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SUPREME COURT, STATE OF NEW YORK COUNTY OF NEW YORK: PART 1
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In re MATTER OF GRAND JURY SUPOENA SERVED UPON VINOO VARGHESE
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Of Counsel:
MEMORANDUM OF LAW IN SUPPORT OF VINOO VARGHESE'S MOTION TO QUASH
SUBPOENA TO HIM DATED OCTOBER 16,2013
GOLDMAN and JOHNSON Attorneys for Movant
Vinoo Varghese 500 Fifth Avenue, Suite 1400 New York, NY 10110 (212) 997-7499
Lawrence S. Goldman ([email protected]) Elizabeth M. Johnson ([email protected])
SUPREME COURT, STATE OF NEW YORK COUNTY OF NEW YORK: PART 1
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In re MATTER OF GRAND JURY SUPOENA SERVED UPON VINOO VARGHESE
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MEMORANDUM OF LAW IN SUPPORT OF VINOO VARGHESE'S MOTION TO QUASH
SUBPOENA TO HIM DATED OCTOBER 16,2013
Introduction
Demonstrating a remarkable insensitivity to, if not outright disdain for, the
role and responsibilities of criminal defense counsel to provide constitutionally
effective representation pursuant to the United States and New York State
Constitutions, the District Attorney has issued a grand jury subpoena to defense
counsel representing a defendant in a pending criminal case, intending to
question him about his interview(s) with a witness in that case with the intent to
use information from the attorney to secure an indictment of the lawyer's client.
This subpoena followed a blunderbuss search warrant under which the District
Attorney seized appro)(imately four hundred (400) privileged email
communications between the attorney and his client. The subpoena clearly calls
for the attorney's privileged work product, interferes with his representation of the
accused in a pending case, and is an impermissible intrusion into the attorney's
constitutional obligation to provide effective representation and his client's
constitutional rights to due process and effective representation. It is further
tainted by the NSA-Iike seizure of the 400 privileged attorney-client
conversations. If the Court does not reject this extraordinary prosecutorial
intrusion, no criminal defense attorney, at least in New York County, will feel free
to interview witnesses or communicate by email with clients. The subpoena must
be quashed.
POINT I
A DEFENSE LAWYER NEED NOT DISCLOSE TO A GRAND JURY INFORMATION GAINED DURING
HER PREPARATION FOR A PENDING CASE
A. Case Law Uniformly Holds That An Attorney In a Pending Case May Not Be Required to Testify as to Work Product
The prosecution in this case has issued a subpoena to attorney Vinoo
Varghese seeking testimony relating to a witness in the case pending against his
client with a view to seeking an indictment against both the witness and his client.
Counsel have not found a single case in which a court has allowed a
prosecutor to require a defense attorney representing a defendant in a pending
case to disclose the existence or substance of her interview with a witness in that
case. 1 By seeking information relating to Mr. Varghese's investigation and trial
preparation, the District Attorney is attempting to invade the work-product
privilege and obtain information to which he is not entitled.
Counsel have not even been able to find a single case in which a New
York prosecutor even sought such an order or issued a subpoena for such
disclosure in such a situation. No doubt the absence of such cases is due to the
1 Counsel may be required to disclose such information at trial if the witness is called by the defense. People v. Damon, 24 N.Y.2d 256, 299 N.Y.S.2d 830 (1969).
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rarity of a prosecutor's taking such an aggressive, virtually unprecedented,
action.
The seminal case in this area is Matter of Terkeltoub, 256 F.Supp. 683
(S.D.N.Y. 1966), written by the venerated Judge Marvin Frankel. There, on facts
strikingly similar to those here, the court upheld a defense attorney's refusal to
provide testimony to a grand jury investigating a conspiracy to commit perjury
about the time, manner and purpose of an interview with a witness.2
Terkeltoub represented one Fiorillo in a pending case involving alleged
perjury by the defendant in denying he had certain telephone conversations with
one Vone. The prosecutor, claiming that he had reliable specific information that
Fiorillo and Terkeltoub in a meeting with Vone had attempted to bribe or
otherwise persuade Vone to testify falsely that he did not have such
conversations with Fiorillo, called Terkeltoub before a grand jury to ask him
questions about the alleged meeting. Terkeltoub refused to answer questions
based on his client's rights to due process under the Fifth Amendment and the
effective assistance of counsel under the Sixth Amendment. )Q. at 683-84.
