Introduction

Some appellate decisions are landmarks. Others fall short of landmark status but signify a clear change in direction or a new emphasis. Still othersBno doubt the vast majorityBsignify little else beside the application of well known legal principles to a particular set of facts.

Usually, it doesn=t take a whole lot of thought or research to figure out which category a new opinion belongs to: Brown v. BoardBlandmark; Daubert v. Merrill DowBchange in direction; etc. When the New Hampshire Supreme Court=s recent opinion in State v. Kidder^[1] came over the listserv, however, I was stumped. On the one hand the court=s holdingBthat lawyers can=t help their clients violate injunctionsBseemed so obvious to barely require explanation, let alone an entire narrative opinion. On the other hand, the implication of that holding is that counsel of record in a criminal case might commit a crime by consensually interviewing the complaining witness. That notion is so foreign to everything else that has been written about counsel=s Sixth Amendment obligations that elaborate, indeed rococo citation would be expected. In the absence of such citation, I had to wonder whether this was what the Court meant.

Apparently, I was one of the few left wondering. Within days it seemed that most judges and prosecutors in the State believed that this was exactly what the Court intended. Indeed, even though Kidder arose in the context of a civil restraining order, judges, prosecutors and defense lawyers have assumed (or at least accepted) that it applies with equal effect to bail orders. Thus, despite its undebatable and downright mundane holding, the Kidder case has resulted in a sea change in day to day practice.

Does Kidder apply to bail orders? Does it apply to attorney initiated contact, as opposed to contact which the client orchestrates? Does it prohibit service of process or summons? Does it apply to attorney contact for transactional purposes (i.e. conveying jointly held property, or estate planning or explaining the parties= ERISA or COBRA rights)?

I don=t know the answers to any of these questions and the truth of the matter is that nobody else does either. We will need to wait for the next case or for legislative clarification. However, unless you want the next case to have your name in the caption, the only intelligent thing to do is to assume that the answer to each of the foregoing questions is AYes.@

With these thoughts in mind, I will (a) turn first to the decision itself, (b) briefly discuss the law prior to Kidder, and (c) suggest how the law might develop in the future.

The Case

Statement of the Case: Kidder was an interlocutory transfer in a criminal case. The defendant, Steven Kidder, was accused of violating a domestic violence restraining order issued under R.S.A. 173-B. The order prohibited any direct or indirect contact with the plaintiff. The Complaint alleged that Kidder engaged in indirect contract by having his attorney contact the plaintiff. Kidder moved to dismiss claiming that there is a blanket, implied-in-law exception to no-contact orders for attorneys going about their work. The trial court did not rule on Kidder=s motion but rather certified the question to the Supreme Court.

Statement of the Facts: The facts, apparently, were contested. However, the State alleged that Kidder retained counsel to represent him in the domestic violence case and, at kidder=s direction, counsel contacted the plaintiff to arrange a three way meeting with Kidder. The purpose of this meeting was allegedly to discuss the domestic violence case. The criminal complaint against Kidder alleged that he Aestablish[ed] third party contact...with [the plaintiff]...by having [his attorney] contact regarding said protective order.@

Issue Presented: According to the Supreme Court, the issue presented was whether a person subject to a protective order which prohibits indirect contract violates that order when his attorney contacts the plaintiff on his behalf.

Holding: There is no attorney or >third party/legitimate purpose=

exception to a no-contact order issued under R.S.A. 173-B. This result is required by a close reading of the statute. Restrained defendants cannot use counsel as a Aconduit@ to make forbidden contact with plaintiffs. However, Aprosecutorial discretion@ should be used when an attorney makes Ainnocent@ contact with a third party.

Where We Came From

Since the early days of equity, injunctions against parties have also applied with equal effect to counsel and other agents. See e.g., Superior Court Rule 161(d) (AUnless the Court, for good cause shown, otherwise orders, an injunction or restraining order...is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise) (emphasis added); F.R.Civ.P. 65(d) (same); Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945) (A[D]efendants may not nullify a decree by carrying out prohibited acts through aiders and abettors[.]@).

Perhaps for this reason, in the fall of 2003 both our district and superior court rules were amended to include special provisions concerning (a) service of post-Complaint documents when the filer is restrained from contacting the party to be served and (b) contact with such parties for the purpose of litigation. See, Superior Court Rule 21 (effective 10/1/03 and quoted in pertinent part):

A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings, through the Court. At the request of the party filing the pleading, the Court shall forward a copy of the pleading to the party or counsel on the other side of the case. Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

See also, District Court Rule 1.3A (effective 10/1/03 and worded identically). The last sentence in these rules clearly implies that attorney contact with a pro se party who has obtained a no contact order against the client is not permissible.

