Tom Liotti is the kind of criminal defense lawyer who tends to make waves.  Caveat: I have been friends with Tom for a long time.  Andrew Bluestone road one of these waves all the way to shore at his NY Legal Malpractice Blog, discussing Tom Liotti’s latest quandary in asking whether it is ever permissible for a lawyer to interview a represented person.

Liotti represented a criminal defense who also had a family court neglect proceeding pending.  In the course of his criminal defense, Liotti interviewed the “witnesses” who were parties, represented by assigned counsel, in the family court.  After submitting affidavits from these witnesses to the District Attorney in an effort to get the criminal case dismissed (the witnesses recanted), all hell broke loose.  The counsel assigned to represent the mother and child in family court, from whom Liotti neither sought nor obtained permission to speak with their clients, blew their stack.  And rightfully so.  But maybe not.  It’s all according to which side of the fence you’re on.

As lawyers, we view our clients as sacred.  Nobody gets to touch them but us.  We are the brick wall surrounding them, keeping all others outside unless we choose to let them in.  But that’s often more a matter of wishful thinking than reality. 

While this case is somewhat unusual, in that there are multiple proceedings in various courts pending at the same time, it’s really not all that odd.  In Liotti’s case, Tom owed his client zealous representation and his client had a constitutional right to mount a defense.  So far, no issue.  To accomplish these tasks, the least Liotti could do is interview the witnesses against his client, assuming they are willing to speak with him.  But, you say, the witnesses have lawyers.  Does that not impede the “willing to speak” with him prong, since they cannot be “willing” to do anything unless their lawyers allow it?

This is where the clash happens.  Tom Liotti decided that his duty to defend trumped the witnesses’ right to counsel.  He was treading on some very shaky turf here, and decided to put his client first.  That’s what good defense lawyers do, because that’s how good defense lawyers think.  You have to admit, it was a brave move.

So what happened?  After getting chewed out by Judge Susan Kluewer for doing what he knew he shouldn’t have done, she denied applications to remove Liotti from the case for being a bad boy and  refused to preclude admission of the statements.  Noting that the neglect proceeding was essentially civil, the Judge concluded that the right to confront witnesses in a criminal proceeding trumped the niceties of representation in a civil proceeding.

The aim of the criminal action was to determine if the defendant had committed a wrongful act and, if so, to assess blame and impose punishment, the judge said. In that context, a defense attorney is obliged to zealously represent his client and is authorized to conduct the “broadest possible range of pretrial investigation.”

Let that be a lesson.