The court, while recognizing the need of the grand jury to investigate and
the government's "laudable purpose" to protect the integrity of the judicial
process, held that Terkeltoub "was not only entitled but probably required to
withhold answers to the grand jury's questions." )Q. at 684. The court found that
the information sought "touch[ed] a vital center in the administration of criminal
2 Terkeltoub has been cited approvingly or uncritically by twenty-two (22) other courts, including the United States Supreme Court. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170 (1975).
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justice, the lawyer's work in investigating and preparing the defense of a criminal
charge." JQ. at 684.
The court found that the demand that Terkeltoub testify- "a demand that
a lawyer be forced to testify about his work in supposed defense of a client" was
"troublesome on its face." ld. at 685. Such a procedure, said the court, "must
have at least a slightly chilling impact upon counsel for defendants in criminal
cases." ld. at 685.
The court also found particularly troublesome the timing of the subpoena -
at "perhaps the most critical period of the proceedings ... from the time of
arraignment until the beginning of ... trial, when consultation, thorough-going
investigation and preparation [are] vitally important." ld. at 685 (citing Powell v.
Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 60 (1932)). "At the heart of the job of
'thorough-going investigation and preparation' is the interviewing of prospective
witnesses, hostile as well as friendly. And no lawyer, on any side of any case,
would consider it salutary for his client that the opposition knew who was being
interviewed and what was said." ld. at 685 (emphasis added).
Thus, the court, declaring the "ultimate interest to be protected is the
privacy and confidentiality of the lawyer's work in preparing the case," id. at 685,
concluded that the prosecutor could not by grand jury subpoena compel
Terkeltoub to answer questions about his interview with a witness. The court
answered in the negative the virtually identical question presented in this case
"Where the prosecutor, presumably with reason, suspects that a witness is being
tampered with, may the defense lawyer preparing for trial be compelled to report
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the existence, time, place, and context of an interview with the witness?" !Q. at
686.
To be sure the court, "out of abundant caution" did not make its answer
absolute, recognizing that "still more rare circumstances" might conceivably
justify a subpoena of this kind. ld. at 686. No such circumstances are present
here. Indeed, the facts in Terkeltoub were considerably more supportive of the
prosecutor's demand than the facts in this case. In Terkeltoub, unlike here, there
was an apparently considerable basis to believe Terkeltoub himself was involved
in the alleged criminal behavior, that his client was present at the meeting, and
that the meeting was other than a proper part of the attorney's constitutionality
mandated preparation. Here, there is no basis to believe Mr. Varghese was
involved in wrongdoing, that he met with the witness together with the defendant
(or others not part of the defense team), or that any interview with the witness
was other than an ordinary interview conducted as part of diligent preparation by
competent counsel. The prosecutor here, unlike the prosecutor in Terkeltoub,
has provided no basis to believe that the subpoena is anything beyond "a fishing
expedition."
In Matter of Grand Jurv Proceeding (Duffy), 473 F.2d 840 (81h Cir. 1973), a
federal Court of Appeals went beyond the Terkeltoub decision in reversing the
civil contempt conviction of an attorney- not as here the trial attorney in a
pending case- who refused to divulge information furnished to him by potential
witnesses during his investigation prior to any charges being filed. Duffy, an
attorney for a gas company under investigation, had interviewed witnesses,
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including employees of the company and others, in anticipation of potential
litigation. Called before the grand jury to testify, Duffy refused to disclose
communications with the non-employees he interviewed,3 was held in contempt
by the district court, and appealed. !Q. at 841. The issue, similar to that here, as
framed by the Eighth Circuit, was:
Whether the work product doctrine operates to excuse an attorney from testifying before a grand jury with respect to ... recollections of conversations in anticipation of litigation with persons [other than employees of his client corporation).
