The opinion of the court was delivered by: Stengel, J.
John P. Karoly, Jr. has moved to dismiss the indictment*fn1 on the grounds that the government violated his Fifth and Sixth Amendment rights and denied him due process of law. Specifically, he complains that a government agent interviewed him the week before the indictment was filed to learn about aspects of his defense strategy. The government interviews were recorded by the FBI and conducted by an "undercover agent." Because no indictment had been filed against Mr. Karoly when he spoke to the government agent and because his statements were neither compelled nor incriminating, his motion will be denied.
This case arises out of the alleged will fraud committed by defendants John P. Karoly, Jr., Esquire, his son, J.P. Karoly, Esquire, and Dr. John J. Shane. On February 2, 2007, Mr. Karoly's brother and former law partner, Peter Karoly, Esquire and his wife, Dr. Lauren Angstadt, a dentist, died in a private plane crash in Massachusetts. The couple had executed wills in 1985. After their deaths, the defendants produced and attempted to probate wills dated June 2, 2006 that had been found in one of Mr. John Karoly's client's storage units.
The validity of the 2006 wills was contested in Northampton County Orphans Court by two members of the Karoly family who alleged that the wills were fraudulent and the signatures forged. It appears that the will contest case is not currently being litigated.
On May 17, 2007, the FBI searched Mr. John Karoly's home. That same day, Robert Goldman, Esquire advised the government (by telephone) that he represented Mr. John Karoly, Esq. in the ongoing grand jury investigation. Attorney Goldman confirmed his representation of Mr. Karoly by letter to the government on May 25, 2007. All correspondence and grand jury subpoenas for Mr. Karoly were sent to Mr. Goldman from that date forward.
On July 11, 2007, Mr. Karoly met with Mark Mendelson, a Philadelphia real estate developer, who, at the time, was acting on behalf of the government. Mr. Karoly represented Mr. Mendelson in a personal injury case and, apparently, had represented him in a real estate transaction in the Lehigh Valley. Mr. Mendelson had recently been sentenced in a fraud case in federal court and was waiting to learn where he would be serving his sentence. Mr. Karoly was aware of Mendelson's federal charges and his sentence. The two men met at a restaurant in Quakertown, Pennsylvania and discussed the federal investigation into Mr. Karoy's alleged participation in will fraud. According to the government, Mr. Karoly asked Mr. Mendelson what efforts he could take to end the investigation. Gov't Resp. at 5. The exact statements made by Mr. Karoly in this meeting are unknown. Apparently, the wire worn by Mr. Mendelson was not able to record the conversation audibly.
On September 11, 2008, Mr. Mendelson met with F.B.I. special agent Thomas Marakovits and stated that Mr. Karoly had contacted him in August 2008 about the will fraud investigation and that Mr. Karoly had stated that he had to meet with him. On September 16, 2008, Mr. Mendelson contacted Mr. Karoly by phone and Mr. Karoly stated the two should "meet and go over a couple of things." Gov't Resp. at 7. The two men arranged to meet at Mr. Mendelson's home in Villanova, Pennsylvania two days later.
On September 18, 2008, Mr. Mendelson consented to having his interview with Mr. Karoly video recorded by the government at his home. Mr. Karoly drove from his law office in the Lehigh Valley in the afternoon and met with Mr. Mendelson. During the meeting, Mr. Karoly spoke about his defense and his strategy with respect to the tax and will fraud charges that might be filed against him. Mr. Mendelson suggested repeatedly that a donation to certain politicians could make the case against him go away.
The next day, on September 19, 2008, Linda Dale Hoffa, Esquire, the chief of the criminal division at the United States' Attorney's Office, met with counsel for all defendants in this case*fn2 regarding the possibility of an indictment being returned in this case. AUSA Weber was also present at the meeting. On September 25, 2008, the government informed defense counsel that they would present the case to the grand jury for indictment. Mot. to Dismiss, Ex. 13.
A. The Government's Actions Did Not Violate the Rules of Professional Conduct
Rule 4.2 of the Pennsylvania Rules of Professional Conduct (the "no-contact" rule) prohibits attorneys from communicating "about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law." Rule 8.4(a) prohibits attorneys from knowingly assisting another in violating the rules. The defendants argue that the prosecutor in this case, Seth Weber, Esquire, violated the no-contact rule by having an undercover agent for the government contact Mr. Karoly, elicit statements about his possible defenses and video-tape the conversation several days before issuing the indictment. In order to gain dismissal of the indictment on the grounds of an ethical violation, Mr. Karoly must show (1) that AUSA Weber violated Rule 4.2, (2) that Mr. Karoly was "represented by counsel at the time the statements were elicited," and (3) that the remedy he requests is appropriate. See United States v. Grass, 239 F. Supp.2d 535, 539 (M.D. Pa. Jan. 13, 2003); United States v. Veksler, 62 F.3d 544, 548 (3d Cir. 1995).
In this case, the prosecutor has not violated Pennsylvania's ethics rules because Rule 4.2 "specifically makes an exception for those contacts which are 'authorized by law.'" Grass, 239 F. Supp.2d at 541 (quoting Rule 4.2). The Third Circuit has held that "pre-indictment investigation by prosecutors is precisely the type of contact exempted from the Rule as 'authorized by law.'" United States v. Balter, 91 F.3d 427, 436 (3d Cir. 1996).
Other circuits have also held that the no-contact rule is not violated when undercover agents have conversations with represented parties, pre-indictment, in non-custodial settings in the course of criminal investigations. United States v. Ryans, 903 F.2d 731, 739 (10th Cir. 1990) (the no-contact rule "was not intended to preclude undercover investigations of unindicted suspects merely because they have retained counsel"); United States v. Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973) ("in the investigatory stage of the case, the contours of the 'subject matter of the representation' by appellants' attorneys, concerning which the code bars 'communication,' were less certain and thus even less susceptible to the damage of 'artful' legal questions the Code provisions appear designed in part to avoid"); United States v. ...