SUPREME COURT, STATE OF NEW YORK COUNTY OF NEW YORK: PART 1

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In re MATTER OF GRAND JURY SUPOENA SERVED UPON VINOO VARGHESE

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Of Counsel:

MEMORANDUM OF LAW IN SUPPORT OF VINOO VARGHESE'S MOTION TO QUASH

SUBPOENA TO HIM DATED OCTOBER 16,2013

GOLDMAN and JOHNSON Attorneys for Movant

Vinoo Varghese 500 Fifth Avenue, Suite 1400 New York, NY 10110 (212) 997-7499

Lawrence S. Goldman (lsg@goldmanjohnson.com) Elizabeth M. Johnson (emj@goldmanjohnson.com)

SUPREME COURT, STATE OF NEW YORK COUNTY OF NEW YORK: PART 1

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In re MATTER OF GRAND JURY SUPOENA SERVED UPON VINOO VARGHESE

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MEMORANDUM OF LAW IN SUPPORT OF VINOO VARGHESE'S MOTION TO QUASH

SUBPOENA TO HIM DATED OCTOBER 16,2013

Introduction

Demonstrating a remarkable insensitivity to, if not outright disdain for, the

role and responsibilities of criminal defense counsel to provide constitutionally

effective representation pursuant to the United States and New York State

Constitutions, the District Attorney has issued a grand jury subpoena to defense

counsel representing a defendant in a pending criminal case, intending to

question him about his interview(s) with a witness in that case with the intent to

use information from the attorney to secure an indictment of the lawyer's client.

This subpoena followed a blunderbuss search warrant under which the District

Attorney seized appro)(imately four hundred (400) privileged email

communications between the attorney and his client. The subpoena clearly calls

for the attorney's privileged work product, interferes with his representation of the

accused in a pending case, and is an impermissible intrusion into the attorney's

constitutional obligation to provide effective representation and his client's

constitutional rights to due process and effective representation. It is further

tainted by the NSA-Iike seizure of the 400 privileged attorney-client

conversations. If the Court does not reject this extraordinary prosecutorial

intrusion, no criminal defense attorney, at least in New York County, will feel free

to interview witnesses or communicate by email with clients. The subpoena must

be quashed.

POINT I

A DEFENSE LAWYER NEED NOT DISCLOSE TO A GRAND JURY INFORMATION GAINED DURING

HER PREPARATION FOR A PENDING CASE

A. Case Law Uniformly Holds That An Attorney In a Pending Case May Not Be Required to Testify as to Work Product

The prosecution in this case has issued a subpoena to attorney Vinoo

Varghese seeking testimony relating to a witness in the case pending against his

client with a view to seeking an indictment against both the witness and his client.

Counsel have not found a single case in which a court has allowed a

prosecutor to require a defense attorney representing a defendant in a pending

case to disclose the existence or substance of her interview with a witness in that

case. 1 By seeking information relating to Mr. Varghese's investigation and trial

preparation, the District Attorney is attempting to invade the work-product

privilege and obtain information to which he is not entitled.

Counsel have not even been able to find a single case in which a New

York prosecutor even sought such an order or issued a subpoena for such

disclosure in such a situation. No doubt the absence of such cases is due to the

1 Counsel may be required to disclose such information at trial if the witness is called by the defense. People v. Damon, 24 N.Y.2d 256, 299 N.Y.S.2d 830 (1969).

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rarity of a prosecutor's taking such an aggressive, virtually unprecedented,

action.

The seminal case in this area is Matter of Terkeltoub, 256 F.Supp. 683

(S.D.N.Y. 1966), written by the venerated Judge Marvin Frankel. There, on facts

strikingly similar to those here, the court upheld a defense attorney's refusal to

provide testimony to a grand jury investigating a conspiracy to commit perjury

about the time, manner and purpose of an interview with a witness.2

Terkeltoub represented one Fiorillo in a pending case involving alleged

perjury by the defendant in denying he had certain telephone conversations with

one Vone. The prosecutor, claiming that he had reliable specific information that

Fiorillo and Terkeltoub in a meeting with Vone had attempted to bribe or

otherwise persuade Vone to testify falsely that he did not have such

conversations with Fiorillo, called Terkeltoub before a grand jury to ask him

questions about the alleged meeting. Terkeltoub refused to answer questions

based on his client's rights to due process under the Fifth Amendment and the

effective assistance of counsel under the Sixth Amendment. )Q. at 683-84.