The government sought to distinguish Terkeltoub on the grounds that it was
based on Fifth and Sixth Amendment grounds that were not present in the case,
apparently since Duffy, unlike Terkeltoub, was not at the time actually
representing a criminal defendant in a pending case. The Eighth Circuit based
its decision on the work-product aspect of the Terkeltoub decision, quoting the
decision extensively and noting that the facts in Terkeltoub- involving a
conversation allegedly dealing with the commission of a crime -were far more
compelling for disclosure than the facts in the case before it, and that there was
no credible showing that Duffy had in his interviews engaged in the commission
of a crime. Similarly, here, there is no such showing regarding Mr. Varghese.
The Eighth Circuit held that communications between Duffy and the
prospective witnesses were protected by the work-product privilege and that
Duffy could not be compelled to testify about them. The court, after an
3 It had been previously determined that conversations with Duffy's corporate client's employees were protected by the attorney-client privilege. This case involved the attorney work-product privilege.
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exhaustive inquiry into the history and policy supporting the work-product
privilege, stated:
Although the above-noted policies supporting protection of an attorney's work product were stated with reference to civil litigation, they are even rnore strongly applicable in criminal proceedings. There is an "especially strong tendency toward the protection of materials as the 'work product' of an attorney in criminal cases. Thus, in relevant criminal cases (admittedly few), the courts have consistently held statements by witnesses ... to be 'work product' of an attorney."
.!Q. at 846 (citations omitted; emphasis added).
The Duffy court also held that disclosure of the substance of a witness'
statements would provide to the prosecution discovery not afforded by the
Jencks Act, id. at 848-49, the federal functional equivalent of Rosario
requirements. See,§&., People v. Lunney, 84 Misc.2d 1090, 1092-93, 378
N.Y.S.2d 559, 562 (Sup. Ct. N.Y. Co. 1975). Similarly, Mr. Varghese's testimony
here would provide the District Attorney (and the assistant district attorneys
prosecuting defendant Hovan) with discovery to which they are not entitled.
Matter of Rosenbaum, 401 F.Supp. 807 (S.D.N.Y. 1975) (Duffy, J.), is
further support for the petitioner's motion. Rosenbaum, a criminal defense
attorney representing a defendant, had a conversation during the trial with a
witness, Lucio, concerning testimony Lucio had already given. He then asked
the court to strike Lucio's testimony on the grounds it was at least partly
untruthful, and the court struck the testimony and the trial proceeded. After the
trial concluded, the government sought an order compelling Rosenbaum to testify
before a grand jury about that conversation. The court denied the government's
request, stating, "I believe that the work-product privilege, which in the criminal
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context, reflects both fifth and sixth amendment concerns, prevents the grand
jury from compelling Rosenbaum to testify, in effect against his former client,
concerning the conversations with Lucio, despite the government's good cause."
!Q. at 808. The Rosenbaum court also stated without qualification: "During the
course of a criminal trial the work product privilege prevents the government from
acquiring through the grand jury material to which it would not be entitled under
the provisions governing discovery in criminal cases," citing Terkeltoub. !Q. at
808 fn. 4.4
Here, as Terkeltoub, In re Grand Jury Proceedings (Duffvl, and
Rosenbaum, the District Attorney seeks the substance of conversations between
Mr. Varghese and a potential trial witness -- a demand that is "troublesome on its
face." Terkeltoub, supra, at 685. "It is clear that ... personal recollections,
notes, and memoranda pertaining to" conversations with prospective trial
witnesses "are within the rubric of the work product definition." In re Grand Jury
Proceedings, supra, at 848. Here, as in Rosenbaum, forcing Mr. Varghese to
testify would require Mr. Varghese "to testify, in effect, against his []client," a
prospect that violates the "work product-privilege, which in the criminal context
reflects both fifth and sixth amendment concerns." Rosenbaum at 808; see also ---
Terkeltoub at 685. As in Terkeltoub, Mr. Varghese is "not only entitled, but
probably required, to withhold" the requested testimony from the grand jury.
