principals embodied by it would be furthered by suppression of the Noonan tapes.
"Courts and commentators have noted that Rule 4.2 is designed `to prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralizes the contact.'" University Patents, Inc. v. Kligman, 737 F. Supp. 325, 327 (E.D. Pa. 1990) (quoting Frey v. Department of Health and Human Servs., 106 F.R.D. 32, 34 (E.D.N.Y. 1985)). "The prohibition against communication with a represented party thus recognizes the inherent danger in a layperson conducting negotiations with an opposing lawyer and the likelihood that such negotiations would destroy the confidence essential to the attorney-client privilege and hamper the subsequent performance of the represented party's counsel." Lopez, 765 F. Supp. at 1449; accord United States v. Batchelor, 484 F. Supp. 812, 813 (E.D. Pa. 1980).
Thus, the primary purpose of the no-contact rule is to prevent an attorney from intentionally tricking an opposing party into waiving the protections of the attorney-client relationship; presumably the confidentiality of attorney-client communications and trial strategies. As a result, if the court were to order the suppression of the Noonan tapes, it could do so to remedy Defendants' right to confidentially communicate with their attorneys. The court finds that suppression would not vindicate the confidentiality of Defendants' relationship because Defendants placed the confidentiality in jeopardy by communicating with an independent party.
"The attorney-client privilege protects confidential communications made to an attorney in his or her professional capacity in those instances in which a strict relationship between the attorney and the client exists." In re Grand Jury (00-2H), 211 F. Supp.2d 555, 557-58 (M.D. Pa. 2001) (citing Haines v. Liggett Group, Inc., 975 F.2d 81, 94 (3d Cir. 1992)). The confidentiality of this relationship is protected "to ensure that a client remains free from apprehension that consultations with a legal adviser will be disclosed." Rhone-Poulec Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994). Such concerns are not implicated where, as in the instant matter, a client voluntarily consults a third party regarding matters essential to the client's case. See United States v. Moscony, 927 F.2d 742, 752 (3d Cir. 1991) ("It is generally true that if the client intended the matter to be made public, the requisite confidentiality is lacking." (internal quotations omitted)); see also Edna Selan Epstein, American Bar Association Section of Litigation, The Attorney-Client Privilege and the Work-Product Doctrine 171 (4th ed. 2001) ("To be privileged, a communication must be made with the intention of being kept confidential.").
The fact that Defendants erroneously believed that they were consulting with a friendly ear, rather than a Government agent, does not change this analysis. Put another way, although Defendants could not have reasonably known that the Government was monitoring their conversations with Noonan, they likewise could not have reasonably believed that they were communicating with their attorneys at the time the three men decided to meet to discuss matters related to the various investigations arising out of their tenures as Rite Aid officers. Defendants waived the confidential nature of this information by divulging it to Noonan because he was not their attorney. Defendants cannot now cry out that the sacrosanct nature of their confidential relationship with their attorneys has been usurped by improper Government stratagem when they themselves intentionally caused confidential information to be divulged to a third party whom they knew was not connected to the defense of any case that might be brought against them.*fn7 Because the undisputed facts indicate that Defendants demonstrated a willingness to share information with a person who was not one of their attorneys, the court cannot say that the Government's conduct caused a violation of Defendants' right to confidentially communicate with their attorneys. Thus, the purpose behind the nocontact rule — i.e. the protection of the confidential nature of the attorney-client relationship — would not be vindicated by suppression of the Noonan tapes.*fn8
Likewise, the court finds that suppression in this case would do little to deter illegal or improper conduct on the part of Government attorneys.*fn9 Even if the court were to find that AUSA Daniel violated Rule 4.2 — although the court specifically has not done so — it cannot say that his conduct, nor that of his collogues at the United States Attorney's office, was so egregious that the court should punish the Government by preventing it from presenting the fruits of its investigation. Contrary to Defendants' assertion, the facts presented do not "illustrate a deliberate attempt by the prosecutor to flout Rule 4.2 by using informant Noonan as an `alter ego' to interview Grass and Brown about the facts under investigation." (Defs. Reply Br. at 19.) Rather, the facts indicate that the Government believed, in good faith, that their conduct did not violate Rule 4.2. The McDade Amendment is a new creature. The breadth of its reach had yet to be tested when the Government came to the not unreasonable conclusion that its long-endorsed investigatory practice of using undercover agents to procure information from represented parties remained unaffected. Even if this assumption turned out to be erroneous, the court cannot say that the Government acted with a willfulness to flout its responsibility to refrain from contacting parties represented by counsel.
In addressing whether exclusion is required for violation of the Fourth Amendment, "[t]he Court has acknowledged that the suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a criminal case." Payner, 447 U.S. at 734 (citations omitted). "As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Calandra, 414 U.S. at 348. Accordingly, where a law enforcement official objectively relies in good faith upon misinformation, the deterrent effect of the exclusionary rule is too attenuated to require suppression of otherwise admissible evidence. See United States v. Leon, 468 U.S. 897, 922 (1984) ("We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion."); Michigan v. DeFillippo, 443 U.S. 31, 40 (1979) (denying suppression of evidence obtained in search incident to arrest made in good faith pursuant to a criminal statute later declared unconstitutional). Additionally, the Court has held that deterrence is an inappropriate justification for sanction "where means more narrowly tailored to deter objectionable prosecutorial misconduct are available." Hasting, 461 U.S. at 506 (holding inappropriate reversal of conviction as sanction for prosecutor commenting on the defendant's silence where prosecutor could be referred to attorney discipline board). Although the majority of these holdings addressed whether suppression is an appropriate remedy for violation of the Fourth Amendment, their reasoning is equally persuasive in the present context. See Payner, 447 U.S. at 735-36 (holding that the standards for excluding evidence pursuant to the Fourth Amendment are identical to those for determining exclusion under the courts' supervisory power, "[i]n either case, the need to deter the underlying conduct and the detrimental impact of excluding evidence remain precisely the same").
When the balancing test is applied to the facts in this case, it becomes clear that suppression would be an unduly harsh remedy. Defendants, not the Government, placed the confidentiality of their relationships with their attorneys in jeopardy by divulging information normally protected by the attorney-client privilege to a third-party. Thus, suppression would not vindicate the confidentiality of the attorney-client relationship. Additionally, the Government relied in good faith on the long line of cases holding that pre-indictment non-custodial interrogation with a party represented by counsel is "authorized by law." The McDade Amendment's command that state rules of ethics apply to Government attorneys to the same extent as private attorneys, at best, arguably manifests an intention to eliminate the type of practice used by the Government in this case. Therefore, the court finds that even if the McDade Amendment placed the Government's conduct outside the "authorized by law" exception to the no-contact rule, it did not do so with enough clarity to warrant a finding that the Government acted in bad faith. As such, the court will not order suppression of the Noonan tapes because the deterrent effect of suppression would be, at best, minimal. Moreover, an alternative, and more appropriate remedy, would be for an aggrieved party to file a complaint before the Pennsylvania Disciplinary Board. See Hasting, 461 U.S. at 506.
In accordance with the preceding discussion, the court will deny Defendants Grass and Brown's motion to suppress the Noonan tapes. The court finds that AUSA Daniel's conduct in this case was "authorized by law," and thus, did not violate Rule 4.2 of the Pennsylvania Rules of Professional Conduct. Alternatively, the court finds that even if the McDade Amendment effectively banned pre-indictment non-custodial undercover interrogation of represented parties by Government agents, the court finds that AUSA Daniel relied in good faith on prior caselaw upholding such practices. Thus, suppression of the Noonan tapes would be unjustified. An appropriate order will issue.