The court, while recognizing the need of the grand jury to investigate and

the government's "laudable purpose" to protect the integrity of the judicial

process, held that Terkeltoub "was not only entitled but probably required to

withhold answers to the grand jury's questions." )Q. at 684. The court found that

the information sought "touch[ed] a vital center in the administration of criminal

2 Terkeltoub has been cited approvingly or uncritically by twenty-two (22) other courts, including the United States Supreme Court. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170 (1975).

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justice, the lawyer's work in investigating and preparing the defense of a criminal

charge." JQ. at 684.

The court found that the demand that Terkeltoub testify- "a demand that

a lawyer be forced to testify about his work in supposed defense of a client" was

"troublesome on its face." ld. at 685. Such a procedure, said the court, "must

have at least a slightly chilling impact upon counsel for defendants in criminal

cases." ld. at 685.

The court also found particularly troublesome the timing of the subpoena -

at "perhaps the most critical period of the proceedings ... from the time of

arraignment until the beginning of ... trial, when consultation, thorough-going

investigation and preparation [are] vitally important." ld. at 685 (citing Powell v.

Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 60 (1932)). "At the heart of the job of

'thorough-going investigation and preparation' is the interviewing of prospective

witnesses, hostile as well as friendly. And no lawyer, on any side of any case,

would consider it salutary for his client that the opposition knew who was being

interviewed and what was said." ld. at 685 (emphasis added).

Thus, the court, declaring the "ultimate interest to be protected is the

privacy and confidentiality of the lawyer's work in preparing the case," id. at 685,

concluded that the prosecutor could not by grand jury subpoena compel

Terkeltoub to answer questions about his interview with a witness. The court

answered in the negative the virtually identical question presented in this case­

"Where the prosecutor, presumably with reason, suspects that a witness is being

tampered with, may the defense lawyer preparing for trial be compelled to report

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the existence, time, place, and context of an interview with the witness?" !Q. at

686.

To be sure the court, "out of abundant caution" did not make its answer

absolute, recognizing that "still more rare circumstances" might conceivably

justify a subpoena of this kind. ld. at 686. No such circumstances are present

here. Indeed, the facts in Terkeltoub were considerably more supportive of the

prosecutor's demand than the facts in this case. In Terkeltoub, unlike here, there

was an apparently considerable basis to believe Terkeltoub himself was involved

in the alleged criminal behavior, that his client was present at the meeting, and

that the meeting was other than a proper part of the attorney's constitutionality­

mandated preparation. Here, there is no basis to believe Mr. Varghese was

involved in wrongdoing, that he met with the witness together with the defendant

(or others not part of the defense team), or that any interview with the witness

was other than an ordinary interview conducted as part of diligent preparation by

competent counsel. The prosecutor here, unlike the prosecutor in Terkeltoub,

has provided no basis to believe that the subpoena is anything beyond "a fishing

expedition."

In Matter of Grand Jurv Proceeding (Duffy), 473 F.2d 840 (81h Cir. 1973), a

federal Court of Appeals went beyond the Terkeltoub decision in reversing the

civil contempt conviction of an attorney- not as here the trial attorney in a

pending case- who refused to divulge information furnished to him by potential

witnesses during his investigation prior to any charges being filed. Duffy, an

attorney for a gas company under investigation, had interviewed witnesses,

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including employees of the company and others, in anticipation of potential

litigation. Called before the grand jury to testify, Duffy refused to disclose

communications with the non-employees he interviewed,3 was held in contempt

by the district court, and appealed. !Q. at 841. The issue, similar to that here, as

framed by the Eighth Circuit, was:

Whether the work product doctrine operates to excuse an attorney from testifying before a grand jury with respect to ... recollections of conversations in anticipation of litigation with persons [other than employees of his client corporation).