4 Of perhaps more of historic interest than direct relevance (although at least as relevant as lawyers' fees cases like Priest v. Hennessy. infra}, over 60 years ago, during the "red scare" era at about the time of the espionage trial of Julius and Ethel Rosenberg, Southern District of New York Judge Gregory Noonan denied a motion by the United States Attorney to hold in contempt attorney Victor Rabinowitz for having refused to testify before a grand jury about a meeting he had with four of his clients. The United States Attorney's actions have been described by
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Terkeltoub at 684. Mr. Varghese, on behalf of his client, is entitled to withhold
such testimony because he "has a right to prepare in secret, seeing and inviting
those he deems loyal or those with whom he is willing to risk consultation." !Q,
The subpoena must be quashed because the People are attempting to
circumvent the attorney work product privilege, which protects Mr. Hovan's Fifth
and Sixth Amendment rights, as well as his rights in Article I, Section 6 of the
New York State Constitution.5
B. New York Courts, Even in Cases Not Involving Work Product, Have Set Stringent Safeguards Concerning Subpoenas to Attorneys
There are no reported New York cases in which an attorney in a pending
case has been subpoenaed to testify about his inteNiew of a potential witness,
and accordingly, there is no New York case in which a court has ordered such
testimony. It is not unexpected that few, if any, prosecutors would have issued
such a subpoena given the broad extent of New York courts' respect for a
defendant's constitutional right to counsel of choice, since her testimony in a
grand jury will likely require disqualification of the attorney. See, ~. People v.
Griffin, 20 N.Y.3d 626, 964 N.Y.S.2d 505 (2013) (conviction reversed for denial of
counsel of choice when Legal Aid Society dismissed due to new assigned
attorney's inability to be ready on trial date); People v. Arroyave, 49 N.Y.2d 264,
historians as "a blatant abuse of the grand jury to intimidate a member of the bar." Ronald Radosh and Joyce Milton, The Rosenberg Files 311 (Yale Press 1997, 2d Ed.). 5 Neither Terkeltoub, Qjjffy or Rosenbaum considered the "relevance" or "necessity" of the testimony sought. Relevance or necessity should be considered only after the prosecutor demonstrates the threshold requirement that the information is not privileged. If relevance were the determinative criterion, Terkeltoub and Rosenbaum, both cases where there was a demonstrated likelihood that the attorney had direct knowledge of perjury, would have undoubtedly gone the other way.
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270, 425 N.Y.S.2d 282, 285 (1980) (right to counsel includes "opportunity to
select and retain counsel" of choice). New York courts have historically extended
protections to the right to counsel beyond those protections provided by federal
law. £.&.,People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207 (1980)
(represented defendant may not be questioned in the absence of counsel even if
he is not in custody); People v. Rogers, 48 N.Y.2d 167,472 N.Y.S.2d 18 (1979)
(if a defendant in custody has counsel in one matter he may not be questioned
regarding that or unrelated matters); People v. Arthur, 22 N.Y.2d 325, 292
N.Y.S.2d 663 (1968) (rule precluding police questioning after attorney has
entered proceeding based on state constitution).
This concern for the right to counsel and the attorney-client relationship
has led New York courts to impose stringent limitations upon any subpoena to
counsel in a pending criminal case, even when the information sought has been
determined to be non-privileged. Under New York law, in order to require
counsel in an ongoing representation to appear before a grand jury, the
prosecution must demonstrate, after there has been a threshold determination
that the testimony or physical evidence is not privileged, relevancy, good faith
and a lack of alternative sources for the evidence sought.6 In re Stewart, 144
Misc.2d 1012, 545 N.Y.S.2d 974 (Sup. Ct. N.Y. Co. 1989) (Snyder, J.), aff'd in
6 The sole case counsel have found in which a criminal defense attorney was required to produce work-product to a grand jury, Matter of Subpoena Duces Tecum upon Giovinazzo, 86 Misc.2d 751, 382 N.Y.S.2d 243 (Sup. Ct. Richmond Co. 1976), is both clearly distinguishable and somewhat peculiar. There, the former attorney of two targets retained a witness's sworn statement that the prosecutor believed was both inconsistent with the witness's grand jury testimony and "may exculpate the targets of the grand jury investigation or some of them." Thus, the subpoena called for production of formal, already-known physical evidence held by a former attorney that might provide exculpatory evidence. Here, the subpoena calls for testimony by a target's current attorney in the hope that it will be inculpatory.
