COLUMN ONE : Putting the Heat on the Defense : Lawyers claim the government is using subpoenas, IRS audits and pressure tactics to target those who represent high-profile drug and mob suspects. Prosecutors say the fears are exaggerated.
Prominent defense attorney Patrick Hallinan was alone, reading in the library of his luxurious, mountaintop Marin County home, oblivious to the strangers lurking outside.
In a flash of guns and a blur of barked commands, a dozen armed men burst into the mansion and forced the shaken lawyer to his knees.
At first Hallinan thought he was being robbed. Then he spied the letters “DEA” on their black leather jackets. The truth hit him like a bullet, sinking in with wrenching, humiliating clarity as handcuffs were slapped on his wrists.
The intruders were federal drug agents and other law enforcement officers. They hauled the lawyer off to jail on charges that could put him away for life.
He was arrested because a former client in a drug smuggling case had turned government informant. In hopes of a lighter sentence and in exchange for other considerations, the client agreed to testify that Hallinan laundered drug profits for him and coached a federal grand jury witness to lie. Hallinan denies the charges.
The August arrest has sent shudders through much of the nation’s criminal defense bar. Feeling vulnerable after a decade of increased federal scrutiny, many defense lawyers believe that the government has been selectively targeting their most effective colleagues in hopes of discouraging zealous representation of accused criminals.
The federal government denies any crackdown. “There is no concerted effort to go after the defense bar,” U.S. Justice Department spokesman John Russell said. “We go after criminals.”
But defense lawyers’ fears are not without foundation. During the past several years, the government examined attorneys who represent drug dealers, white-collar criminals and organized crime figures, subpoenaing many to testify about their clients, threatening to confiscate their legal fees and prosecuting some for criminal complicity.
In yet another unsettling signal, the Internal Revenue Service in December began levying hefty fines against lawyers who failed to report the names of clients who paid them large sums in cash--even though identifying those clients could make them vulnerable to prosecution.
In a 1988 study published by the Brooklyn Law Review, 80% of the criminal defense attorneys responding to a survey said they believed the Justice Department intentionally prosecuted attorneys to inhibit zealous representation of defendants.
Of 1,648 respondents, or 42% of those mailed questionnaires, two-thirds said they had received a grand jury subpoena or an IRS summons, discovered government confidential informants at defense meetings, had their fee questioned by the government for possible forfeiture, had their office searched, or had the government attempt to disqualify them from a case.
The attorneys who reported most of these problems represented accused drug dealers and white-collar criminals. They also were among the highest paid and most experienced of their profession, according to the study by William J. Genego, then a clinical professor at USC Law School.
Such scrutiny has had profound effects on how defense lawyers practice law, the study said. Nearly half of the lawyers said fear of prosecution had prompted them to change their practices. Some turned down cases if they thought the focus could shift to them. Others rejected clients out of fear that the government would take their fees, alleging that the money was earned in crime.
Six years after the completion of the study, defense lawyers said in interviews that their precautions have exacted a price. Some have stopped accepting cash as fees and have lost clients. Many said they tend to be suspicious of clients, particularly if they are new, and speak to them only guardedly, as though they were being recorded, or only in the presence of a witness. Many say the fear of government prosecution has diminished their effectiveness.
“I don’t care how good a lawyer you are,” said attorney Donald Beskind of North Carolina. “Once they are coming after you, it is very hard to focus on your client.”
Federal laws passed in the 1980s have made it easier for the government to target criminal defense attorneys, creating a series of legal minefields. Some lawyers have felt the chill of hearing their conversations with criminal clients played back to them in court: They were overheard on federal wiretaps.
To help lawyers avoid these hazards, legal magazines feature such articles as “Staying Out of Jail” (tips for defense attorneys), and “Crime Doesn’t Pay--but Counsel May.”
Federal prosecutors dismiss this so-called war against the criminal defense as a figment of the lawyers’ overwrought imagination and deny claims that they have encouraged defendants to inform on their lawyers.
“I think the clients are telling the lawyers one thing, and the prosecutors and the agents another thing,” said San Francisco U.S. Atty. Michael Yamaguchi.
Prosecutors say their offices are particularly careful if the target is a lawyer, and they usually cannot proceed without approval from Washington.
According to the Justice Department, the federal government in the fiscal year ending in October issued 975 subpoenas of lawyers or their records in connection with clients they represented, most of them in drug cases.
