Commentary: Attorneys have no right to consult with witnesses.

• Author: Ziemer, David

Byline: David Ziemer

Attorneys have no First Amendment right to consult at a police station with clients who are acting as cooperating witnesses with the police, the Seventh Circuit held on Feb. 19.

Pursuant to the U.S. Supreme Court decision in Moran v. Burbine, 475 U.S. 412 (1986), a suspect in police custody does not have a constitutional right to be notified that his attorney is at the stationhouse. The suspect can request counsel and stop the interrogation, but police need not notify him about the lawyer's whereabouts.

The City of Chicago applies to cooperating witnesses the same approach sustained in Moran for custodial interrogation -- witnesses are not notified of attorneys' presence and undergo interrogation without legal advice unless they request access to counsel.

First Defense Legal Aid, a group that provides legal services to the poor, brought suit against Chicago in Illinois federal court, challenging the practice.

According to district court findings, when a spontaneous request is made by a witness, the police attempt to discourage the contact, telling the witness either that he does not need a lawyer or that the fewer people know he is at the station, the better.

The court found that, only if the witness "insists" on counsel, nonetheless, is he permitted to communicate with an attorney. The district court held the practice unconstitutional and issued a permanent injunction, requiring the city to notify a witness as soon as an attorney arrives purporting to represent him. The injunction also compels the police to admit the attorney so that the notice can be given in his presence, and provides that he may confer in confidence with the witness.

The court did not base its holding on the witnesses' rights, but held that the city's practice violates attorneys' rights under the First Amendment to associate with clients.

The City appealed, and the Seventh Circuit stayed the injunction and expedited the appeal. Reviewing the case on the merits, it reversed in a decision by Judge Frank H. Easterbrook.

No Association Rights

First Defense conceded that there is no general right of access, but contended that it possesses special rights of association with its clients, because if the witness cannot come out, then the lawyer must be let in.

The court concluded, however, "It is hard to reconcile this contention with Moran, for suspects are not free to come out yet need not be notified of counsel's arrival. Witnesses present an easier situation, for they are entitled to leave the police station and meet their attorneys outside (or anywhere else)."

In addition, the court found that the district court's injunction extends beyond the attorney-client relation to attorneys who have not yet been engaged as counsel.

The district court had found that First Defense usually goes to a station at the request of a witness' family or friends, something the Seventh Circuit found insufficient to create an attorney-client relationship.

The court reasoned, "an attorney is an agent, and there can be no agency without the knowledge and consent of a principal. It takes two to associate; a one-sided desire to counsel a witness does not create a protected 'right of association.'"

The court acknowledged case law holding that, "when an attorney reasonably...