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relevant part, 156 A.D.2d 294, 548 N.Y.S.2d 679 (1 51 Dep't 1989), .§QQ.
dismissed, 75 N.Y.2d 1005, 557 N.Y.S.2d 312 (1990); see also In re Stolar, 196
Misc.2d 175, 177, 763 N.Y.S.2d 896, 897 (Sup. Ct. N.Y. Co. 2003) (trial
subpoena to counsel seeking fee information quashed). These requirements
recognize the "inevitable 'chilling effect' that the very summoning before the
Grand Jury has" on the attorney-client relationship. In re Stewart, 156 A.D.2d at
294, 548 N.Y.S.2d at 680. And even if these conditions are met, courts strive to
minimize any intrusion into the attorney-client relationship.
In Stewart, the First Department stayed enforcement of a subpoena
seeking non-privileged fee information until after the conclusion of the underlying
representation.7 156 A.D.2d at 294, 548 N.Y.S.2d at 680 (staying testimony until
termination of representation in order to ameliorate "chilling effect" on attorney-
client relationship). And, recently, in a coincidentally named case, In re M.B., 39
Misc.2d 1208(A), 971 N.Y.S.2d 72, 2013 WL 1444644 (Sup. Ct. Bronx Co. 2013),
the court in addressing a subpoena for physical evidence, a videotape taken by a
third party but in counsel's possession, required that the tape be produced
because it was not in any way privileged. However, in order to minimize damage
to the attorney-client relationship, the court prohibited the attorney's personal
appearance before the grand jury and ordered that "the Grand Jury shall not be
7 Cases involving grand jury subpoenas seeking information about the source or amount of payment of an attorney's legal fees are of little if any relevance here since information concerning attorneys' fees is not privileged work-product or protected by the attorney-client privilege. Priest v. Hennessy. 51 NY.2d 62, 431 N.Y.S.2d 511 (1980). In the case described above, In re Stewart, supra, where the Appellate Division, First Department, honoring an accused's choice of counsel, saw fit to postpone enforcement of a subpoena of an attorney in a pending case until the case was concluded. In re Stewart, 144 Misc.2d 1012, 545 NY.S.2d 974 (Sup. Ct. N.Y. Co. 1989), the lower court decision that was modified. also a legal fees case, is of little relevance and
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informed that M.B. or any employee of the Bronx Defenders was in possession of
such videotape." 2013 WL 14444644 at *8.
We assert that a subpoena to an attorney representing a criminal
defendant in a pending case related to her work product in the case should never
be granted. And, even when a subpoena seeks non-privileged information, the
standard for enforcement should be stringent. Even the United States
Department of Justice Manual had provided that attorneys should not be
subpoenaed without a "showing that the information reasonably is needed for the
successful completion of an investigation." Title 9, U.S. Attorney's Manual
9.216(a) (emphasis added) (quoted in Stewart, 144 Misc.2d at 1025, 545
N.Y.S.2d at 983).
Here, there has been no demonstration that Mr. Varghese's testimony is
"needed" or "relevant." All the District Attorney claims is that Mr. Varghese "had
interactions at relevant times" with M.B. and that she "offered conflicting factual
narratives," arguing his hoped-for testimony would be "relevant." Essentially, he
can only speculate that it might be relevant.8 Thus, this is a classic "fishing
expedition." While the District Attorney may have a legitimate interest in what
Mr. Varghese would say, he has not demonstrated any "need" for, let alone the
relevance of, his testimony. Speculation that it will be helpful is insufficient. The
District Attorney must demonstrate that it will be probative. See In re Stolar, 196
certainly no precedential value here. It did not involve an attorney's preparation in representing a defendant in a pending case, and therefore did not deal with work-product. 8 We respectfully object to the court's consideration of ex parte statements of evidence by the District Attorney, see Terkeltoub, 256 F.Supp. at 686, although we acknowledge and appreciate the opportunity given the defense to present its ex parte explanation. The prosecutor's proffer, we suspect, was based largely on a statement by M.B., who the prosecutor clearly believes is a
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Misc.2d at 178, 763 N.Y.S.2d at 898 ("'tis not enough that the People are
curious"); In re Stewart, supra. The District Attorney should at the least be
required to demonstrate that Mr. Varghese's testimony is "needed" and that
without it he is unable to secure an indictment. Cf. CPL § 450.50(1) (to appeal
denial of motion to suppress, prosecutor must aver that without the suppressed
evidence, he would be unable to secure conviction).