Lawyers become suspects only when they cross the line from representation to “promoting or facilitating” illegal acts, said Assistant U.S. Atty. Stephen Nelson. “It’s usually an evolutionary thing,” the San Diego federal prosecutor said.
Operating on such a theory, federal prosecutors indicted three San Diego attorneys in recent years in connection with their representation of drug or mob clients. A federal judge in 1991 disqualified two prominent New York lawyers from an organized crime trial after prosecutors charged that they were part of their client’s criminal enterprise.
One of the San Diego lawyers was acquitted, a second pleaded guilty to reduced charges and a jury acquitted the third of one count and was hung on others. Former New York mob lawyer Michael Coiro was treated more harshly: He is in prison, convicted in 1989 of racketeering on behalf of Gambino crime family clients.
The arrest of Hallinan underscored the dangers of representing major drug dealers and other clients who may be under federal investigation. Federal agents searched his law offices and home, and the government wants to seize his practice.
Some attorneys suggest that Hallinan may have been asking for trouble if he did what prosecutors charge: putting money that belonged to the client into his personal bank account, purportedly to shield it from the IRS, and creating a fictitious officer for an offshore corporation allegedly used to launder drug money.
Chief Assistant U.S. Atty. L. Anthony White, who is prosecuting Hallinan in Reno, said the evidence against him “goes far beyond a lawyer who was aggressive in representing his clients” and shows that he engaged in “criminal conduct.”
The sweeping indictment alleges that Hallinan was a co-conspirator in a drug-smuggling operation and charges that he told his former client to “get rid of” a cooperative government witness.
“All those San Francisco defense lawyers seem to think he is entitled to some (break) because he is a lawyer,” White said.
The arrest of so prominent a lawyer caused an uproar. His father, Vincent, was a legendary trial attorney. His brother, Terence, is a member of the San Francisco Board of Supervisors.
Patrick, 59, nicknamed Butch, is widely liked and considered an excellent trial attorney. Jurors are said to love his gentlemanly style, his unassuming manner. Prosecutors tend to respect him.
“Pat is a wonderful man,” said U.S. Atty. Yamaguchi, who is not involved in the Hallinan case. “He’s a surgeon when he does cross-examination. He doesn’t pound it out of witnesses. He just goes through and makes the right cuts.”
Hallinan’s pending trial this summer has only magnified the tension festering in the defense bar since the government stepped up prosecution of drug and white-collar criminals a decade ago.
North Carolina attorney Beskind said he switched to a civil practice eight years ago because his “paranoia” about government prosecutors began to interfere with his obligations to his clients. “Everything you did, you had to worry about,” said Beskind, a senior lecturer at Duke University Law School. “Not whether it was right or wrong, but could it be misconstrued.”
The final straw, he said, came when a federal prosecutor threatened Beskind and his partner with an obstruction of justice indictment for their handling of a union client accused of stealing federal funds.
The client used information the attorneys gave him in a union election against an opponent, who happened to be a cooperative government source. Federal prosecutors charged that the lawyers had attempted to punish the government witness, Beskind said.
Although the lawyers were not indicted, the threats were unnerving. “It required us to hire a lawyer and turn our focus away from our client to worrying about ourselves,” Beskind said.
David F. Axelrod, who prosecuted lawyers as a former assistant U.S. attorney in Florida, said racketeering laws and other federal statutes aimed at drug dealers give the Justice Department “powerful weapons” that create “an enormous potential for mischief.”
Now that Axelrod defends people accused of white-collar crime, the Columbus, Ohio, lawyer strives to be cautious: “I always try and talk to clients as if I am being recorded.
“It can sometimes make it more difficult to establish a relationship of trust.”
Yamaguchi said it is not uncommon for a prosecutor to pick up the telephone and hear an accused criminal offer evidence against his lawyer. “Then you say: ‘Buddy, I can’t talk to you,’ and you hang up,” Yamaguchi said. “If a defendant is willing to turn in his lawyer, he is willing to turn in you.”
Nonetheless, the once chummy relationship between prosecutors and defense attorneys has largely vanished. The “code of honor” between attorneys, the frank, open exchanges and the drinks after a day in the courtroom gave way to distrust during the war on drugs in the 1980s, Yamaguchi said.
“Everybody got tainted,” he said. Some defense attorneys got too close to their drug-dealing clients. Some prosecutors engaged in misconduct in the government’s zeal to nab drug dealers, he said, and judges were split into two camps--the pro-war and the anti-war.
