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Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to “vigorously defend and try the case.” Tarlow was up to the task but warned Lopez that it was “his general policy not to represent clients in negotiations with the government concerning cooperation,” and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations “personally[,] morally and ethically offensive.” This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison in order to be with them, Lopez asked his co-defendant's lawyer to initiate discussions with the government. He told his own lawyer nothing about this overture, calculating that Tarlow would serve him well if negotiations broke down and the case ended up going to trial. Sensitive to the constitutional and ethical issues raised by a defendant's efforts to go behind his lawyer's back but relying on a memorandum from Attorney General Thornburgh authorizing pre-indictment contacts with represented defendants, the prosecutor had Lopez brought before a magistrate, who advised Lopez of the dangers of proceeding without the assistance of counsel. Undeterred, Lopez signed a written waiver avowing his belief that Tarlow did not represent his best interests in the matter. He then met with the prosecutor and revealed the names of several alleged drug traffickers.

Upon learning of Lopez's meetings with the prosecutor, Tarlow withdrew from the case. Not long thereafter, Lopez, now with new counsel and evidently dissatisfied with the progress of his plea negotiations, moved to dismiss the indictment, alleging that the government had violated his Sixth Amendment right to counsel and DR 7-104(A)(1) of the American Bar Association's Model Code of Professional Responsibility, which bars an attorney from communicating with a represented party without the knowledge and consent of opposing counsel. The district court found no Sixth Amendment violation,6 but it concluded that the “prosecutor's actions constituted an intentional violation of the long-standing ethical prohibition” expressed in DR 7-104 and that dismissal of the indictment was the appropriate sanction for the government's “flagrant and egregious misconduct.” Although the Ninth Circuit later vacated the district court's order, it found fault only with that court's choice of remedy and agreed with the court's condemnation of the prosecutor's decision to deal with Lopez behind the back, and without the knowledge, of his lawyer.


Business Organizations Law | Law


Originally published in 56 Ohio St. L. J. 69 (1995).