Law & Order, "Open Season" (Season 13, Ep. 7) (11/20/02): Unintentional assistance of client criminal conduct

Contributed by Mary Rynaski

Danielle Melnick (Tovah Feldshuh), a criminal defense attorney, represents Julian Preuss (Garret Dillahunt).  At Preuss' arraignment, the judge imposed special administrative measures, restricting Preuss' communication. Preuss was remanded without bail, and was to have no contact with anyone but his attorney.

In violation of the order, Melnick relayed a message from her client to a contact of his, John Merck. Subsequently, a Florida District Attorney was murdered. The facts of the case established that the message that Melnick transmitting, was information that was used to facilitate the murder of the Florida District Attorney.  The attorney herself ends up being prosecuted for conspiracy and manslaughter (although there is no suggestion she intended the murder or even anticipated it).  As Comment [9] to Rule 1.2 makes clear, what is prohibited is knowingly counseling or assisting a client to commit a crime or fraud, which did not happen here.

Her primary liability is criminal, not professional.  Arguably, her conduct in violating the order violated MR 8.4(d), conduct prejudicial to the administration of justice.

New York has adopted the Model Rules.