“Freedom is not free.” The phrase is ubiquitous – - seen on bumper stickers, heard on talk radio, trumpeted by politicians and military leaders. It is also a truism, and for any who think otherwise, there is an (American) Revolutionary War, two World Wars, and a Cold War to overrule them.

While not “free,” freedom is constitutionally guaranteed, since it lies at the root of many of the provisions of our “Bill of Rights” — the first ten Amendments to the United States Constitution. One of these Amendments, in particular, the Sixth Amendment, guarantees (among other things) that persons accused of criminal wrongdoing have the right to be represented by an attorney. This “right to counsel,” as embodied in the Sixth Amendment, insures the freedom to be free from being unfairly overwhelmed by the awesome power of the government.

For that reason, the Sixth Amendment’s right to counsel may be unsurpassed, in terms of its importance to the liberty of the individual, vis-a-vis the power of the state. Therefore, anyone who cares strongly about the need to preserve individual liberty will be justly alarmed by recent efforts of the federal government to scale back the protections of that amendment.

Prosecutorial Pressure to Prevent Employee Representation: Traditionally, companies that become the subject of fraud investigations, (including most professional corporations: think medicaid “fraud and abuse”), have provided legal counsel to employees whom the government wishes to question or interrogate. Such a policy makes good sense, since wrongdoing by an employee can potentially be imputed to the employer, and since the employer usually has available to it superior financial resources with which to hire counsel. The United States Department of Justice (DOJ), however, has recently undertaken to essentially coerce employers to end the practice of affording legal representation to employees, leaving employees who lack the means to hire their own counsel without any counsel at all.

This coercion has come in the form of the DOJ offering to spare the corporate entity from being criminally indicted if it, (or, in the case of a professional corporation, he or she), “cooperates” with the investigation by refusing to provide employees with either legal counsel, or with the funds to obtain legal counsel. This DOJ policy, moreover, is a formal one, set down in 2003 in the so-called “Thompson Memo,” which provides that federal prosecutors, in deciding whether to bring charges against a corporation, may take into account (with disfavor) the corporation’s advancing of attorney fees to employees whom the government considers “culpable.”

To the extent that this policy interferes with an individual’s sixth amendment right to counsel, it represents a dangerous attack on a bedrock constitutional principle. Both federal and state courts, including the United States Supreme Court, have repeatedly held that the state’s interest in seeing that justice is done is paramount, “trumping” its interest in obtaining convictions. Frequently, those courts have also made the point that the right of an accused person to obtain high quality legal counsel protects the government’s interest in securing convictions that are both procedurally and substantively fair, which is the hallmark of a free society. The DOJ policy, however, rather than protecting that interest, serves to undercut it.

Underscoring the basic lack of fairness involved in the policy is the fact that it is apparently premised upon a number of cynical notions. First, any corporation that is faced with the prospect of a federal indictment, (and perhaps especially a professional corporation), is almost always looking at a virtual death sentence. In most cases of corporate fraud, the financial penalties, in the form of fines and restitution payments, are crippling, leaving the corporation with no real choice but to participate, (or “cooperate”), in the government’s effort to deprive corporate employees of effective legal representation.

Second, by predetermining, on its own, which employees are “culpable,” and then threatening to indict a corporation that provides those employees with legal assistance, the DOJ policy seems designed to deprive legal services to the very people who may be most in need of them.

Third, in those cases where a corporation’s initial response to a governmental investigation might be to have corporate legal counsel interview employees thought to have knowledge of the alleged wrongdoing, governmental coercion to “give up” those employees, (i.e., as a form of “cooperation”), will amount to a coerced waiver by the employees of their Fifth Amendment right to be free from self-incrimination, as well as the Sixth Amendment right to counsel.

Fourth, by “persuading” the corporate entity to essentially “cast adrift” its employees in a counsel-less sea, the government takes unfair advantage of both. While this may greatly increase the government’s chances of obtaining convictions, it will also increase the number of wrongful convictions – a result incompatible with constitutional freedom.

Fortunately, however, at least one successful challenge to the policy set forth in the “Thompson Memo” has recently been reported. In late June, 2006, in the case of U.S. v. Stein, et al., a federal district judge sitting in New York State ruled that the DOJ policy is unconstitutional. Citing many of the reasons detailed above, the court ruled that, to the extent that the policy underlying the Thompson Memo authorizes prosecutors to threaten indictment of a corporation, depending upon whether the corporation has provided legal assistance or fees to its employees concerning possible criminal charges connected with their employment-related activities, both the policy and the Memo are unconstitutional. Each violates, the court said, both the Fifth Amendment right to due process, and the Sixth Amendment right to counsel.

Therefore, although the DOJ can be expected elsewhere to continue its policy of pressuring corporations to withhold legal representation from employees that the DOJ considers “culpable,” (the Stein decision is binding only in the Federal Second Circuit’s New York Southern Division, and it will almost certainly be appealed), there is hope that, ultimately, the questionable constitutionality of the practice will be recognized throughout the land.

Indeed, the extent to which Sixth Amendment “freedom,” (i.e., from being forced to face the government without counsel), shall remain “free,” (i.e., guaranteed), may well depend on the eventual fate of the Thompson Memo, as decided by the federal courts.

Glenn Michael Simmington, Esq., of Cline, Cline & Griffin, specializing in criminal defense, medical malpractice defense, and constitutional litigation.

This entry was posted on Wednesday, October 29th, 2008 at 1:01 pm and is filed under Legal Issues. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.