The government sought to distinguish Terkeltoub on the grounds that it was

based on Fifth and Sixth Amendment grounds that were not present in the case,

apparently since Duffy, unlike Terkeltoub, was not at the time actually

representing a criminal defendant in a pending case. The Eighth Circuit based

its decision on the work-product aspect of the Terkeltoub decision, quoting the

decision extensively and noting that the facts in Terkeltoub- involving a

conversation allegedly dealing with the commission of a crime -were far more

compelling for disclosure than the facts in the case before it, and that there was

no credible showing that Duffy had in his interviews engaged in the commission

of a crime. Similarly, here, there is no such showing regarding Mr. Varghese.

The Eighth Circuit held that communications between Duffy and the

prospective witnesses were protected by the work-product privilege and that

Duffy could not be compelled to testify about them. The court, after an

3 It had been previously determined that conversations with Duffy's corporate client's employees were protected by the attorney-client privilege. This case involved the attorney work-product privilege.

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exhaustive inquiry into the history and policy supporting the work-product

privilege, stated:

Although the above-noted policies supporting protection of an attorney's work product were stated with reference to civil litigation, they are even rnore strongly applicable in criminal proceedings. There is an "especially strong tendency toward the protection of materials as the 'work product' of an attorney in criminal cases. Thus, in relevant criminal cases (admittedly few), the courts have consistently held statements by witnesses ... to be 'work product' of an attorney."

.!Q. at 846 (citations omitted; emphasis added).

The Duffy court also held that disclosure of the substance of a witness'

statements would provide to the prosecution discovery not afforded by the

Jencks Act, id. at 848-49, the federal functional equivalent of Rosario

requirements. See,§&., People v. Lunney, 84 Misc.2d 1090, 1092-93, 378

N.Y.S.2d 559, 562 (Sup. Ct. N.Y. Co. 1975). Similarly, Mr. Varghese's testimony

here would provide the District Attorney (and the assistant district attorneys

prosecuting defendant Hovan) with discovery to which they are not entitled.

Matter of Rosenbaum, 401 F.Supp. 807 (S.D.N.Y. 1975) (Duffy, J.), is

further support for the petitioner's motion. Rosenbaum, a criminal defense

attorney representing a defendant, had a conversation during the trial with a

witness, Lucio, concerning testimony Lucio had already given. He then asked

the court to strike Lucio's testimony on the grounds it was at least partly

untruthful, and the court struck the testimony and the trial proceeded. After the

trial concluded, the government sought an order compelling Rosenbaum to testify

before a grand jury about that conversation. The court denied the government's

request, stating, "I believe that the work-product privilege, which in the criminal

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context, reflects both fifth and sixth amendment concerns, prevents the grand

jury from compelling Rosenbaum to testify, in effect against his former client,

concerning the conversations with Lucio, despite the government's good cause."

!Q. at 808. The Rosenbaum court also stated without qualification: "During the

course of a criminal trial the work product privilege prevents the government from

acquiring through the grand jury material to which it would not be entitled under

the provisions governing discovery in criminal cases," citing Terkeltoub. !Q. at

808 fn. 4.4

Here, as Terkeltoub, In re Grand Jury Proceedings (Duffvl, and

Rosenbaum, the District Attorney seeks the substance of conversations between

Mr. Varghese and a potential trial witness -- a demand that is "troublesome on its

face." Terkeltoub, supra, at 685. "It is clear that ... personal recollections,

notes, and memoranda pertaining to" conversations with prospective trial

witnesses "are within the rubric of the work product definition." In re Grand Jury

Proceedings, supra, at 848. Here, as in Rosenbaum, forcing Mr. Varghese to

testify would require Mr. Varghese "to testify, in effect, against his []client," a

prospect that violates the "work product-privilege, which in the criminal context

reflects both fifth and sixth amendment concerns." Rosenbaum at 808; see also ---

Terkeltoub at 685. As in Terkeltoub, Mr. Varghese is "not only entitled, but

probably required, to withhold" the requested testimony from the grand jury.

