Court OKs Searching Lawyers, Even as Clients Face Grand Jury

A lawyer’s right to practice his profession does not include freedom from being searched, even at the moment his client is before a grand jury, the Supreme Court said Monday in a Los Angeles case that sprang from the Menendez brothers’ murder trial in the deaths of their parents.

The 9-0 ruling throws out for now a lawsuit brought against two Los Angeles County prosecutors, David Conn and Carol J. Najera.

In 1994, after the first Menendez trial ended in a hung jury, Conn and Najera were assigned to the case. They suspected that Traci Baker, a former girlfriend of Lyle Menendez, may have testified falsely after receiving a note from him.

The prosecutors wanted the note and got a court order requiring Baker to reveal it. They also obtained a warrant for police to search her apartment. And on March 21, 1994, when Baker was to appear before a grand jury, they obtained a warrant to permit a search of her lawyer, Paul Gabbert, when he accompanied her there.

While she went behind the closed doors of the grand jury, Gabbert was taken down the hall to a room to be searched. When Baker emerged to consult with her lawyer, he was unavailable.

Believing the search to be illegal harassment of an opposing lawyer, Gabbert sued the two prosecutors and won a preliminary victory from the U.S. 9th Circuit Court of Appeals last year. It ruled that the 14th Amendment’s protection of individual liberty was violated by the search.

The prosecutors in turn appealed to the Supreme Court. Skeptical of broad claims based on the Constitution, the justices said that no such right exists, at least under the 14th Amendment.

This grudge match is not over yet, however. The court left open the possibility that Gabbert could sue the prosecutors under the 4th Amendment for an “unreasonable search.” The dispute (Conn and Najera vs. Gabbert, 97-1802) now returns to a trial judge in Los Angeles.

Conn, who has since left the prosecutor’s office, said he was pleased but not surprised by the outcome. “We had a search warrant and we never intended to annoy anyone or violate anyone’s rights,” he said.

Gabbert, too, said he was not surprised, since the justices made clear their opinions during a Feb. 23 argument in his case. “It was crystal clear how this would come out,” he said.

His attorney, Michael Lightfoot of Los Angeles, said that he was dismayed by the high court’s refusal to rein in “overzealous interference” by prosecutors.