That “was just a very terrible time for the bench and bar,” he said. “It divided people, just like the Vietnam War or the Civil War. . . . We lost a lot of ourselves in that.”
The war on drugs had other effects on the legal profession. It created a new pool of affluent defendants, attracting more lawyers to criminal defense work. A few got rich.
“There is no question that some prosecutors resent the fact that I may have earned large fees,” said Barry Tarlow, a nationally prominent criminal defense attorney, who is believed to earn $500,000 to $1 million a year.
Tarlow has the trappings of wealth that many people might envy. He drives a black Jaguar convertible. His second car is a navy blue limousine. And he lives in Bel-Air.
During the 1970s, Tarlow obtained the release of a man accused of drug crimes. He said his client was arrested not long afterward by Los Angeles police on another drug offense. The client, according to Tarlow, was released on bail the second time after he lied to the police, claiming he could implicate Tarlow in his crimes. Because of the age of the case, a spokesman for the Los Angeles police could neither confirm nor discount Tarlow’s version.
The client arrived for an appointment at Tarlow’s office, according to the attorney, and then picked up a paper and pen off his desk.
“Don’t say anything,” he wrote. “I am wired. Tell me to come back tomorrow.”
Tarlow said he followed his instructions, and the client jumped bail and eluded the police for 10 years.
For Tarlow, who primarily defends white-collar suspects, the episode was a lesson in the power of the government to try to entrap attorneys by promising leniency to their clients.
A former federal prosecutor, he and many other lawyers follow certain rules “for staying out of trouble.” He does not invest with his clients. He will not pass on messages for clients and their associates: He could be accused of helping to arrange a crime.
He does not socialize with his clients. He will not purchase property for them, just in case the property might one day be used in a crime. He does not accept gifts, for fear of possibly being accused of accepting stolen property.
Some defense lawyers note that attorneys who represented certain kinds of clients have always received government scrutiny. For instance, lawyers defending leftist radicals during the 1960s and 1970s found themselves and their offices under FBI surveillance.
New York criminal defense attorney Gerald Lefcourt, who helped famous fugitives surrender, including former radical Abbie Hoffman, said each time he has been approached by people he assumed were undercover government agents.
“I have had people come to me and ask me to do illegal things,” such as helping them jump bail or obtain false identification, he said. “Do I know for sure they were sent by the government? I can’t be sure, but people involved in crime don’t come off the street and get a stranger and ask him to do something illegal.”
Lefcourt is now handling cases for attorneys facing stiff fines because they did not tell the IRS the names of clients who paid them more than $10,000 in cash.
During the first eight months of 1983, 465 of 796 lawyers who filed the tax form on cash receipts left it incomplete, said an IRS spokeswoman. They face fines of as much as $100,000 for each form filed without the client’s name.
Though the reporting requirement applies to other trades and businesses besides lawyers, some Bar associations prohibit attorneys from identifying their clients without a court order.
A client with no visible means of income would appear suspicious if his lawyer reported that he paid him $80,000 in cash. Many clients also do not want to leave a trail showing they consulted a criminal defense attorney, particularly if they are not yet under suspicion.
But the IRS said the forms are important in tracking down narcotics traffickers and other criminals and note that courts have ruled that such disclosures do not violate client confidences.
Defense lawyers also risk losing their fees if the money was earned in crime or laundered. Willful blindness is no defense. A Justice Department spokesman said the government has confiscated attorney fees in 65 to 70 cases since 1985.
That does not seem like many, but Genego and other lawyers contend that it is misleading. Lawyers often drop clients as soon as prosecutors threaten to forfeit their fees, making forfeiture unnecessary.
Genego said he may have to drop a client who paid him an “asset” he would not identify because a federal prosecutor has threatened to forfeit it.
“There are dirty lawyers out there and some need to be prosecuted,” Genego said, but he believes the government has gone too far in some cases. “It intimidates the private defense bar.”
Next: Ethical dilemmas in the criminal defense bar.
Eighty percent of 1,648 criminal defense attorneys responding to a survey said they believe the U.S. Justice Department intentionally prosecuted attorneys to inhibit zealous representation of defendants. Sixty-seven percent said they had been the object of actions by federal prosecutors. Here are the types of actions and the percentage of attorneys who reported being subjected to them: Confidential informants used against them: 39% Disqualification sought: 26% Fee questioned: 21% Grand jury subpoena: 18% IRS summons: 11% Law office searched: 3% Source: William J. Genego, University of Southern California Law School