4 Of perhaps more of historic interest than direct relevance (although at least as relevant as lawyers' fees cases like Priest v. Hennessy. infra}, over 60 years ago, during the "red scare" era at about the time of the espionage trial of Julius and Ethel Rosenberg, Southern District of New York Judge Gregory Noonan denied a motion by the United States Attorney to hold in contempt attorney Victor Rabinowitz for having refused to testify before a grand jury about a meeting he had with four of his clients. The United States Attorney's actions have been described by

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Terkeltoub at 684. Mr. Varghese, on behalf of his client, is entitled to withhold

such testimony because he "has a right to prepare in secret, seeing and inviting

those he deems loyal or those with whom he is willing to risk consultation." !Q,

The subpoena must be quashed because the People are attempting to

circumvent the attorney work product privilege, which protects Mr. Hovan's Fifth

and Sixth Amendment rights, as well as his rights in Article I, Section 6 of the

New York State Constitution.5

B. New York Courts, Even in Cases Not Involving Work Product, Have Set Stringent Safeguards Concerning Subpoenas to Attorneys

There are no reported New York cases in which an attorney in a pending

case has been subpoenaed to testify about his inteNiew of a potential witness,

and accordingly, there is no New York case in which a court has ordered such

testimony. It is not unexpected that few, if any, prosecutors would have issued

such a subpoena given the broad extent of New York courts' respect for a

defendant's constitutional right to counsel of choice, since her testimony in a

grand jury will likely require disqualification of the attorney. See, ~. People v.

Griffin, 20 N.Y.3d 626, 964 N.Y.S.2d 505 (2013) (conviction reversed for denial of

counsel of choice when Legal Aid Society dismissed due to new assigned

attorney's inability to be ready on trial date); People v. Arroyave, 49 N.Y.2d 264,

historians as "a blatant abuse of the grand jury to intimidate a member of the bar." Ronald Radosh and Joyce Milton, The Rosenberg Files 311 (Yale Press 1997, 2d Ed.). 5 Neither Terkeltoub, Qjjffy or Rosenbaum considered the "relevance" or "necessity" of the testimony sought. Relevance or necessity should be considered only after the prosecutor demonstrates the threshold requirement that the information is not privileged. If relevance were the determinative criterion, Terkeltoub and Rosenbaum, both cases where there was a demonstrated likelihood that the attorney had direct knowledge of perjury, would have undoubtedly gone the other way.

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270, 425 N.Y.S.2d 282, 285 (1980) (right to counsel includes "opportunity to

select and retain counsel" of choice). New York courts have historically extended

protections to the right to counsel beyond those protections provided by federal

law. £.&.,People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207 (1980)

(represented defendant may not be questioned in the absence of counsel even if

he is not in custody); People v. Rogers, 48 N.Y.2d 167,472 N.Y.S.2d 18 (1979)

(if a defendant in custody has counsel in one matter he may not be questioned

regarding that or unrelated matters); People v. Arthur, 22 N.Y.2d 325, 292

N.Y.S.2d 663 (1968) (rule precluding police questioning after attorney has

entered proceeding based on state constitution).

This concern for the right to counsel and the attorney-client relationship

has led New York courts to impose stringent limitations upon any subpoena to

counsel in a pending criminal case, even when the information sought has been

determined to be non-privileged. Under New York law, in order to require

counsel in an ongoing representation to appear before a grand jury, the

prosecution must demonstrate, after there has been a threshold determination

that the testimony or physical evidence is not privileged, relevancy, good faith

and a lack of alternative sources for the evidence sought.6 In re Stewart, 144

Misc.2d 1012, 545 N.Y.S.2d 974 (Sup. Ct. N.Y. Co. 1989) (Snyder, J.), aff'd in

6 The sole case counsel have found in which a criminal defense attorney was required to produce work-product to a grand jury, Matter of Subpoena Duces Tecum upon Giovinazzo, 86 Misc.2d 751, 382 N.Y.S.2d 243 (Sup. Ct. Richmond Co. 1976), is both clearly distinguishable and somewhat peculiar. There, the former attorney of two targets retained a witness's sworn statement that the prosecutor believed was both inconsistent with the witness's grand jury testimony and "may exculpate the targets of the grand jury investigation or some of them." Thus, the subpoena called for production of formal, already-known physical evidence held by a former attorney that might provide exculpatory evidence. Here, the subpoena calls for testimony by a target's current attorney in the hope that it will be inculpatory.

