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.
