SEARCH MEHOW MANY COPS DOES IT TAKE TO SEARCH A LAWYER'S OFFICE? NONE, AND THEY'LL HAVE TO CALLL A LAWYER FIRST
A police investigation aimed at a family of Middle Eastern immigrants that lords over Phoenix's sex-club scene has had an unexpected consequence.
A group of prominent attorneys, irate that the cops executed search warrants at the offices of lawyers involved in the case, want the Arizona Supreme Court to approve a new rule concerning such searches. Under the proposal, a Superior Court judge would allow only an attorney--not the police--to serve a warrant on a fellow lawyer, "if possible, during regular business hours."
The attorney, to be called a "special master," would tell his or her fellow barrister exactly what the police want for an investigation. The "master" would then turn the documents over to the police.
The point of the proposal is to keep police out of lawyers' offices.
"To make attorneys the target of such searches is intended to intimidate them from representing anyone who might have a shady past," says Phoenix attorney Paul Eckstein, explaining the thinking behind the proposal. He's one of four area attorneys behind the controversial rule proposal. "It's easy for cops to allege that an attorney has been part of a crime, even when that attorney simply is representing an individual."
Attorneys Eckstein, John Frank, Roxana Bacon and Robert Schmitt put the proposal together in the wake of the late-May raids of offices of three attorneys suspected of criminal wrongdoing in the case of the sex-club empire of Paradise Valley resident Omar Aldabbagh and his family.
Joe Romley--cousin of Maricopa County Attorney Rick Romley--was one of the four lawyers whose offices were searched. However, prosecutors say they considered Joe Romley a suspect in the case, and Department of Public Safety agents searched his office in that capacity, not necessarily as an attorney for the Aldabbaghs.
According to several people close to the case, Omar Aldabbagh's defense attorney, Mike Kimerer, was present during the search. Joe Romley hasn't been charged, though a state grand jury continues to investigate the well-publicized racketeering case.
The recent recommendation of Eckstein and his colleagues certainly doesn't sit well with local prosecutors.
"To carve out an exception and to put lawyers above the law doesn't send the right signal to the public," says county prosecutor Myrna Parker. "People already harbor feelings of suspicion about how lawyers work. It would be interesting to see how the public feels about lawyers policing themselves."
A draft copy of the proposal obtained by New Times claims that police searches of law offices can violate attorney-client privilege.
"Such searches are becoming relatively common," the draft document says, "and are likely to increase in the future."
John Frank says he "probably pushed it a little" when he wrote that sentence, but adds, "It is getting more common in a national sense, especially with all the RTC [Resolution Trust Corporation] activities."
The draft proposal cites a 1979 case to bolster its position that, "in the average case," police may obtain items from attorneys' offices only through a subpoena. In that case, police served a search warrant on the office of an attorney who had possession of a saloon's business records. The Minnesota Supreme Court ruled that searches of an attorney's office are illegal when the attorney isn't suspected of criminal wrongdoing and there is no threat that the documents sought will be destroyed.
If the Arizona proposal passes muster with the state bar's board of governors, it will be sent to the Arizona Supreme Court for consideration. If the high court approves it, the new rule would have the same effect as a law that goes through the Arizona State Legislature--but without the public input.
Returning a telephone call for State Bar of Arizona executive director Bruce Hamilton, a spokesperson says the proposal hasn't yet gone before the board of governors "and Mr. Hamilton asked me to say he won't have anything to say about it at this time."
But assistant attorney general Fred Newton--who is a member of the state bar committee that will discuss the proposal at a meeting this week--expresses concern that it's being pushed so quickly.
"This is a reaction to the Aldabbagh situation, though Joe Romley's offices weren't ransacked or anything like that," Newton says. "Mr. Romley was the suspect in a crime, yet strong safeguards were taken by a judge and the police. To tell you the truth, it bothers me that the people behind this proposal want to move it through so quickly."
Paul Eckstein, however, says, "The stakes are high in Arizona. In other states, such searches are a fairly common prosecutors' tool of first use. We are trying to keep it from becoming commonplace here.
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