Secret, Recorded Chat Takes Center Stage in OC Sheriff Case

[WSJ_law_blog]

We haven’t done all that much on former Orange County, Calif., sheriff Michael Carona (click here, here), but a recent development in the saga struck us as interesting enough to highlight.

The quick backstory: In January, a federal jury acquitted Carona on mail fraud and conspiracy charges concerning allegations that he used his office to enrich himself. Carona was, however, convicted on witness tampering charges — specifically, that he urged a former assistant, Don Haidl, to give false grand jury testimony. Carona was sentenced to 66 months in prison in April, and ordered to start serving his sentence on or by July 24.

The main piece of evidence in the case was an audiotape that had been secretly recorded by Haidl in a meeting between the two men in August 2007. (In preparation for the meeting, federal investigators working alongside Haidl prepared bogus subpoena papers. Haidl brought them to the meeting, presumably to enhance the credibility behind the meeting’s ostensible purpose.)

The trial court judge, Andrew Guilford, ruled that the communication violated a California Rule of Professional Responsibility called the “no-contact rule,” which states that “[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” Judge Guilford, however, declined to order any remedy for the violation.

On appeal to the Ninth Circuit, Carona’s lawyer, Jones Day’s Brian Sun has argued that Guilford’s decision not to apply a remedy presents at least a “substantial question” on appeal — one which weighs in favor of keeping Carona out of jail pending his appeal and would presumably create the foundation of his substantive appeal. Click here for Sun’s motion.

On Monday, the government offered up its response, in which it claims that the meeting between Haidl and Carona fell into an exception to the no-contact rule. Click here for the government’s filing.

We’ll keep you posted on how this motion gets resolved; things could get interesting out in our native land, the O.C. (aka, “Behind the Orange Curtain,” as the haughty multitudes from LA and beyond sometimes say).