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relevant part, 156 A.D.2d 294, 548 N.Y.S.2d 679 (1 51 Dep't 1989), .§QQ.

dismissed, 75 N.Y.2d 1005, 557 N.Y.S.2d 312 (1990); see also In re Stolar, 196

Misc.2d 175, 177, 763 N.Y.S.2d 896, 897 (Sup. Ct. N.Y. Co. 2003) (trial

subpoena to counsel seeking fee information quashed). These requirements

recognize the "inevitable 'chilling effect' that the very summoning before the

Grand Jury has" on the attorney-client relationship. In re Stewart, 156 A.D.2d at

294, 548 N.Y.S.2d at 680. And even if these conditions are met, courts strive to

minimize any intrusion into the attorney-client relationship.

In Stewart, the First Department stayed enforcement of a subpoena

seeking non-privileged fee information until after the conclusion of the underlying

representation.7 156 A.D.2d at 294, 548 N.Y.S.2d at 680 (staying testimony until

termination of representation in order to ameliorate "chilling effect" on attorney-

client relationship). And, recently, in a coincidentally named case, In re M.B., 39

Misc.2d 1208(A), 971 N.Y.S.2d 72, 2013 WL 1444644 (Sup. Ct. Bronx Co. 2013),

the court in addressing a subpoena for physical evidence, a videotape taken by a

third party but in counsel's possession, required that the tape be produced

because it was not in any way privileged. However, in order to minimize damage

to the attorney-client relationship, the court prohibited the attorney's personal

appearance before the grand jury and ordered that "the Grand Jury shall not be

7 Cases involving grand jury subpoenas seeking information about the source or amount of payment of an attorney's legal fees are of little if any relevance here since information concerning attorneys' fees is not privileged work-product or protected by the attorney-client privilege. Priest v. Hennessy. 51 NY.2d 62, 431 N.Y.S.2d 511 (1980). In the case described above, In re Stewart, supra, where the Appellate Division, First Department, honoring an accused's choice of counsel, saw fit to postpone enforcement of a subpoena of an attorney in a pending case until the case was concluded. In re Stewart, 144 Misc.2d 1012, 545 NY.S.2d 974 (Sup. Ct. N.Y. Co. 1989), the lower court decision that was modified. also a legal fees case, is of little relevance and

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informed that M.B. or any employee of the Bronx Defenders was in possession of

such videotape." 2013 WL 14444644 at *8.

We assert that a subpoena to an attorney representing a criminal

defendant in a pending case related to her work product in the case should never

be granted. And, even when a subpoena seeks non-privileged information, the

standard for enforcement should be stringent. Even the United States

Department of Justice Manual had provided that attorneys should not be

subpoenaed without a "showing that the information reasonably is needed for the

successful completion of an investigation." Title 9, U.S. Attorney's Manual

9.216(a) (emphasis added) (quoted in Stewart, 144 Misc.2d at 1025, 545

N.Y.S.2d at 983).

Here, there has been no demonstration that Mr. Varghese's testimony is

"needed" or "relevant." All the District Attorney claims is that Mr. Varghese "had

interactions at relevant times" with M.B. and that she "offered conflicting factual

narratives," arguing his hoped-for testimony would be "relevant." Essentially, he

can only speculate that it might be relevant.8 Thus, this is a classic "fishing

expedition." While the District Attorney may have a legitimate interest in what

Mr. Varghese would say, he has not demonstrated any "need" for, let alone the

relevance of, his testimony. Speculation that it will be helpful is insufficient. The

District Attorney must demonstrate that it will be probative. See In re Stolar, 196

certainly no precedential value here. It did not involve an attorney's preparation in representing a defendant in a pending case, and therefore did not deal with work-product. 8 We respectfully object to the court's consideration of ex parte statements of evidence by the District Attorney, see Terkeltoub, 256 F.Supp. at 686, although we acknowledge and appreciate the opportunity given the defense to present its ex parte explanation. The prosecutor's proffer, we suspect, was based largely on a statement by M.B., who the prosecutor clearly believes is a

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Misc.2d at 178, 763 N.Y.S.2d at 898 ("'tis not enough that the People are

curious"); In re Stewart, supra. The District Attorney should at the least be

required to demonstrate that Mr. Varghese's testimony is "needed" and that

without it he is unable to secure an indictment. Cf. CPL § 450.50(1) (to appeal

denial of motion to suppress, prosecutor must aver that without the suppressed

evidence, he would be unable to secure conviction).

Thus, while there is no New York case directly on point, New York law

clearly directs the same result as the governing federal cases. New York's

general concern with the protection of the attorney-client relationship and the

right to counsel as well as the specific limitations it has imposed on subpoenas to

attorneys in pending matters even in the absence of privilege issues require that

the subpoena to Mr. Varghese be quashed.

POINT II

THE SUBPOENA IMPERMISSIBLY INTERFERES WITH THE

ATTORNEY-CLIENT RELATIONSHIP, THE CLIENT'S RIGHT TO EFFECTIVE

COUNSEL AND THE LAWYER'S OBLIGATION TO PROVIDE SUCH

Aside from the uniform case law proscribing demands to criminal defense

attorneys to testify about interviews with witnesses (even after their involvement

or representation in the case), there are important public policy reasons to

prohibit such a practice.

perjurer. The prosecutor should not be allowed to speak out of both sides of his mouth- calling her a liar, yet relying on the truth of her statements that suit him.

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A requirement that the attorney divulge what she learned from witnesses,

as Judge Frankel understated, "must have at least a slightly chilling impact upon

counsel for defendants in criminal cases." Terkeltoub, 256 F.Supp. at 685. Such

a requirement stands the constitutional requirement of effective representation on

its head. It would deter attorneys from seeking out and questioning witnesses

out of fear that they might find information adverse to their clients which the

prosecution could use to its advantage. It would deter attorneys from seeking out

favorable witnesses prior to trial since they would fear that disclosure will allow

police and prosecutors to pressure them concerning their prospective testimony.

It will inhibit the effective and thorough investigation that is the hallmark of a

defendant's Sixth Amendment and Article I, Section 6 right to effective

representation. See,~. People v. Bennett, 29 N.Y.2d 462, 379 N.Y.S.2d 801

(1972); People v. Droz, 39 N.Y.2d 457, 384 N.Y.S.2d 457 (1976); United States

v. Caracappa, 614 F.3d 30 (2d Cir. 201 0).

Any subpoena to a defense attorney, particularly to an attorney

concerning his client in a pending case, will deter vigorous advocacy. It will allow

the District Attorney to punish attorneys who fight for their clients beyond the

bounds that the prosecutor believes are appropriate, and to deter attorneys, for

instance, from bringing motions based on prosecutorial misconduct, as

Mr. Varghese has, freeing prosecutors to violate their Brady obligations, among

other improprieties.

Responding to a subpoena costs an attorney time, money and

aggravation. A less concerned and courageous attorney than Mr. Varghese may

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decide that the easier course would be to provide the prosecutor the information

he desires, however great the detriment to her client. Mr. Varghese,

demonstrating his concern for his client, the criminal defense bar and the federal

and state Constitutions, as a member of the National Association of Criminal

Defense Lawyers (NACDL) and New York State Association of Criminal Defense

Lawyers (NYSACDL) sought and has received pro bono representation from

experienced counsel through the Associations' Lawyers Assistance Strike

Forces. An attorney not a member of such an organization could be required to

pay thousands or tens of thousands of dollars of his own money to challenge the

subpoena.

Further, the ability to subpoena a defense lawyer in a pending case

essentially gives the prosecutor the right to disqualify counsel. An attorney who

testifies to the detriment of his client, as the prosecutor presumably believes

Mr. Varghese will if forced to testify, will likely be disqualified. Even if

Mr. Varghese were to give benign testimony, there is still some possibility he

would be disqualified from continuing as Mr. Hovan's counsel. The prosecutor

should not be allowed to choose his adversary and eliminate a defendant's

counsel of choice. "[C]ourts must remain sensitive to the benefits which both the

defendant and the legal process derive from permitting the criminally accused to

obtain counsel of his own choosing .... " People v. Arroyave, 49 N.Y.2d at 271.

Such "benefits" can include a greater "atmosphere of trust and respect,"

Arroyave, 49 N.Y.2d at 271, between defendant and his counsel which flows

from allowing "the accused [to] be defended by the counsel he believes to be the

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best." United States v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557,

2559 (2006). See,~. Arroyave, 49 N.Y.2d at 273 ("constitutional guarantee to

be represented by counsel of one's choosing is a fundamental right"). People v.

