United States v. Guivas-Soto
Docket: Criminal No. 14-080 (FAB)
Court: District Court, D. Puerto Rico; December 6, 2015; Federal District Court
Assistant U.S. Attorney Marshal Morgan did not violate Model Rule of Professional Conduct 4.2, which prohibits communication with a represented person, when he read letters from defendant Jose Hector Guivas-Soto. In September 2015, AUSA Morgan received two letters from Guivas and informed Guivas’s counsel of their receipt but did not provide copies. Instead, the United States submitted the letters to the Court ex parte, prompting a defense claim that AUSA Morgan had violated Rule 4.2. Defense counsel argued that reading the letters was akin to allowing Guivas to speak directly with AUSA Morgan, constituting an ethical violation. The Court ordered the United States to provide copies of the letters to the defense and to explain why there was no violation of Rule 4.2. Following the submission of the letters to the defense, Guivas's new counsel, appointed after the withdrawal of the previous counsel, concluded that there was no violation of the rule. Model Rule 4.2 aims to protect represented individuals from potential overreach by opposing attorneys and applies regardless of whether the represented person initiates the communication. Local Rule 83E(1) mandates compliance with the Model Rules of Professional Conduct for attorneys practicing in the Court. The Georgia Court of Appeals ruled in Morse v. State that an assistant district attorney (AUSA) did not breach Georgia Rule of Professional Conduct 4.2 by receiving and reading a letter from a represented defendant, as he neither solicited nor responded to the letter, nor initiated contact with the defendant. Similarly, AUSA Morgan did not solicit letters from defendant Guivas, did not respond to them, and provided no indication of having read them, thereby not violating Model Rule 4.2. While reading a letter from a represented person could potentially disrupt the client-lawyer relationship, it does not constitute communication under the rule. Unlike scenarios where listening to a defendant may imply engagement, AUSA Morgan did not convey any interest or concern to Guivas, as he did not interact with him regarding the letters. The United States properly notified Guivas's counsel and the Court about the letters, submitting copies ex parte and providing them to counsel as ordered. Therefore, the Court concluded that AUSA Morgan's actions did not violate Model Rule 4.2.