Thomas Liotti, who has of late been pushing the bounds of criminal defendant representation, and has, incidently, sued the Nassau County DA, is in the news for an inventive investigation. 

His client was accused of abusing a child.  The child and its parents were the subject of a neglect proceeding in Family Court, and Liotti used that proceeding to generate statements exonorating his criminal defendant.  Result?  Lots of outrage.

From the NYLJ

"A Nassau judge has declined to disqualify from a criminal case a defense attorney who took statements from prosecution witnesses without the permission or presence of their attorneys in a related Family Court matter. In November 2005, the prosecutor filed an information charging Mr. Quiroz, 54, of Freeport, with abusing a 16-year-old retarded girl. Mr. Liotti denied that the girl was retarded.

In February 2006, the Nassau County Department of Social Services brought a neglect motion in Family Court against the alleged victim’s mother. The county also commenced a proceeding against Mr. Quiroz. Mr. Liotti served as Mr. Quiroz’s attorney in both matters.

Family Court appointed Steven Herman, a solo practitioner in Rockville Center, as law guardian to represent the girl and Connie Gonzalez, of Legal Aid in Hempstead, to represent the mother.

On Oct. 16, 2006, Mr. Liotti wrote to the district attorney asking that the criminal charges against his client be dismissed. He submitted affidavits, dated Oct. 12, in which the girl recanted her accusation and the mother stated that the alleged incident could not have occurred.

Judge Kluewer said that the record "amply demonstrated" that Mr. Liotti did not get the consent of either Mr. Herman or Ms. Gonzalez before communicating with their clients.

Mr. Herman moved in Family Court to disqualify Mr. Liotti on the grounds he had violated DR 7-104 of the state’s Code of Professional Responsibility. That provision prohibits an attorney from communicating with an opposing party that the attorney knows to be represented by counsel, unless the attorney has secured the prior consent of the opposing party’s counsel.

Mr. Herman also sought to preclude the use of the statements.

Judge Hope S. Zimmerman, now an acting Supreme Court justice (See Profile), ruled that Mr. Liotti had violated the alleged victim’s due process rights and disqualified him from representing Mr. Quiroz in Family Court.

Mr. Liotti appealed to the Appellate Division, Second Department, which has stayed the Family Court order pending the resolution of the criminal matter.

Meanwhile, the district attorney’s office moved for virtually identical relief in District Court. It argued that Mr. Liotti should be disqualified in light of his attempted use of "improper communications" to seek a dismissal of the criminal matter. Further, the district attorney asserted that it would be contrary to the interest of justice to allow the "product of this improper conduct" to be used.

The prosecutor also suggested that Mr. Liotti might have to appear as a witness "in order to determine the genuineness and circumstances of the purported recantations."

In response, Mr. Liotti argued that neither the girl nor her mother were a "party" to the criminal case. He noted that the girl has turned 18 and was no longer entitled to representation by the law guardian.

Mr. Liotti also claimed that because his associates, and not him personally, appeared in Family Court, he was "not aware" that the girl and her mother had counsel.

Judge Kluewer said she was not persuaded by Mr. Liotti’s assertions that he did not know that counsel represented the girl and her mother.

"Given his experience, he certainly should have known of the representation, and neither he nor his associates should have communicated either with the alleged victim, or her mother without the consent of their respective attorneys," Judge Kluewer said.

But the judge agreed that neither the girl nor her mother was a party to the criminal action. And she said that the purposes of the two proceedings were different.

The aim of the criminal action was to determine if the defendant had committed a wrongful act and, if so, to assess blame and impose punishment, the judge said. In that context, a defense attorney is obliged to zealously represent his client and is authorized to conduct the "broadest possible range of pretrial investigation."

By contrast, the Family Court proceeding is essentially civil, Judge Kluewer said. "The real subject of a neglect petition is not the respondent against whom it is brought, but the child it concerns," she said.

The judge noted that the considerations underlying the Family Court ruling did not pertain to the matter before her. But she said that the prosecutor apparently was seeking to punish Mr. Liotti because of factors relevant to the Family Court proceeding.

"I am aware of no public policy or other consideration pertinent to this action that warrants interfering with Defendant’s fundamental, albeit not absolute, right to counsel of his own choosing," Judge Kluewer held.

She also declined to preclude statements Mr. Liotti obtained from the alleged victim and her mother.

"Apart from the fact that such a spectre implicates the constitutional right to confront the people’s witnesses with prior inconsistent statements in New York, exclusion of a statement is not an appropriate remedy for the misconduct about which the people complain," she said. "