Colorado Defense Attorney Charged With Felony – Why?

By: Nicole Kardell

A recent indictment in a state court in La Plata County, Colorado, has ruffled feathers in the defense bar. The accused was one of our own, criminal defense attorney Brian Schowalter. The charge was based on Schowalter’s refusal to turn over evidence he ostensibly held for a client. The evidence, an original letter, was apparently relevant to a homicide investigation involving the attorney’s client (though it appears that this material was not protected by attorney-client privilege).

This is the kind of scenario that keeps defense lawyers awake at night: might you someday face criminal charges for aggressively protecting the interests of your client? So when Schowalter appeared in court to be formally advised of the felony charge against him, it was not too surprising that 10 criminal defense lawyers sat behind him in an apparent show of solidarity, and to signal to prosecutors that they will not buckle easily to pressure.

While few facts about the matter have been publicized, the central question for many is why would the prosecutor choose such a drastic approach?

The indictment charges Schowalter with unlawfully tampering with physical evidence in a homicide investigation. The prosecutor in the matter argues that he used every means available to obtain the evidence. (It would be nice to know exactly what procedural steps the prosecutor undertook before unleashing the proverbial nuclear bomb.) When the prosecutor subpoenaed the letter, Schowalter asserted his Fifth Amendment rights.

It is not clear from the facts currently available, but it is possible that Schowalter’s actions would support a disciplinary proceeding for potential ethics violations. Colorado Rules of Professional Conduct provide that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully . . . conceal a document or other material having potential evidentiary value.” So why didn’t the prosecutor report Schowalter’s alleged misconduct to the Colorado bar? That would be a more typical – and arguably more appropriate – response to potential issues of professional misconduct.

Did the prosecutor take such a heavy-handed approach because of Schowalter’s decision to assert his Fifth Amendment rights? It seems a bit unusual for a defense attorney to plead the Fifth in response to a demand for client documents. Schowalter’s response implies an admission that his previous action of withholding the letter could lead to more serious charges, an action that may have invited an already-irritated prosecutor to pursue criminal charges rather than a state bar action.

The lesson from this case may be: if you believe that client documents in your possession are legally protectable, fight vigorously by employing the procedural mechanisms available (e.g., a motion to quash). But don’t invite a bigger battle through obstinacy. Of course, if the defense bar continues to hold its line in the matter, there may be a lesson or two for the prosecutor, starting with a road map to a more appropriate legal action – based on ethics sanctions as opposed to criminal penalties.