One thing you quickly learn as defense counsel is that the government has considerably more power than you do. In pre-indictment discussions, if I push back too hard on the government, the prosecutor could decide to add more charges to the indictment or refuse to engage in plea negotiations at all.
That power imbalance means that I spend a lot of time biting my tongue. After all, my job is to get the best possible outcome for my client—to win the war. My quick retort about the absurdity of a prosecutor’s interpretation of the facts will, at best, win a very tiny minuscule battle and may hurt my chances to win the war for my client.
There are, however, a few circumstances when we as defense counsel must resist being cooperative with DOJ and resist answering DOJ’s demands for information.
One: When DOJ asks whether you are in a joint defense agreement with another person or company
From what I can tell, prosecutors hate joint defense agreements. JDAs are agreements among defendants to share information among themselves as a strategy to improve the strength of everyone’s positions. Here’s my previous post with more information about JDAs.
If a prosecutor asks if you are in a JDA with another defendant, you need to tell her to stuff it. Well, you need to tell her to stuff it very politely. In the advice-column world, when someone asks an inappropriate question, the columnist always suggests responding, “why do you ask?” That would actually be a great response if a prosecutor asks this question.
It’s absolutely none of DOJ’s business whether you are in a JDA—whether it is formal or informal, written or oral. Don’t tell the prosecutor whether you are or are not. In fact, I think most defense lawyers would consider it a violation of the JDA to answer that question.
Tell the prosecutor that you will not answer that question. If you are feeling bold, you can remind the prosecutor that it’s an inappropriate question to ask in the first place. At least with respect to corporations, the Justice Manual strongly suggests that the existence of a JDA is not relevant: “Similarly, the mere participation by a corporation in a joint defense agreement does not render the corporation ineligible to receive cooperation credit, and prosecutors may not request that a corporation refrain from entering into such agreements.” (Section 9-28.730).
Two: When DOJ tells you that you have a conflict representing multiple clients.
I’ve written before about DOJ’s aggressive efforts to tell defense counsel who represent more than one client in an investigation that the lawyer has a conflict of interest and thus cannot ethically represent both clients.
If two clients have different interests in a case, then a lawyer cannot represent them in certain circumstances. However, it may be that the joint representation is still desirable from the two clients’ perspective and they may both have given informed consent.
DOJ arguably has an interest in making sure there are no conflicts because it does not want to obtain a conviction and then have the defendant turn around years later and claim that conviction should be reversed because his counsel was conflicted. But that is such a profoundly rare circumstance—particularly in white-collar matters where clients are generally sophisticated parties—that it’s often laughable for DOJ to suggest it.
That said, if DOJ raises this concern, you should take it seriously. Ask the prosecutor to explain in detail why the conflict exists and show you the documents suggesting there is truly a conflict. If the prosecutor will not give you additional information, then your response is that you’ve analyzed all possible conflicts based on your information and see none.
Most lawyers I know are exceptionally careful when they represent more than one client. It’s often easier in a situation where the company is indemnifying the clients to simply find one client a new lawyer. That is certainly one resolution. But understand that just because DOJ claims there is a conflict, you don’t have to agree to that assertion without the facts to support it.
Three: When DOJ asks who is paying your client’s fees.
In my experience, prosecutors rarely ask who is paying my client’s fees. But it has happened and it continues to happen, as shown by DOJ’s recent motion to obtain this information as to whether Sidney Powell is paying the fees for certain defendants in the January 6th cases.
Once again, this is none of DOJ’s business.
In the District of Columbia, the ethics rules allow someone else to pay a person’s fees as long as (1) the client gives informed consent, (2) the third party does not interfere with the representation, and (3) the lawyer keeps confidential information confidential. This is a fairly low bar.
As long as you have made clear to your client (and, preferably, documented in your engagement letter) that a third party is paying her fees and you have made sure that the third party will not interfere with the representation in any way, then there is no ethics problem here. In most circumstance, third-party payment of fees is completely innocuous: a company will pay the fees for employees caught up in an investigation or family members will pay fees for someone.
You can politely decline to answer. And maybe you respond as the advice columnist might suggest: “Why do you ask?”