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Search & Seizure – Applicability of Exclusionary Rule — Violation of Nonconstitutional Right – SCR (Attorney Ethical Rules)

State v. John R. Maloney, 2004 WI App 141, affirmed on other grounds2005 WI 74
For Maloney: Lew A. Wasserman


¶11. The trial court held that there had been no violation of SCR 20:4.2 and that even if there had been, suppression would not be the remedy. We agree with the trial court that suppression is not available for an ethics violation. We therefore need not decide whether Paulus violated SCR 20:4.2. …

¶12. “Suppression of evidence is ‘only required when evidence has been obtained in violation of a defendant’s constitutional rights, or if a statute specifically provides for the suppression remedy.'” State v. Keith, 2003 WI App 47, ¶8, 260 Wis. 2d 592, 659 N.W.2d 403. Indeed, the preamble to SCR ch. 20 of the Rules of Professional Conduct states in part:

Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. …Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules … are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis … for sanctioning a lawyer … does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty.

The rule provides neither a constitutional nor a statutory basis for Maloney to seek suppression of the tapes as a “procedural weapon.” Because suppression is not available for an ethical violation,3 counsel is not ineffective for failing to raise the argument. See Reed, 256 Wis. 2d 1019, ¶17.4

The supreme court affirmed without reaching the foregoing issue, 2005 WI 74, ¶24 (“we need not determine which line of cases Wisconsin will ultimately follow regarding the applicability of SCR 20:4.2 to the pre-charging criminal investigative setting.[12]  Here, we are called upon to decide the narrower question of whether Maloney’s trial counsel was ineffective for failing to make this argument.”). Thus, because the supreme court didn’t overrule or withdraw the langiage quoted above, it remains viable – hence, the succeeding discussion.

Maloney’s argument was that the prosecutor violated SCR 20:4.2 (no communication between lawyer and opposing party when s/he is represented, without permission) when he wired Maloney’s girlfriend to record their conversations. Maloney hadn’t yet been charged, so he might have lost anyway on the ground he wasn’t a party. Indeed, that would have been the short way around the track for the court, but it decides to go for the gold instead. In footnote 3, the court indicates that the result “is sometimes referred to as the Michigan rule,” after the apparently leading case, Michigan v. Green, 274 N.W.2d 448, 454 (Mich. 1979). The footnote also string-cites a number of other cases adopting the idea that violation of an ethical rule governing attorney conduct can’t in and of itself support suppression. That’s well and good, but recognition of this principle leads to a certain amount of doctrinal discordance, given the importation of ethical rules into the evidence code, in State v. Jeffrey J. Meeks, 2003 WI 104 (SCR 20:1.6 bars counsel from testifying as to client’s competency during prior representation). That is, it simply isn’t clear why SCRs impact evidentiary admissibility but not suppression. In fact, part of the quoted excerpt from Green explicitly points out that while the remedy for violation of an ethical rule is disciplinary action, “(t)he admissibility of evidence … on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions.” The “Michigan Rule” – which has now been expressly adopted by Wisconsin – is incompatible with Meeks. Indeed, in another context, our supreme court has said:

¶14. However, just because data is to be kept confidential, it does not necessarily follow that Wahl has a legal privilege not to produce it. The concepts of “confidential” and “legal privilege” are very different.¶15. “Confidential” data is that which is “meant to be kept secret.” Black’s Law Dictionary 294 (7th ed. 1999). Legal privilege is a broader concept. It includes having the legal right not to provide certain data when faced with a valid subpoena…

Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65. This, too, is incompatible with Meeks. The point is that Meeks rests on very shaky footing, but more: it creates unnecessary difficulties in raising competency issues (which counsel is ethically compelled to do, something the Meeks court paid insufficient attention to).

And, note the procedural posture of Maloney’s appeal, namely a § 974.06 case in which the court doesn’t even mention the serial litigation bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), despite a prior, unsuccessful direct appeal. This omission is undoubtedly based on the fact that the prior appeal was litigated by the trial attorney, and the current appeal attacks that attorney’s performance: clearly, counsel couldn’t have challenged his own performance on the direct appeal, so this must have been seen as a “sufficient reason” as a matter of law not to have raised the issue on direct appeal.

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