Omaha attorney Steve Lefler resents the question, resents even having to address the issue.
Still, it has happened a handful of times in the three weeks since The World-Herald revealed that the U.S. government wired an Omaha attorney to try to take down Douglas County inmate Shannon Williams, the alleged ringleader of a massive marijuana conspiracy.
Lefler meets with new clients at the jail — and the inmates turn the tables on him.
“I've just got to make sure,” the inmates tell Lefler, “you're not wearing a wire, are you?”
“If I were in the jail right now, I probably would ask the same question,” said Lefler, an attorney for 33 years. “But frankly, it's insulting when I even have to take time out of an interview to reassure them they can trust their lawyer, that their attorney isn't going to wear a wire, isn't going to turn on them.
“That's what this case has done. It just raises the question, in my mind. Even if it was legal for the government to do it, should it have been done?”
The U.S. Attorney's Office for Nebraska and investigators have briefly defended their actions, pointing to Williams' criminal history and to precedents in which federal courts have said attorney-client privilege does not extend to plots to commit crimes. They also have asserted that the attorney, Terry Haddock, made it clear to Williams that he was not Williams' attorney and would do no legal work for him.
And Haddock has told others that he had to act because Williams, a man who was acquitted of murder and has an extensive criminal record, talked about eliminating witnesses. So Haddock wore a wire and brought a cell phone to record more than 30 jailhouse conversations between Williams and members of the marijuana ring.
Douglas County Public Defender Tom Riley, who has cross-examined jailhouse informants for more than 30 years, said he “about fell out of my chair” when he learned that an attorney had turned informant.
“It's something I'd never even contemplated,” he said. “That's how farfetched it seemed to me.
“If it doesn't violate the letter of the law when it comes to attorney-client privilege, it certainly violates the spirit.”
Indeed, the use of Haddock is the stuff of law school lessons, a “complex, esoteric question” of both the ethical and practical consequences of using an attorney as an informant, said Pottawattamie County Attorney Matt Wilber.
On the one hand, attorneys have a duty to report possible future crimes, such as a plot to kill someone.
On the other, they have a duty to guard their clients' comments about their past, even if that past includes having killed someone.
Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and the author of the book “Snitching: Criminal Informants and the Erosion of American Justice,” said she found it “shocking” to read of federal prosecutors' willingness to use Haddock — and of Haddock's willingness to be used.
One, most attorneys would scoff at the suggestion that they help nab someone, she said. Two, most prosecutors “fear tampering with one of the great pillars of the criminal justice system: the attorney-client privilege.”
“It is not just a question of legally can I do it, but ethically should I,” Natapoff said. “That is what is so disturbing about the pervasive reliance on snitches. Nothing is sacred. Everything is for sale. Anything can be traded. There are no ethical, moral, cultural, professional constraints. Even your lawyer can be used against you.”
Of course, that takes a willing lawyer.
Natapoff said it's impossible to quantify how many attorneys have gone undercover for the government, though it appears rare. Since the 1980s, fewer than a handful of cases have dotted the federal appellate courts. In 1987, a federal appeals court criticized the practice as “misconduct.”
“We do not condone the government's use of criminal defense attorneys as informants against their clients,” the court wrote. However, the court upheld the drug dealer's conviction in that case.
Creighton University law professor R. Collin Mangrum said many attorneys would be reluctant to be wired because of “the appearance of using the attorney-client relationship to manipulate the outcome ... to encourage the guy to commit a crime.”
However, Mangrum noted that attorneys cannot ignore a client's stated plans to commit crimes.
“The attorney takes oaths for justice as well,” Mangrum said. “It's really a question of whether anyone, attorney or not, should be involved in helping to catch a bad guy.”
Wilber, the Pottawattamie County prosecutor, said such cases “pose difficult questions” about the admissibility of evidence and the ability of defense attorneys to get candid answers from clients.
“It becomes more of a systemic question,” Wilber said. “Do cases like this make (defendants) less likely to want to talk to their lawyers, which, in turn, makes the defense less effective as advocates for their clients?
“I would be hesitant. But I'm not saying I wouldn't do it. If it's a case where someone is threatening harm against someone else, then you clearly have an obligation to come forward, whether you're a lawyer or not.”
Williams and his attorney, Michael Tasset, question Haddock's motives. An attorney for seven years, Haddock, 52, had suffered a series of financial, physical, personal and mental-health problems in the months leading up to his involvement in the case. His wife filed for divorce. He stopped showing up for court.
Authorities say Haddock became infatuated with a Zimbabwean woman who describes herself as a former escort. Marijuana conspiracy charges were dismissed against her — and Haddock eventually agreed to wear a wire in talking to Williams.
Federal prosecutors have not disclosed whether Haddock is being paid for his work as an informant.
Haddock, who says he is in hiding, has told former colleagues he realizes that he could lose his law license. Under bar rules, attorneys are not allowed to misrepresent themselves.
Williams has said that he hired Haddock because Haddock told him he had studied the disparities in sentences for dealing crack cocaine vs. powder cocaine.
“Haddock's credibility is going to be the central issue in this case,” Tasset said. “But it's my feeling that the government's use of him creates all sorts of collateral damage. It puts an unnecessary chill on the free exchange of information between lawyers and clients.”
Though he's critical of the practice, Lefler acknowledges that he may have benefited from some of the information gleaned from Haddock's undercover work. During those taped conversations, investigators say, Williams talked about paying $2,000 to a man to rough up Lefler, Williams' former attorney.
Lefler said he's happy he didn't get a “beatdown.”
“But as a professional I have to think about not only my own skin but what impact this has on my clients, on their rights, on the system,” he said. “The ability for people to speak with their attorney in confidence is without question the foundation, the rock, of our criminal justice system.”
Contact the writer:
444-1275, todd.cooper@owh.com
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