Did Massachusetts Prosecutors Cross an Ethical Line by Secretly Subpoening a Defense Attorney's Bank Records?

According to the June 24, 2013 edition of Massachusetts Lawyers Weekly, a Boston criminal defense lawyer is asserting the Massachusetts Attorney General’s Office violated the rules of professional conduct by secretly subpoenaing over 1,500 pages of his law office’s bank records in connection with a criminal investigation into possible witness intimidation.

The attorney represented a defendant accused of motor vehicle insurance fraud in 2008. During the March 2012 trial of the charges, several cooperating witnesses recanted, leading the superior court judge to grant defense motions for required findings of not guilty.

The trial judge was troubled, however, by the recantations by several witnesses at trial and recommended that the matter be investigated for obstruction of justice, perjury and fraud on the court.

The Massachusetts Attorney General’s Office launched a criminal investigation that resulted in indictments of the attorney’s client and his co-defendant for corruption of a witness, suborning perjury, and related charges.  As part of the criminal probe, the Attorney General’s Office also subpoenaed four years of the defense attorney’s bank records, without notice to him, along with records of other attorneys connected to the case.  According to Massachusetts Lawyers Weekly, a hearing was held June 26 concerning the attorney’s challenge to the subpoena.  The attorney claims that Massachusetts Rule of Professional Conduct 3.8(F) requires prosecutors to obtain permission from the court and to give counsel an opportunity to be heard before subpoenaing a lawyer or his records in connection with a grand jury investigation.  In addition, he alleges that the subpoena was far too broad, allowing the Commonwealth to obtain four years of his law office’s bank records, including privileged information about his other clients and cases.

The Attorney General’s Office has argued that the grand jury subpoenas were properly issued and, under United States Supreme Court precedent, do not invade the attorney-client privilege.   According to the defense lawyer, the AG’s Office also alleges that Rule 3.8 (F) does not apply because the attorney’s records, and not the attorney himself, were subpoenaed by the grand jury.
The superior court’s ruling on this issue should be very instructive as to the limits of prosecutorial discretion and a prosecutor’s ethical obligations when seeking the records of an attorney.

Authorized by Attorney Simon Brown. For more information on professional liability matters, contact Simon Brown at 603-410-1500 or see Preti Flaherty's Professional Liability Group website.