Thus, while there is no New York case directly on point, New York law
clearly directs the same result as the governing federal cases. New York's
general concern with the protection of the attorney-client relationship and the
right to counsel as well as the specific limitations it has imposed on subpoenas to
attorneys in pending matters even in the absence of privilege issues require that
the subpoena to Mr. Varghese be quashed.
POINT II
THE SUBPOENA IMPERMISSIBLY INTERFERES WITH THE
ATTORNEY-CLIENT RELATIONSHIP, THE CLIENT'S RIGHT TO EFFECTIVE
COUNSEL AND THE LAWYER'S OBLIGATION TO PROVIDE SUCH
Aside from the uniform case law proscribing demands to criminal defense
attorneys to testify about interviews with witnesses (even after their involvement
or representation in the case), there are important public policy reasons to
prohibit such a practice.
perjurer. The prosecutor should not be allowed to speak out of both sides of his mouth- calling her a liar, yet relying on the truth of her statements that suit him.
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A requirement that the attorney divulge what she learned from witnesses,
as Judge Frankel understated, "must have at least a slightly chilling impact upon
counsel for defendants in criminal cases." Terkeltoub, 256 F.Supp. at 685. Such
a requirement stands the constitutional requirement of effective representation on
its head. It would deter attorneys from seeking out and questioning witnesses
out of fear that they might find information adverse to their clients which the
prosecution could use to its advantage. It would deter attorneys from seeking out
favorable witnesses prior to trial since they would fear that disclosure will allow
police and prosecutors to pressure them concerning their prospective testimony.
It will inhibit the effective and thorough investigation that is the hallmark of a
defendant's Sixth Amendment and Article I, Section 6 right to effective
representation. See,~. People v. Bennett, 29 N.Y.2d 462, 379 N.Y.S.2d 801
(1972); People v. Droz, 39 N.Y.2d 457, 384 N.Y.S.2d 457 (1976); United States
v. Caracappa, 614 F.3d 30 (2d Cir. 201 0).
Any subpoena to a defense attorney, particularly to an attorney
concerning his client in a pending case, will deter vigorous advocacy. It will allow
the District Attorney to punish attorneys who fight for their clients beyond the
bounds that the prosecutor believes are appropriate, and to deter attorneys, for
instance, from bringing motions based on prosecutorial misconduct, as
Mr. Varghese has, freeing prosecutors to violate their Brady obligations, among
other improprieties.
Responding to a subpoena costs an attorney time, money and
aggravation. A less concerned and courageous attorney than Mr. Varghese may
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decide that the easier course would be to provide the prosecutor the information
he desires, however great the detriment to her client. Mr. Varghese,
demonstrating his concern for his client, the criminal defense bar and the federal
and state Constitutions, as a member of the National Association of Criminal
Defense Lawyers (NACDL) and New York State Association of Criminal Defense
Lawyers (NYSACDL) sought and has received pro bono representation from
experienced counsel through the Associations' Lawyers Assistance Strike
Forces. An attorney not a member of such an organization could be required to
pay thousands or tens of thousands of dollars of his own money to challenge the
subpoena.
Further, the ability to subpoena a defense lawyer in a pending case
essentially gives the prosecutor the right to disqualify counsel. An attorney who
testifies to the detriment of his client, as the prosecutor presumably believes
Mr. Varghese will if forced to testify, will likely be disqualified. Even if
Mr. Varghese were to give benign testimony, there is still some possibility he
would be disqualified from continuing as Mr. Hovan's counsel. The prosecutor
should not be allowed to choose his adversary and eliminate a defendant's
counsel of choice. "[C]ourts must remain sensitive to the benefits which both the
defendant and the legal process derive from permitting the criminally accused to
obtain counsel of his own choosing .... " People v. Arroyave, 49 N.Y.2d at 271.
Such "benefits" can include a greater "atmosphere of trust and respect,"
Arroyave, 49 N.Y.2d at 271, between defendant and his counsel which flows
from allowing "the accused [to] be defended by the counsel he believes to be the
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best." United States v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557,
2559 (2006). See,~. Arroyave, 49 N.Y.2d at 273 ("constitutional guarantee to
be represented by counsel of one's choosing is a fundamental right"). People v.
