:
. . . . .
It is our view ... that DR 7-104 does not bar an attorney from communicating with one scheduled to appear as a witness or with his client's codefendant, even though the one to be interviewed is represented by counsel.
Panel's Findings of Fact and Conclusions of Law at 13, 16.
On December 8, 1993, the Committee issued its Opinion and Order accepting the Panel's Findings of Fact, but reversing the Panel's Conclusions of Law with respect to that portion of the "Second Count" which charged a violation of DR 7-104(A)(1). Focusing on the attempted murder of Diggins (the government witness in the drug conspiracy case) as the pertinent "matter," the Committee concluded that because Davis and Harper were facing or were about to face identical charges,
[t]he word "party" is, on the facts presented here, broad enough to encompass the relationship between Harper and Simels' client, Brooks Davis. At the time he interviewed Harper, Simels knew that the prosecutor either had filed, or in the near future would file, against Simels' client charges identical to those on which Harper was being held. While Harper and Davis may not have been named in the same accusatory instrument, they were charged with the same crime.
There can be no doubt that had Brooks Davis and Harper been charged in the same complaint or indictment, they would be considered "parties" on even the most technical construction of that term. Black's Law Dictionary (Fifth Edition) (p. 1010)
. . . . .
Simels, slip op. at 4-5. The Committee further found that because the affidavit Simels had procured from Harper could have been used against Harper, "the interests of Harper and Brooks Davis were 'adverse' at the time [Simels] took the statement." Id. at 7. After concluding that Simels had violated DR 7-104(A)(1), the Committee imposed the sanction of censure. Id. at 8. 5 This appeal followed.
This appeal requires a determination of whether Davis and Harper were "part[ies]" in the same "matter" such that, before talking to Harper, Simels should have sought permission from Harper's attorney after learning that counsel had been appointed for Harper. The Committee's interpretation of DR 7-104(A)(1) as applied to federal criminal proceedings raises important issues of policy affecting federal law enforcement and the ability of defense counsel to provide the effective assistance and zealous representation that the Sixth Amendment and DR 7-101, respectively, guarantee to criminal defendants. We believe that the Committee's interpretation may well result in broad and unwarranted changes in traditional law enforcement and defense practices and procedures. If such substantial modifications are to be made, they should occur only after careful consideration by the representative branches of the federal government. The conceded power of federal district courts to supervise the conduct of attorneys should not be used as a means to substantially alter federal criminal law practice. 6 Although it
may well be that DR 7-104(A)(1) can reasonably be read, as the Committee did, to find that the word "party" is broad enough to encompass the relationship between Davis and Harper, as we view the issues, a narrow interpretation of the Rule is the wiser course for the federal courts to follow. Accordingly, we disagree with the Committee's expansive interpretation of DR 7-104(A)(1) and, therefore, reverse. In interviewing Harper, Simels was interviewing a potential witness in the drug conspiracy case and a potential codefendant of his client in a related but distinct matter, the attempted murder of Diggins. In neither case was Harper a "party" in the same "matter."
The decision whether to impose disciplinary sanctions on an attorney is usually subject to an abuse-of-discretion standard of review. In re Grievance Committee, 847 F.2d 57, 61 (2d Cir.1988). As both parties acknowledge, however, where the issue presented for our review is the Committee's interpretation of a particular disciplinary rule, Circuit review is plenary. Id. ("Because resolution of such questions leaves little leeway for the exercise of discretion, appellate review in those cases is plenary.") (citations omitted). Accordingly, whether Davis and Harper were parties in the same matter under DR 7-104(A)(1) is subject to de novo review.
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