Bergeson: Ninth Circuit protects continuity of counsel for the indigent accused

The Ninth Circuit handed down a decision recognizing the importance of continuity in attorney-client relationships and rejecting the government’s argument that such relationships are diminished if the client is indigent and the counsel is appointed. Oregon Assistant Federal Public Defender Nancy Bergeson represented Michael Casey on a federal ecstacy charge. When the client missed a court date, the prosecutor subpoenaed her to testify at the grand jury regarding the client’s knowledge of the trial date. Nancy refused, citing the inevitable severance of the attorney-client relationship that would ensue. Chief Judge Ancer L. Haggerty quashed the subpoena as "unreasonable and oppressive" under Rule 17(c)(2) because required testimony would force the lawyer off the case and other evidence was readily available to the grand jury. After moving for reconsideration, the government appealed.

In an opinion available here, Judge Kleinfeld, joined by Judges Ferguson and Trott, demonstrated an appreciation for the realities of criminal defense, stating "issuing a subpoena to a lawyer to testify against a client is an unusual step that always raises serious concerns, even absent any privilege." Among other factors to be considered are "whether compliance would likely destroy the attorney-client relationship, and whether the information sought from the lawyer is already available from other sources." Judge Kleinfeld emphasized the case-by-case inquiry required and that no "mechanical rule" applied. In this case, the government had enough evidence independent of counsel's testimony to obtain an indictment.

Two parts of the opinion focus on points critical to those who labor in the defense of the indigent accused. First, the government argued that, because a federal defender was involved, the motion to quash had less force: the client is not entitled to counsel of choice and substitute counsel could be appointed. Judge Kleinfeld bluntly rejected this argument as having "no force": "Though an indigent is not entitled to counsel of his choice, the government is not entitled to force an indigent’s assigned lawyer out of the case."

Second, the government argued that severance of the attorney-client relationship would not necessarily result from compliance with the subpoena. The court found a likelihood sufficed, and "the greater the likelihood, the greater the potential for oppressiveness." And here’s the key point: "A client’s confidence in his lawyer, and continuity of the attorney-client relationship, are critical to our system of justice." Not only is this our daily experience, Judge Kleinfeld also recognized the potential for abuse: "Issuing subpoenas to lawyers to compel them to testify against their clients invites all sorts of abuse."

The court made clear that circumstances may exist to justify subpoenaing a lawyer to testify against a client. But given the threat to the attorney-client relationship and the alternative forms of proof, "the district court’s exercise of its discretion to quash the subpoena was eminently reasonable."

Nancy’s lawyer, Oregon Federal Public Defender Steve Wax and CJA Panel Attorney Marc Blackman for Mr. Casey did a great job protecting the interests of the indigent accused and their attorneys. But they have one more mission: check out the case’s caption. Nancy is listed as a defendant in a criminal case, even though she was never charged with anything. As a firm believer in the presumption of innocence, she senses no stigma, but the record should accurately reflect that her only involvement was as the resolute attorney for her client and the successful litigant of a motion to quash a subpoena, finding herself – as Judge Kleinfeld said – "in the odd position of appellee in this case."

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon