The Court has granted certiorari in United States v. Gonzalez-Lopez, 05-032. The case concerns a Missouri defendant who wanted to be represented at trial by a California lawyer. The Eight Circuit opinion is here.
The opinion reports that the California lawyer, Low, made a provisional appearance (pending a motion for admission pro hac vice) before a magistrate judge, but that judge revoked the provisional permission to appear on the ground that Low violated the rule that cross-examination be conducted by only one lawyer. The violation took the form of Low passing notes to Fahle, an attorney for the defendant, who was conducting the examination.
Later, when Low petitioned for admission, the petition was denied. The district court denied the petition because Low had "contacted a criminal defendant with pre-existing legal representation, interfered with the criminal defendant's representation, and attempted to circumvent the Court's ruling on a continuance of the trial setting."
On appeal, the Eighth Circuit found that the district court denied the petition based on the Missouri equivalent of MR 4.2, but that the district court misinterpreted the rule by applying it to a lawyer who did not represent any party in the matter in which he contacted a represented party. The Eighth Circuit also thought the district court did not give proper weight to the defendant's right to counsel.
The issue before the Supreme Court will be whether the district court's ruling justifies reversal as an effective denial of counsel, or whether the defendant will have to show prejudice as well. The cert petition states that "the right to counsel of choice lies at the periphery of the Sixth Amendment, not at its core."
The result will be interesting, but the original decision to deny the petition is worth considering as well. I think the Eighth Circuit was right to find fault with an interpretation of the no-contact rule that would prevent clients from shopping around for other lawyers, and right as well to emphasize that denial of Low's petition implicated the right to counsel. That a California lawyer with no client in a case met with Missouri defendants represented by Missouri lawyers is a remarkable basis for denying that lawyer the ability to appear in Missouri courts.
DM