DA Had Right to Subpoena Defense Attorney, Judge Says

, New York Law Journal

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The Manhattan District Attorney's subpoena compelling a criminal defense attorney to testify about his communication with a witness in his client's case "was in all respects legal, ethical and proper," a judge said.

"The People may summon before that grand jury any witness whom they believe has relevant information concerning the crime under investigation," Manhattan Supreme Court Justice Charles Solomon (See Profile) ruled in People v. Hovan, Indictment 2557-13.

Meanwhile, another judge, responding to the attorney's concerns about the chilling effect that such subpoenas could have on defense investigations, said the matter presented "serious policy considerations" but the practice is not commonplace.

Defense attorney Vinoo Varghese, of Varghese & Associates, was subpoenaed by the D.A.'s office in October 2013. Varghese's client, Richard Hovan, was a teacher at Riverdale Country School charged with rape and engaging in sexual conduct with a teenage student.

He was indicted despite the favorable testimony of his ex-fiancee, Marina Bontkowski, in April 2012. After her testimony, the D.A.'s office started investigating if Bontkowski had committed perjury.

Prosecutors said they discovered communications between Hovan and Bontkowski showing that Hovan wanted her to speak with his lawyer, Varghese, about her prospective testimony to the grand jury. Prosecutors said they subpoenaed Varghese when "faced with clear evidence" that Bontkowski had perjured herself after being pursued by Hovan and Varghese.

After receiving the subpoena, Varghese moved to dismiss the indictment, citing the subpoena as "outrageous government conduct." He argued that any conversation with a witness is protected under the attorney work-product doctrine.

He called the subpoena unconstitutional, unethical, and "a brazen attempt to deprive Mr. Hovan of his choice of counsel and deny him due process of law." Varghese would have to withdraw from the case if forced to testify, he said.

Ultimately, Bontkowski pleaded guilty to a perjury misdemeanor in November 2013, admitting under oath she lied about an important detail during her initial testimony.

After she pleaded guilty, prosecutors withdrew the subpoena to Varghese.

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