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Keywords

attorneylawyertrialrespondentpiracy
defendantlawyertrialrespondentpiracy

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Matter of Simels, Not Reported in F.Supp., 1993 WL 524939

Facts

Respondent Simels was representing Brooks Davis in a narcotics conspiracy case when he interviewed Aaron Harper, a prosecution witness who had been shot and was being held on related charges. Despite knowing that Harper had assigned counsel, Simels proceeded to take a statement from him without attempting to contact Harper's attorney. The interview occurred shortly before the trial was set to begin, and Simels was aware that the prosecution had information linking his client to the shooting.

The facts are as follows: Diggins, a prosecution witness in a multi-defendant narcotics conspiracy case, was shot and seriously wounded on Saturday, April 9, 1988; the narcotics case was scheduled for trial the following Monday, April 11, 1988; one Harper was arrested on April 10, 1988 and gave a statement, the purport of which was that Arrington, a defendant in the narcotics case, had stated he wanted Diggins killed and had persuaded Harper to lead Diggins to the scene of the shooting; Harper was then held in the Metropolitan Correctional Center (MCC) and was arraigned on April 11, 1988; respondent and other defense counsel were informed during the prosecution's requests for an anonymous jury and for the remand of the defendants that the prosecution had information that Arrington had arranged for the shooting of Diggins and that a complaint would be filed that afternoon charging Gregory Brooks Davis, Wayne Davis and Claddis Arrington with obstruction of justice under 18 U.S.C. § 1503, witness tampering under 18 U.S.C. § 1512 and attempted murder under 18 U.S.C. § 1952(B).

Issue

Did Respondent Simels violate DR 7–104(A)(1) by communicating with Aaron Harper, a party he knew to be represented by counsel, without obtaining consent?

Did Respondent Simels violate DR 7–104(A)(1) by communicating with Aaron Harper, a party he knew to be represented by counsel, without obtaining consent?

Rule

DR 7–104(A)(1) prohibits a lawyer from communicating with a party known to be represented by another lawyer in the matter unless he has prior consent or is authorized by law to do so.

DR 7–104 reads as follows: Communicating with One of Adverse Interest. A. During the course of his representation of a client a lawyer shall not: 1. Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Analysis

The court determined that the term 'party' in DR 7–104(A)(1) is not limited to those formally named in a legal proceeding but includes anyone involved in the matter at hand. Simels' knowledge of the charges against both Harper and his client, Brooks Davis, indicated that their interests were adverse. By interviewing Harper without consent from his attorney, Simels violated the disciplinary rule designed to protect represented parties from unauthorized communications.

While Respondent contends that he was interviewing Harper merely as a witness in a case involving his client, Davis, in fact Harper and Davis were parties to the same criminal charge. Respondent took the statement from Harper in the hope of using it to the advantage of his client with respect to that charge and with the knowledge that it could be used against Harper.

Conclusion

The court concluded that Respondent Simels violated DR 7–104(A)(1) and should be censured for his actions.

In the view of the Committee, Respondent's action was a violation of DR 7–104(A)(1) for which he should be censured.

Who won?

The disciplinary committee prevailed in the case, as they successfully argued that Simels' actions constituted a violation of the professional conduct rules.

The court found that Simels' actions in interviewing Aaron Harper, a witness in a narcotics conspiracy case, constituted a violation of the disciplinary rule.

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