Griffin, supra.
And, it is likely that the mere fact that his attorney testified in secret before
a grand jury would destroy the confidence a client has in the attorney. Requiring
an attorney to testify is damaging to the "sensitive and trusting relationship"
between client and attorney. Stolar, 196 Misc.2d at 177, 763 N.Y.S.2d at 898. It
certainly would deter open and forthright discussion between attorney and client.
If prosecutors are allowed to subpoena defense attorneys to testify
concerning their present (and even their former) clients, defendants would be far
less likely to volunteer information and be candid with their attorneys. They
certainly will be more reluctant to provide their attorneys with the names of
potential witnesses. A defense attorney would have a much more difficult, if not
impossible, opportunity to provide constitutionally effective representation,
whether crafting a trial defense or providing advice whether to plead guilty.
The criminal justice system is built, like a three-legged stool, upon three
components- the judiciary, the prosecution and the defense- and works best
when there is mutual respect among and between them. The nearly
unprecedented subpoena here, to a defense lawyer in a pending case
concerning his preparation in that case, cuts one of the legs of that figurative
stool, tipping the balance further in favor of the prosecutor. The subpoena
disrespects the defense bar and disrespects the constitutions of this nation and
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state. It is no surprise that there is virtually no New York case law concerning
such a subpoena. Few, if any, New York prosecutors have ever directed such a
subpoena.
POINT Ill
THE MASSIVE SEIZURE OF 400 PRIVILEGED A DORNEY-CLIENT COMMUNICATIONS
REQUIRES GRANTING THE MOTION TO QUASH
The massive invasion into the sanctity of the attorney-client relationship by
the prosecutor's seizure of four hundred (400) privileged communications itself
requires the court to quash the subpoena.
Here, the District Attorney, during the pendency of a case against the
defendant Hovan, sought and received from a compliant judge four search
warrants calling for all "read and/or stored e-mail messages" of that defendant.
Certainly, the prosecutor (and the judge) contemplated or at the very least should
have realized that among those messages undoubtedly were privileged attorney
client communications. Knowledge that there was a pending case against a
represented defendant demands special precautions. See Rogers, 48 N.Y.2d
167, 472 N.Y.S.2d 18 (defendant who is represented may not be questioned
while in custody regarding not only the matter in which he is represented but
other unrelated matters). Yet the warrants contained no limitation, restriction or
precaution relating to these communications. The warrants thus allowed the
prosecutors to rummage through the confidential attorney-client privileged
conversations between Mr. Hovan and Mr. Varghese about strategy, witnesses,
17
facts, and the like. Such an at the least reckless intrusion requires severe
sanction.
The specific clauses in the warrant relating to the pending grand jury
investigation covering perjury and tampering were limited to communications
between Mr. Hovan and M.B.s On the other hand, the specific clause which
covers conversations concerning the subject matter of the indicted case
"tending to show that Richard Hovan had a relationship with students with whom
Richard Hovan has had contact with through a school"- includes not only
communications between Mr. Hovan and M.B., but between Mr. Hovan "and
others." The most likely "other" with whom Mr. Hovan would communicate
concerning the subject matter of his case, of course, is his counsel,
Mr. Varghese.
Thus, the warrant, both in general and special clauses, authorized -
generally and specifically -the seizure of privileged attorney-client
communications.
As a result, approximately four hundred (400) email communications
between Mr. Hovan and Mr. Varghese were seized.
Counsel for this motion to quash do not address the issue of whether all
items seized by this general warrant should be suppressed, or what should be its
effect on the pending indictment. We limit the relief we seek concerning this
NSA-Iike seizure of privileged communications to the motion to quash. The
absolutely improper invasion of confidentiality by seizure of 400 protected
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attorney-client communications requires that the District Attorney be precluded
from questioning Mr. Varghese, and that on this ground alone, the motion to
quash should be granted.
Because of this egregious seizure of privileged documents, conventional
analysis requiring determination of a correlation between the basis of a question
and improperly-seized items is inappropriate. It would also exacerbate the wrong
by no doubt requiring further disclosure to the prosecution (and court) of the
privileged conversations at a suppression hearing. Similarly, a deferral of the
issue until an indictment is returned will not address the wrong. Such actions will
not prevent the indelible harm to the attorney-client privilege by forcing the
attorney to respond to questions.
