This seems like a no win situation for attorneys.  Efforts to represent clients can take on many forms.  I have watched two opposing attorneys go at each other, like they were in the ring for a WWF match.  And like the wrestlers in a WWF match, when it was over, leave together acting like best buddies. It seems the ABA rule would further restrict an attorney’s ability to practice, speech-code-for-lawyers.

I used to spend a lot of time debriefing defendants who agreed to cooperate with the government, in exchange for consideration at sentencing. Those defendants that were in custody were brought over to the Federal Courthouse. The air conditioning system for the courthouse was totally inadequate to meet the needs of the building.  Except in one room that I know of. 

The courthouse is four floors.  This particular suite is on the third floor and is located in the core of the building, no exterior doors.  Once a month it was the grand jury room.  The rest of the time it could be used as a meat locker.  This is where we met defendants.  A typical meeting was comprised of an Assistant United States Attorney, one to three agents, the defendant and his attorney.

The defendant is gambling that he can tell a little and get a lot in exchange.  The agents want everything he knows on a particular topic and anything else he is willing to give up.  The agents go into the interview looking for confirmation on certain aspects.  It isn’t did you do it? It is more, what happened before and after you did it?  Who held the flashlight?  This jockeying for position can sometimes get loud and contentious.

Most defense attorneys make sure that the defendant understands the agreement and is willing to go through with it.  They then step back and allow the conversation to proceed.  There usually isn’t a lot of objections, or issues to be resolved.  In one particular instance a defendant was being represented by a relatively new attractive female attorney. We didn’t know her and she didn’t know us. From the start the AUSA was spending more time jousting with the attorney than we were in talking to her client. It got to the point where both sides agreed to take a break.

On this particular day we had a third investigator who was there to observe the process.  He knew nothing about the case and had nothing to offer.  I gave him an assignment, that he was able to carry out.

We returned to the grand jury room which was living up to its reputation as a meat locker.  We began again.  I said at the outset that the defendant’s attorney was attractive, she also had a pretty good rack on her. In response to the cold that rack was performing heroically, can you say starter button on a 32 Ford?

The third investigator gave that starter button his undivided attention. Apparently she was unable to talk with her arms crossed her chest and we were able to complete the interview.  In due time the defendant got his consideration. I guess that would be a violation of ABA rules.

My question is do these rules open up a whole new venue for appeals? The leftist playbook calls for actions that demonstrate the system does not work. The ABA rules seem to play right into that philosophy.