Wednesday, August 17, 2005
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Court of Appeal Rules:
Privileged Information Disclosed by Lawyer May Be Admitted
By KENNETH OFGANG, Staff Writer/Appellate Courts
Evidence disclosed to police by a lawyer in violation of the attorney-client privilege is admissible against the client unless the government has actively procured or induced the breach, the Court of Appeal for this district has ruled.
Rejecting the contention that the use of privileged information to obtain a search warrant is in and of itself a constitutional violation, Div. Eight Monday affirmed the conviction of Donna Navarro, who has already completed a 16-month prison term for grand theft. The panel also denied a writ petition by her husband, Edward Navarro, who is awaiting trial on similar charges and had sought to suppress evidence obtained in April 2002 in a search of the homes and auto repair business owned by members of his family.
The Navarros’ attorney, Angelyn Gates, said she would seek Supreme Court review. The decision is “troubling,” Gates said yesterday, because it holds that “attorney-client privilege is not what most of us thought it was up until yesterday.”
Kin to Clients, Judge
The Navarros claim that the Sheriff’s Department obtained the warrant based on confidential information they gave to attorney Elizabeth Navarro Rafeedie, who has represented them in other matters, in early 2002. The attorney—who did not return a MetNews phone call—is the sister of Edward Navarro and the wife of Los Angeles attorney Fred Rafeedie, whose father is Senior U.S. District Judge Edward Rafeedie.
Donna Navarro’s motion to quash the search warrant and disclose the identity of the confidential informant was denied by Los Angeles Superior Court Judge Candace Beason after an in camera hearing. Beason ruled that there had been no wrongdoing on the part of the Sheriff’s Department and denied the motions.
Donna Navarro subsequently pled guilty to three counts of grand theft, reserving the right to appeal. Weeks after she entered her plea, her husband was arrested and charged with multiple offenses, although he now stands accused solely of one count of conspiracy.
Edward Navarro’s motions to suppress and to disclose the identity of the informant were denied by Judge Clifford L. Klein, who ruled after an in camera hearing that there was no constitutional violation because there had not been a “knowing procurement” of privileged information or other willful misconduct by the Sheriff’s Department.
Sixth Amendment
Justice Laurence Rubin, writing yesterday for the Court of Appeal, rejected the defense contention that the Sheriff’s Department violated the defendants’ Sixth Amendment right to counsel by making use of privileged information.
Assuming for purposes of the decision that the informant actually was Elizabeth Navarro Rafeedie and that the information actually was privileged, but expressing no opinion on the validity of either assumption, Rubin said that there could not be a Sixth Amendment violation because the right to counsel does not attach prior to the filing of formal charges.
Disclosure of privileged information during the investigative stage of proceedings could be a Fifth Amendment due process violation, however, the justice went on to say, citing U.S. v. Marshank (N.D. Cal. 1991) 777 F.Supp. 1507. There, the court held that the client’s Fifth Amendment rights were violated, Rubin explained, when “government agents actively collaborated with a lawyer to build a case against the lawyer’s client, the lawyer participated in the government’s investigation [and] the government knowingly assisted the lawyer in violating the attorney-client privilege, then hid the violation from the court.”
But the Navarros’ case, Rubin concluded, was more like U.S. v. White (7th Cir. 1992) 970 F.2d 328, in which the Court of Appeals found that there was no government misconduct and no Fifth Amendment violation. That case dealt with an attorney who, prior to being sentenced for bankruptcy fraud, agreed to assist prosecutors in building a case against his former clients with respect to an unrelated fraud.
The Seventh Circuit held that there was no breach of privilege because the documents that the lawyer turned over were not confidential. But even if the privilege had been breached, the court said, there could be no constitutional violation in the absence of proof that the government was “complicit” or “procured” the invasion of the privilege, such as by promising the lawyer leniency in exchange for his cooperation.
Rubin said the Navarros made no showing, based on the in camera proceedings as well as those which take place in open court, of government misconduct under the White standard.
The evidence, the justice explained, was that the informant contacted a sheriff’s deputy, who had never spoken to the informant before that, and provided information, which the deputy subsequently investigated and corroborated. “If that informant were Elizabeth, nothing in the record even remotely suggests government misconduct in procuring information from her,” Rubin wrote.
Rubin went on to say that the Evidence Code establishing the privilege does not, in and of itself, authorize the quashing of a warrant or the suppression of evidence as a remedy for a breach. A client whose confidence is betrayed, the justice said, has a remedy by way of a suit for damages or a complaint to the State Bar.
The Navarros have not sued Rafeedie or complained to the State Bar, Gates said, although she did not rule out either possibility.
The case is People v. Navarro, B173591.
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