Additionally, no witness has an obligation to speak with opposing counsel in the absence of compulsory process. Thus, counsel must respect (both as a matter of law and ethics) a witnesses= request to be left alone. A domestic violence petition which requests a blanket no contact order arguably expressesBor at least might express--a desire not to communicate with counsel.

The Kidder Court did not rely on, or even describe this pre-existing legal landscape. Nonetheless, its holdings were fully consistent with what had come before. Indeed, had the Court allowed contact under the facts alleged in KidderBe.g. contact requested by the client, to arrange a meeting with the client, for the purpose of discussing the restraining orderBthat would have been a surprising and, frankly, unsettling result.

Nonetheless a diligent Westlaw search has not revealed a single published or unpublished decision from any English speaking jurisdiction that even discusses the question of whether counsel in an unrelated case may contact a person who has obtained a no contact order against the client. This is surprising if only because (a) Westlaw=s database is chock full of cases and (b) far too many of those cases involve attorney misconduct large and small. It takes but a minute to find published decisions concerning attorneys who murder,^[2] lie,^[3] steal, drink too much and work too little. Yet a solid three hours of research reveals not a single decisionBother than KidderBin which an attorney (or client) has been prosecuted, sanctioned, fined, disciplined, or even criticized for having a consensual interview with a witness who obtained a no contact order against the client.

Thus, one must conclude that Kidder stands at the very end of chartered territory. If read narrowly, it is not a landmark or even a significant case. However, if read broadly and expanded, Kidder will break new legal ground for which all but the most generic of precedents are lacking.

Where Are We Heading

Bail Conditions: I used to practice in a jurisdiction in which my clients= bail conditions frequently included Ano contact with any person who might be a witness in this case.@ I never viewed this as a restriction on my ability to contact and interview witnesses. Indeed, I always thought that I had a Sixth Amendment obligation to interview witnesses. Cf: ABA Standards for Criminal Justice, Defense Function, ' 4‑4.1(a). Nonetheless, since Kidder came down, most practitioners have assumed (or accept) that it applies to bail conditions.

This is not obvious to me. Kidder was decided with reference to the specific statutory text and legislative history of R.S.A. 173-B. Bail, of course, serves a very different purpose and our bail statute, R.S.A. 597, has its own legislative history. To my knowledge, bail conditions have never been used to limit the role of counsel. Further, because bail conditions are generally proposed by the State and ordered by the Court, they usually do not reflect a witness= desire to avoid contact.

More importantly, criminal defendants have (a) Fourteenth Amendment right to present a defense, (b) a Sixth Amendment right to compulsory process and (c) a Sixth Amendment right to effective assistance of counsel. Governmental interference with defense access to witnesses may require the reversal of a conviction on any of the grounds. See e.g., Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353‑54, 34 L.Ed.2d 330 (1972) (judge's unnecessary harangue of defendant's sole witness drove witness from the stand); Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1980) (A[W]hen the free choice of a potential witness to talk to defense counsel is constrained by the prosecution without justification, this constitutes improper interference with a defendant's right of access to the witness. Justification on the part of the prosecution to interfere with that right can be shown only by the clearest and most compelling considerations@); United States v. Morrison, 535 F.2d 223, 228 (3^rd Cir.1976) (prosecutor's intimidating interview of witness before start of defense case and indirect warnings concerning potential criminal liability dissuaded witness from testifying); United States v. Vavages, 151 F.3d 1185, 1188-1189 (9^th Cir. 1998) (AUnnecessarily strong admonitions against perjury aimed at discouraging defense witnesses from testifying have been held to deprive a criminal defendant of his Sixth Amendment right to compulsory process for obtaining witnesses in his favor.@); United States v. Pierce, 62 F.3d 818, 832 (6^th Cir. 1995); Government of Virgin Islands v. Mills, 956 F.2d 443 (3^rd Cir. 1992). Cf: Dennis v. United States, 384 U.S. 855, 873, 86 S.Ct. 1840, 1851 (( 1966) (AIn our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.@).

Although none of these federal cases deal with the precise issue presented, it seems doubtful to me that a blanket restriction, in a bail order, on counsel=s access to witnesses could withstand constitutional scrutiny. The case of Reid v. Superior Court, 64 Cal. Rptr. 2d 714 (Cal. Ct. App. 1997) is instructive on this point. The defendant in Reid was accused of molesting a number of children. The prosecutors objected to providing the complainant=s names and addresses to defense counsel. In support of their objection, the prosecutors claimed that the children told them that they did not wish to speak with the defense. The trial court then prohibited defense counsel from contacting the children. The defense appealed and ultimately the California Court of Appeals vacated the order and held as follows (with a multitude of citations, brackets and internal quotation marks omitted):

The right of a criminal defendant to present a defense and witnesses on his or her behalf is a fundamental element of due process guaranteed under the Fourteenth Amendment to the United States Constitution, and a judge, as well as a prosecutor, can improperly interfere with an accused’s right to a fair trial.

