MyShingle : Solo and Small Law Firm Management and Marketing

A rather lengthy criminal prosecution in a Manhattan federal courtroom is nearing its end after having begun in June 2004. It has notoriety if only because the lead defendant is a well-known (at least in New York City) and very capable criminal defense attorney. Her name is Lynne Stewart, and even though she's not on trial for her life, most certainly her professional career hangs in the balance.

I decided to focus on Ms. Stewart (and her co-defendants, whom we'll get to momentarily) before a verdict is recorded because it doesn't seem that these observations are in any way dependent upon the outcome. Rather, the spectacle that has unfolded in this case resulted from the federal government indicting her because she was doing her job. Or was she plotting against others on behalf of a client who is a convicted terrorist and will never see the light of a free day?

Ms. Stewart defended Sheik Omar Abdel Rahman, the supposed mastermind behind plans to destroy some New York landmarks. He was convicted of criminal conspiracy several years ago in the same building in which the present trial is going forward. Ms. Stewart has remained his lawyer until mid-2002 for not only appellate purposes but also to serve as an advocate in connection with his prison conditions. Apparently he speaks no English, is blind, is diabetic and has been subject to indefinite solitary confinement.

During this time, too, the Bureau of Prisons issued rules that restrict communications by certain prisoners to the outside world. They're called SAMs: special administrative measures. In order for lawyers like Ms. Stewart to confer with prisoners like Abdel Rahman, she is required to acknowledge in writing that she (or those with whom she works) will not serve as a conduit in order to broadcast or pass prisoner messages to others. The reverse is also true; the lawyer and her staff are prohibited from passing information to the prisoner that he is otherwise restricted from obtaining.

Ms. Stewart signed off initially and intermittently thereafter as a condition of her ongoing visits and telephone conferences with her client. The same was true of a paralegal and interpreter, both of whom worked for her and who also stand trial on charges of aiding or abetting terrorism as a result of violating the SAMs. Predicates for the violations appear to be providing Abdel Rahman with either letters or news reports regarding events in the Middle East, particularly in Egypt. Also, Ms. Stewart is accused of speaking with a Reuters reporter, disclosing that her client withdrew support for a cease-fire between the Islamic Group and the Egyptian government following a tragic terrorist incident at Cairo's Luxor in 1997.

Indictments of lawyers, particularly those who practice criminal defense, is hardly novel. Supposedly, they are often targeted in the southern reaches of Florida for allegedly laundering the tainted money of their clients. Sometimes they get too close to their clients in financial scams that eventually draw the attention of postal inspectors, securities regulators or the IRS. And on other occasions, they are accused of stealing from a client's trust account.

But what is the appropriate response when a lawyer is left to choose between being an advocate for her client and meeting the conditions that arguably restrict a person's right to counsel or otherwise impinge upon the privilege of confidentiality in attorney-client communications? Even more vexing is the prospect of the federal government's awesome power unleashed upon you if opting to serve your client rather than the government.

No lawyer should have to suffer the ignominy of FBI agents serving a search warrant upon his or her law office, as did Ms. Stewart. Or being escorted from that law office in steel bracelets, as did Ms. Stewart. And perhaps the overwhelming majority of criminal-defense lawyers will never incur such indignities in their professional careers. But there is always the possibility of that one client walking through the door and in whose way the government will stand like a bully during legal representation.

Ms. Stewart has been flagged as having a long record of taking on unpopular causes, associating with incorrigible types whose civil rights have been trampled and representing notorious individuals. If there is a way to define a heroine or champion by example, then she fits the bill. Yet, isn't this client characterization applicable to most criminal defendants? Their misdeeds, if believed, precede them. Society pre-judges their guilt, as if sneering at one's constitutional right to the presumption of innocence. No one would dare share an elevator with that person, assuming he wasn't already in pre-trial detention. Anyone who engages in criminal defense is necessarily defending civil liberties.

And then there is the second side to this coin. Although conceivable, it's hard to fathom someone of Ms. Stewart's ilk plotting to undermine the security of this, or any other, nation. Lawyers are obliged to report future criminal activity or fraud upon the court upon learning of that prospect from a client. Was she party to some diabolical scheme, by simply engaging as a messenger? Violence is universally prohibited, no matter the venue. But what is the difference between the spoken word and conversation that could be interpreted to incite mayhem or destruction? Is such a thing even subject to definition?

Perhaps the Lynne Stewart trial can be distilled as follows. (If for no other reason than the trial record already exceeds 9,000 pages.) One can argue that she's a criminal defendant because the federal government squares certain communications as being incendiary. Maybe Ms. Stewart would even concede that, in a most technical way, she violated the SAMs but that her actions were not indictable, that her communications between the outside world and a convicted terrorist were simply innocuous.

The distance between counsel's seat and the chair occupied by his client is negligible. As this case illustrates, a defense lawyer has quickly gone from one to the other. A gap without proportion remains, leaving unresolved a lawyer's understanding of when the client's communication ceases to be privileged and becomes actionable to the detriment of his legal advocate.

(Mr. Sindler is a criminal-defense lawyer based in Pittsburgh.  An occasional guest on CourtTV, he is scheduled to appear on that network December 20, 2004 during its 9:00 - 11:00 a.m. program schedule.)