Monday, January 3, 2005
Here's a scary thought: Defense counsel are called before prosecutors and perhaps even threatened with prosecution if they do not answer questions about their clients who are involved in a criminal investigation. A story in the Wall Street Journal (Jan. 3) discusses the use of that tactic by Russian prosecutors, particularly in connection with the ongoing investigation and prosecution of OAO Yukos, the large oil company that is being slowly dismantled for alleged tax evasion. According to the article:
In recent months, the arrests and interrogations of Yukos lawyers have fueled fears that those who defend politically unpopular clients could themselves become targets. Two senior Yukos legal officers fled Russia this fall to escape criminal prosecution, while a lower-ranking colleague who stayed, Svetlana Bakhmina, was arrested last month. Another Yukos legal consultant, Elena Agranovskaya, was detained a day later. Prosecutors also have launched sweeping searches and interrogations of other Yukos lawyers and middle managers.
More worrying still is the tendency of prosecutors to call in lawyers for questioning on cases they are working on -- a move that is forbidden under Russian law. "It's absolutely unacceptable to question lawyers as witnesses in their clients' cases," says Genri Reznik, head of the Moscow Chamber of Lawyers. "It's a clear violation of an attorney's rights." While attorneys can't be coerced into providing information, the prospect of arrest is so intimidating that they often comply with the summons for questioning.
Prosecutors in this country will on occasion subpoena a defense lawyer to appear before a grand jury to learn about the payment of fees, client identity, and even communications if they government can establish the crime-fraud exception to the attorney-client privilege. Subpoenas to attorneys usually are the subject of extensive litigation, and it is a time-consuming task for the government in most cases. This is nothing compared to the approach of the Russian prosecutors, however. (ph)