A criminal defendant does not have a fundamental due process right to pretrial interviews or depositions. However, a defendant does have a right to the names and addresses of prosecution witnesses and a right to have an opportunity to interview those witnesses if they are willing to be interviewed. A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. As a general rule, a witness belongs neither to the government nor to the defense. Both sides have the right to interview witnesses before trial. Exceptions to this rule are justifiable only under the 'clearest and most compelling circumstances. Where there is no overriding interest in security, the government has no right to interfere with defense access to witnesses. Therefore, as a general rule, "[a] lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party." (Canon 39 of the ABA Canons of Professional Ethics; see also Canon 10 of the Code of Trial Conduct of the American College of Trial Lawyers[.] Generally, a defendant is entitled to have access to any prospective witness although such a right of access may not lead to an actual interview. It is better procedure for the trial court to permit the attorneys for the defense to hear directly from the witness ... whether he would be willing to talk to the defense attorneys, either alone or in the presence of his attorney. . . .

64 Cal.Rptr.2d 714,718 ‑719.

Thus, while I clearly disagree with most of the bar in this state, I don=t think that the Court meant for Kidder to apply to bail orders: (A) Kidder was not a Constitutional decision; (B) Kidder did not address, and did not involve, a criminal defendant=s due process rights; (C) Kidder was not decided under the bail statute and (D) Kidder was resolved solely under the domestic violence protective order statute.

Kidder And Criminal Cases Generally: Even when the underlying no contact order is issued under R.S.A. 173-B (or similar out-of-state statutes), the application of Kidder to a pending criminal case raises the same constitutional concerns outlined above.

Of course, as the Kidder opinion suggests, counsel may ask the issuing court to modify the no contact order. That may be sufficient to moot the constitutional concerns in most cases. However, there are several situations in which prior judicial approval is neither practical nor effective:

A. The prosecution may not be pending in the issuing court. Indeed the issuing court could be located in another state. This could result in an intolerable delay especially if the witness has crucial information with respect to bail, probable cause or the location of other witnesses.

B. There are occasions, albeit rare, in which even a few days= delay can gravely prejudice a defense case.

C. The issuing court could deny the motion. This raises the question of what standard should be applied in ruling on such motions.

D. The defendant may desire to proceed ex parte, or at least without notice to the State, especially if the witness is not the complainant.

The primary problem with a requirement of prior judicial approval is that it adds an extra procedural step to just about every domestic violence prosecution in which the complainant has obtained a restraining order. Since these cases are generally resolved in District Court without a great deal of attorney time, an extra filing and court appearance is significant. Further, since these cases are hopefully processed in a speedy fashion, the extra step will almost certainly cause delay. Finally, because judicial approval should typically be granted in this context (for the Constitutional reasons stated above), the extra step should be pro forma in most cases.

On Behalf Of: I believe--though many disagree--that the Kidder decision is ambiguous with respect to whether it applies to attorney initiated contact. The decision speaks of contact by an attorney on behalf of a client. Read in the light of standard agency principles, this implies that any contact by the attorney in connection with the purpose(s) for which he or she was retained is forbidden.

However, the Kidder opinion later distinguishes “innocent” attorney contact from situations in which the client uses the attorney as a “conduit.” (The facts alleged in Kidder were of the “conduit” variety.) This suggests that perhaps the Court only intended to prohibit contact made at the client=s specific request, as opposed to contact initiated by the attorney pursuant to his or her independent judgment.

Unfortunately, the Kidder opinion states that “innocent” contact should be protected through the exercise of “prosecutorial discretion,” rather than judicial line drawing. What does this mean? If the contact is “innocent” is it still against the law? If so, why shouldn’t the offending attorney answer to the PCC or the State?

Enforcement Issues If Kidder Is Read Narrowly: If Kidder is eventually read to apply only to “conduit” situations, e.g. only to those situations in which the restrained party has instructed counsel to make contact, how will that rule be enforced on a day to day basis? Sometimes, only the client and the lawyer will know whether the contact is for “conduit” purposes. Both would have Fifth Amendment privileges. More important, any criminal investigation would chill the attorney/client relationship and probably require counsel to withdraw from the pending case. On the one hand, prosecutors could proceed in terrorem. On the other hand, Kidder violations might be unnecessarily hard to prosecute.

Issues If Kidder Is Read Broadly: If read broadly, Kidder may result in a great many unnecessary evidentiary hearings in civil and marital cases. If opposing counsel cannot speak with his or her pro se adversary then cases cannot be resolved and issues cannot be narrowed without judicial intervention.

Conclusion

Proceed with caution and read the advance sheets.

^[1]State v. Kidder, N.H. , 843 A.2d 312 (2004)

^[3]In re Clinton, 534 U.S. 1016, 122 S.Ct. 584, 151 L.Ed.2d 454 (2001).