The Prohibited Realm Of Providing Legal Advice
An attorney was admonished as a result of his dealings with the complaining witness in a domestic violence criminal case.
The Maine Grievance Commission ordered the sanction
This complaint was filed by Prosecutorial District Three District Attorney Andrew Robinson regarding the conduct of defense counsel Darrick Banda, a former criminal prosecutor in District Four (Augusta/Skowhegan).
DA Robinson complained concerning the manner in which Banda contacted and spoke with Savannah C, the victim in the then-pending domestic violence (DV) Assault charge against Banda’s client, Andrew S.
On December 18, 2015 Banda telephoned and spoke with Savannah shortly after she had just met with an Assistant District Attorney (ADA) in Robinson’s office to review that pending DV Assault case. Banda’s comments with Savannah included the different manners in which it might be resolved. Such a discussion was certainly proper and appropriate for Banda to engage in with Savannah, as the facts indicate she was willing to do so. In that telephone discussion with Savannah, Banda discussed and explained the results and ramifications of her not testifying for the State (the prosecutor) against Andrew, both under subpoena and without a subpoena. In that discussion, Banda provided Savannah with legal information concerning her appearance as a witness against his client, Andrew.
From that discussion, Savannah was also informed by Banda about the likely result with Andrews’ charges if she was not subpoenaed and did not appear at court, i.e. that the case would be dismissed because the State would not be able to proceed without her testimony.
In his initial response to Bar Counsel Davis’ investigative inquiry, Banda agreed that as part of his discussion with Savannah, he explained her Fifth Amendment rights under the facts of the case. Banda’s comments to Savannah included his clarification to her “that (because) she did not have a good faith basis to invoke her right to remain silent, she would have a legal obligation to appear and answer questions truthfully if she were in fact subpoenaed to testify.” In addition, Banda also agrees that he informed Savannah that from his analysis of the case he did not think she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.
Such comments constituted “legal advice” by Banda to an unrepresented person that had legal interests adverse to those of his client, Andrew. Although Banda may have intended to interview Savannah in preparation for defending the charge against Andrew, under the actual facts in this matter he crossed into the prohibited realm of providing “legal advice to an unrepresented person,” as prohibited by M. R. Prof. Conduct 4.3.
The parties stipulated to the findings
this was a minor violation; there was little or no injury caused to a client, the public, the legal system or the profession; and there is little likelihood of repetition by Banda. As a result, the Panel finds and agrees that an admonition serves those purposes.
(Mike Frisch)