Griffin, supra.

And, it is likely that the mere fact that his attorney testified in secret before

a grand jury would destroy the confidence a client has in the attorney. Requiring

an attorney to testify is damaging to the "sensitive and trusting relationship"

between client and attorney. Stolar, 196 Misc.2d at 177, 763 N.Y.S.2d at 898. It

certainly would deter open and forthright discussion between attorney and client.

If prosecutors are allowed to subpoena defense attorneys to testify

concerning their present (and even their former) clients, defendants would be far

less likely to volunteer information and be candid with their attorneys. They

certainly will be more reluctant to provide their attorneys with the names of

potential witnesses. A defense attorney would have a much more difficult, if not

impossible, opportunity to provide constitutionally effective representation,

whether crafting a trial defense or providing advice whether to plead guilty.

The criminal justice system is built, like a three-legged stool, upon three

components- the judiciary, the prosecution and the defense- and works best

when there is mutual respect among and between them. The nearly

unprecedented subpoena here, to a defense lawyer in a pending case

concerning his preparation in that case, cuts one of the legs of that figurative

stool, tipping the balance further in favor of the prosecutor. The subpoena

disrespects the defense bar and disrespects the constitutions of this nation and

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state. It is no surprise that there is virtually no New York case law concerning

such a subpoena. Few, if any, New York prosecutors have ever directed such a

subpoena.

POINT Ill

THE MASSIVE SEIZURE OF 400 PRIVILEGED A DORNEY-CLIENT COMMUNICATIONS

REQUIRES GRANTING THE MOTION TO QUASH

The massive invasion into the sanctity of the attorney-client relationship by

the prosecutor's seizure of four hundred (400) privileged communications itself

requires the court to quash the subpoena.

Here, the District Attorney, during the pendency of a case against the

defendant Hovan, sought and received from a compliant judge four search

warrants calling for all "read and/or stored e-mail messages" of that defendant.

Certainly, the prosecutor (and the judge) contemplated or at the very least should

have realized that among those messages undoubtedly were privileged attorney­

client communications. Knowledge that there was a pending case against a

represented defendant demands special precautions. See Rogers, 48 N.Y.2d

167, 472 N.Y.S.2d 18 (defendant who is represented may not be questioned

while in custody regarding not only the matter in which he is represented but

other unrelated matters). Yet the warrants contained no limitation, restriction or

precaution relating to these communications. The warrants thus allowed the

prosecutors to rummage through the confidential attorney-client privileged

conversations between Mr. Hovan and Mr. Varghese about strategy, witnesses,

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facts, and the like. Such an at the least reckless intrusion requires severe

sanction.

The specific clauses in the warrant relating to the pending grand jury

investigation covering perjury and tampering were limited to communications

between Mr. Hovan and M.B.s On the other hand, the specific clause which

covers conversations concerning the subject matter of the indicted case­

"tending to show that Richard Hovan had a relationship with students with whom

Richard Hovan has had contact with through a school"- includes not only

communications between Mr. Hovan and M.B., but between Mr. Hovan "and

others." The most likely "other" with whom Mr. Hovan would communicate

concerning the subject matter of his case, of course, is his counsel,

Mr. Varghese.

Thus, the warrant, both in general and special clauses, authorized -

generally and specifically -the seizure of privileged attorney-client

communications.

As a result, approximately four hundred (400) email communications

between Mr. Hovan and Mr. Varghese were seized.

Counsel for this motion to quash do not address the issue of whether all

items seized by this general warrant should be suppressed, or what should be its

effect on the pending indictment. We limit the relief we seek concerning this

NSA-Iike seizure of privileged communications to the motion to quash. The

absolutely improper invasion of confidentiality by seizure of 400 protected

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attorney-client communications requires that the District Attorney be precluded

from questioning Mr. Varghese, and that on this ground alone, the motion to

quash should be granted.

Because of this egregious seizure of privileged documents, conventional

analysis requiring determination of a correlation between the basis of a question

and improperly-seized items is inappropriate. It would also exacerbate the wrong

by no doubt requiring further disclosure to the prosecution (and court) of the

privileged conversations at a suppression hearing. Similarly, a deferral of the

issue until an indictment is returned will not address the wrong. Such actions will

not prevent the indelible harm to the attorney-client privilege by forcing the

attorney to respond to questions.