Additionally, whether the District Attorney belatedly, after its massive
seizure, set up on its own an in-house self-described "taint team" does not cure
the egregious intrusion. Self-imposed limitations do not cure a defective general
warrant. Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284 (2010). The seizure by
the unlimited warrant itself is a violation of the Fourth, Fifth and Sixth
Amendments of the federal Constitution and Article I, Section 12 of the New York
State Constitution and the attorney-client confidential communication privilege.
The Fourth Amendment and Section 12 prohibit "unreasonable searches and
seizures," both of which occurred here.10 The harm has been done already. The
9 Interestingly, paragraphs band c of the search warrants issued by the court are exactly verbatim. This may reflect a lack of careful review by the judge who issued the warrant, who very likely issued it exactly as presented by the District Attorney. 10 The warrant also failed to "particularly describ[e] the place to be searched" in violation of the Fourth Amendment and Article I, Section 12.
19
District Attorney never should have seized and possessed those
communications, period.
The District Attorney should not be let off the hook by a contention that the
prosecutor who intends to question Mr. Varghese was insulated from the fruits of
the vast impropriety. However, if the Court decides to allow the District Attorney
to attempt to demonstrate that there is no link between the questions to be asked
and the aggressive seizure, statements, even if sworn, that the prosecutor and
others in the prosecution team have no knowledge of the substance of the
privileged communications, should be insufficient. Such statements do not
preclude the possibility that those prosecutors indirectly gained evidence from
the communications from others. If the Court does entertain such an application,
the District Attorney should be required at a full evidentiary hearing, at which the
movant should be allowed to cross-examine and call witnesses, to demonstrate
affirmatively by at least a standard of clear and convincing evidence that his
proposed questions are not in any way directly or indirectly derived from the
seizure.
CONCLUSION
We do not believe that the District Attorney's subpoena of counsel or his
wholesale seizure of his confidential communications with his client were
designed to deter effective advocacy in trial preparation and investigation by the
defense bar or to limit client communication between attorneys and clients. We,
however, do believe that the District Attorney does not care whether it does. In
20
any case, should this Court deny Mr. Varghese's motion to quash, the result will
be the same as if that were the intent of the District Attorney. Attorneys will be
hesitant to interview prospective witnesses. Clients will be hesitant to confide in
their attorneys. Electronic conversations between attorneys and clients will
cease, or be drastically limited. Constitutionally-mandated effective
representation will end, or be redefined to lower standards.
The motion to quash the subpoena should be granted.
Dated:
Of Counsel:
New York, New York November 19, 2013
Yours, etc.,
GOLDMAN and JOHNSON Attorneys for Movant
Vinoo Varghese 500 Fifth Avenue, Suite 1400 New York, NY 10110 (212) 997-7499
Lawrence S. Goldman ([email protected]) Elizabeth M. Johnson ([email protected])
21
SUPREME COURT, STATE OF NEW YORK COUNTY OF NEW YORK: PART 1
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In re MATTER OF GRAND JURY SUPOENA SERVED UPON VINOO VARGHESE
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AFFIDAVIT OF SERVICE'
STATE OF NEW YORK ) : ss.:
COUNTY OF NEW YORK )
ANN MARIE PRUNELLA, being duly sworn, deposes and says:
1. I am not a party to this action, am over 18, years of age, and reside in Kings County, New York.
2. On November 20, 2013, on behalf of movant Vinoo Varghese, I caused to be served by Federal Express priority overnight delivery upon the individual named and at the address indicated below a true and correct copy of the annexed Memorandum of Law in Support of Vinoo Varghese's Motion to Quash Subpoena to Him Dated October 16, 2013.
Honorable Cyrus R. Vance, Jr. District Attorney, New York County One Hogan Place New York, New York 10013
Attn: Evan Krutoy, Esq.
,_.,;,taot o;,rr;ct Atto'f ze ?~-----........ ANN MA~IE PRUNELLA
Sworn to before me this
201
hda~7~ Notary Public