U.S. v. Grass
239 F. Supp. 2d 535 (M.D. Pa. 2003)

  • Grass and Brown and some company officers were indicted for defrauding Rite Aid and their stockholders and creditors.
    • Grass and Brown were also charged with obstruction of justice for impeding the investigation.
  • AUSA Daniel attempted to interview Brown about the allegations, but Brown refused.
  • Daniel was able to interview Noonan, who was Rite Aid’s former president.
    • Noonan was asked to secretly record a conversation between himself and Brown.
      • Daniel told Noonan not to ask Brown about anything involving his interaction with his attorney.
    • Daniel gave Noonan a fake letter that implied that Daniel was after him as well.
  • Noonan met several times with Brown as well as Grass and recorded the conversations.
  • At trial, Grass and Brown filed a motion to suppress tapes of conversations they’d had with Noonan. They argued that AUSA Daniel had improperly obtained the conversations in violation of Rule 4.2, and Rule 8.4(a).
    • Rule 4.2 prohibits an attorney from communicating “about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer to do so.
    • Rule 8.4(a) prohibits an attorney from knowingly assisting another in violating the rules of professional conduct.
    • Grass and Brown argued that Daniel knew that they were represented by counsel and had refused to speak to Daniel. Therefore Daniel’s use of Noonan as a surrogate to conduct the interviews he couldn’t get directly was a breach of professional responsibility.
  • The Trial Judge denied the motion to suppress.
    • The Trial Judge required Grass and Brown to prove three elements in order to prevail in their motion:
      • That Daniel violated Rule 4.2
      • That Grass and Brown were represented by counsel.
      • That suppression is the appropriate remedy.
    • The Trial Judge agreed that Rule 8.4 would prevent Daniel from doing what he would be prevented from doing directly because of Rule 4.2.
    • The Trial Judge found that Daniel had not violated Rule 4.2 because the commentary included in Rule 4.2 specifically says that constitutionally permissible investigative activities of lawyers representing governmental agencies are permissible under Rule 4.2.
      • Grass and Brown did not contend that the recordings violated their 5th Amendment or 6th Amendment rights.
      • Daniel argued that he did not violate Rule 4.2 since no indictments had been issued so there was no case for Grass and Brown to be a party to. Alternately, Rule 4.2 allows for exceptions as authorized by law, and his conduct was authorized by law.
    • The Trial Judge found that even if Daniel had violated Rule 4.2, suppression of the tapes was not an appropriate remedy.
      • If Daniel has violated Rule 4.2, he could show that he did not do so in a willful, deliberate, or intentional manner.