Additionally, whether the District Attorney belatedly, after its massive

seizure, set up on its own an in-house self-described "taint team" does not cure

the egregious intrusion. Self-imposed limitations do not cure a defective general

warrant. Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284 (2010). The seizure by

the unlimited warrant itself is a violation of the Fourth, Fifth and Sixth

Amendments of the federal Constitution and Article I, Section 12 of the New York

State Constitution and the attorney-client confidential communication privilege.

The Fourth Amendment and Section 12 prohibit "unreasonable searches and

seizures," both of which occurred here.10 The harm has been done already. The

9 Interestingly, paragraphs band c of the search warrants issued by the court are exactly verbatim. This may reflect a lack of careful review by the judge who issued the warrant, who very likely issued it exactly as presented by the District Attorney. 10 The warrant also failed to "particularly describ[e] the place to be searched" in violation of the Fourth Amendment and Article I, Section 12.

19

District Attorney never should have seized and possessed those

communications, period.

The District Attorney should not be let off the hook by a contention that the

prosecutor who intends to question Mr. Varghese was insulated from the fruits of

the vast impropriety. However, if the Court decides to allow the District Attorney

to attempt to demonstrate that there is no link between the questions to be asked

and the aggressive seizure, statements, even if sworn, that the prosecutor and

others in the prosecution team have no knowledge of the substance of the

privileged communications, should be insufficient. Such statements do not

preclude the possibility that those prosecutors indirectly gained evidence from

the communications from others. If the Court does entertain such an application,

the District Attorney should be required at a full evidentiary hearing, at which the

movant should be allowed to cross-examine and call witnesses, to demonstrate

affirmatively by at least a standard of clear and convincing evidence that his

proposed questions are not in any way directly or indirectly derived from the

seizure.

CONCLUSION

We do not believe that the District Attorney's subpoena of counsel or his

wholesale seizure of his confidential communications with his client were

designed to deter effective advocacy in trial preparation and investigation by the

defense bar or to limit client communication between attorneys and clients. We,

however, do believe that the District Attorney does not care whether it does. In

20

any case, should this Court deny Mr. Varghese's motion to quash, the result will

be the same as if that were the intent of the District Attorney. Attorneys will be

hesitant to interview prospective witnesses. Clients will be hesitant to confide in

their attorneys. Electronic conversations between attorneys and clients will

cease, or be drastically limited. Constitutionally-mandated effective

representation will end, or be redefined to lower standards.

The motion to quash the subpoena should be granted.

Dated:

Of Counsel:

New York, New York November 19, 2013

Yours, etc.,

GOLDMAN and JOHNSON Attorneys for Movant

Vinoo Varghese 500 Fifth Avenue, Suite 1400 New York, NY 10110 (212) 997-7499

Lawrence S. Goldman (lsg@goldmanjohnson.com) Elizabeth M. Johnson (emj@goldmanjohnson.com)

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SUPREME COURT, STATE OF NEW YORK COUNTY OF NEW YORK: PART 1

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In re MATTER OF GRAND JURY SUPOENA SERVED UPON VINOO VARGHESE

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AFFIDAVIT OF SERVICE'

STATE OF NEW YORK ) : ss.:

COUNTY OF NEW YORK )

ANN MARIE PRUNELLA, being duly sworn, deposes and says:

1. I am not a party to this action, am over 18, years of age, and reside in Kings County, New York.

2. On November 20, 2013, on behalf of movant Vinoo Varghese, I caused to be served by Federal Express priority overnight delivery upon the individual named and at the address indicated below a true and correct copy of the annexed Memorandum of Law in Support of Vinoo Varghese's Motion to Quash Subpoena to Him Dated October 16, 2013.

Honorable Cyrus R. Vance, Jr. District Attorney, New York County One Hogan Place New York, New York 10013

Attn: Evan Krutoy, Esq.

,_.,;,taot o;,rr;ct Atto'f ze ?~-----........ ANN MA~IE PRUNELLA

Sworn to before me this

201

hda~7~ Notary Public