D.C. appeals court: Man has right to speak with his lawyer

Friday, November 10, 2000

A District of Columbia trial judge violated a civil defendant’s First
Amendment rights when he prevented the man from speaking with his criminal
defense attorney, a D.C. appeals court has ruled.

The District of Columbia had brought civil child neglect proceedings
against the man, identified in court papers as T.B., to determine whether he
was fit to raise his two children, identified as Ti.B. and Ty.B.

T.B. faced neglect proceedings in part because he was a prime suspect
in the disappearance of his wife, Y.B.

T.B. had separate attorneys for the neglect charges and for possible
criminal charges.

T.B.’s original attorney for the neglect proceedings had recommended
that he consult with the District of Columbia Public Defender Service for
advice regarding his Fifth Amendment right against self-incrimination.

T.B. consulted with the public defender’s office and obtained public
defender Jonathan A. Rapping as his criminal counsel. Rapping learned from the
U.S. attorney’s office that T.B. was the target of grand jury proceedings
regarding the disappearance of his wife.

Rapping sought to accompany T.B. to the neglect proceedings, which was
to consist of questions about domestic violence and T.B.’s relationship with
his wife.

However, trial Judge Kaye K. Christian barred Rapping from reviewing
the neglect case files. T.B.’s attorney in the neglect proceedings then
withdrew from the case on the grounds that she would be unable to adequately
protect T.B.’s interests without the advice of a criminal attorney.

T.B. then obtained the services of Geoffrey Harris to serve as his
attorney in the neglect proceedings. On the second day of trial in the neglect
proceedings, Harris advised T.B. to invoke his Fifth Amendment privilege to
refuse to answer questions because he was the target of a criminal

Harris then petitioned Christian to allow Rapping to advise T.B. on
when to assert his Fifth Amendment privilege.

Christian denied Harris’ motion and ordered Harris “not to
tell” Rapping anything about T.B.’s testimony. The judge also ruled that
“Mr. Rapping is not permitted in the courtroom during the neglect

Christian reasoned that the goals of maintaining the integrity and
confidentiality of the neglect proceedings trumped T.B.’s interests in
consulting with his criminal defense attorney.

T.B. filed an immediate appeal to the District of Columbia Court of
Appeals, contending that the trial judge’s ruling violated his First Amendment
right to consult with his attorney and infringed on his Fifth Amendment rights.
When he filed his mid-trial appeal, the neglect proceedings were put on

On Nov. 3, a three-judge panel of the appeals court reversed in
In Re T.B.

Common law and the Constitution protect the right of a client to speak
with his attorney, the appeals court reasoned.

“To begin with, it is embedded in our common law that a trial
court may not impose arbitrary or unjustified restrictions on speech between
attorneys and their clients,” the appeals court wrote. “These
principles are not only ingrained in our common law, they are also rooted in
the Constitution.”

The appeals court noted that “it is settled that the First
Amendment protects the right of an individual or group to consult with an
attorney on any legal matter.”

“We conclude that the trial court abused its discretion in
excluding Mr. Rapping from the courtroom, and in prohibiting T.B. and Mr.
Harris from conferring with Mr. Rapping about the neglect proceeding.”

The appeals court ordered the trial judge to resume the neglect
proceedings in a manner consistent with its ruling.

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