Before Farrell and Glickman, Associate Judges, and Mack, Senior
The opinion of the court was delivered by: Glickman, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Kaye K. Christian, Trial Judge)
Argued September 28, 2000
This is a mid-trial appeal in a neglect proceeding. The principal question is whether the trial court abused its discretion in prohibiting appellant T.B. from conferring with his criminal defense counsel about his privilege against self-incrimination, and in barring that counsel from the courtroom while T.B. asserted that privilege. We conclude that the trial court erred. Its rulings, which were not justified by any substantial threat to the integrity or confidentiality of the proceeding, arbitrarily infringed T.B.'s common law and First Amendment right to consult freely with his lawyer, and deprived T.B. of informed legal advice about his Fifth Amendment privilege.
The neglect petitions filed by the District of Columbia allege that appellant T.B. has a history of domestic violence and is the prime suspect in the disappearance, and suspected murder, of Y.B., the mother of T.B.'s minor children. Those children, appellees Ti.B. and Ty.B., were removed from T.B.'s care and placed with relatives pending the outcome of the neglect proceeding. T.B., who has not formally been charged with any crime, is contesting the government's allegations and is seeking his children's return.
After the neglect petitions were filed, a hearing commissioner ordered T.B. to undergo a mental evaluation "to explore [his] history of domestic violence, unresolved issues of anger," and other issues. On the recommendation of his court-appointed neglect counsel, T.B. consulted the District of Columbia Public Defender Service (PDS) for advice regarding his Fifth Amendment privilege against self- incrimination. Following that consultation, PDS attorney Jonathan A. Rapping undertook to represent T.B. with respect to criminal law matters. Mr. Rapping inquired with the United States Attorney's Office and learned that T.B. was the target of a grand jury investigation into the disappearance of Y.B. The same information was furnished to T.B.'s neglect counsel by the Assistant Corporation Counsel handling the neglect matters.
In view of this information and T.B.'s privilege against self- incrimination, neglect counsel moved to modify the mental evaluation order so as to preclude questioning about domestic violence and T.B.'s relationship with Y.B. As this motion was still pending on the scheduled evaluation date, Mr. Rapping accompanied T.B. to the evaluation and advised the psychologist that T.B. would decline to answer questions that might tend to incriminate him. So apprised, the psychologist chose not to interview T.B.
Mr. Rapping then filed a notice of entry of appearance in the neglect cases for the limited purpose of advising T.B. with respect to his rights and liabilities as the target of an ongoing criminal investigation. The notice stated that PDS was authorized to furnish such limited representation of T.B. in the neglect proceedings by D.C. Code § 1-2702 (a)(2) (1999). *fn1 Four days after the notice was filed, however, the trial court sua sponte issued an order striking Mr. Rapping's entry of appearance and barring PDS from reviewing the neglect case files. Without mentioning the statutory provision on which Mr. Rapping relied, the order stated that "[t]he Court finds that PDS is not authorized to participate in these confidential proceedings."
In the wake of the trial court's order, T.B.'s neglect attorney moved to withdraw on the ground that she would be unable to represent him adequately at trial without Mr. Rapping's assistance as co-counsel. With the trial date almost upon him, T.B. obtained another attorney, Geoffrey Harris, to represent him in the neglect matters. Mr. Harris, who has criminal defense as well as neglect experience, appeared with T.B. on the day of trial and confirmed that he was ready to proceed. The court permitted T.B.'s appointed counsel to withdraw and allowed Mr. Harris to replace her.
Before trial commenced, the court orally admonished all counsel not to reveal any information obtained in the proceedings, warning that "the Court will deal harshly with anyone who violates" what it called the "veil of confidentiality." *fn2 Counsel for the District inquired whether Mr. Rapping would be allowed to attend the trial. The court ruled that Mr. Rapping "has no place in these proceedings" and would be barred from the courtroom.
On the second day of trial, the District called T.B. as a witness. Mr. Harris advised the court that T.B. would invoke his Fifth Amendment privilege not to testify because he was under investigation for criminal offenses in connection with the disappearance of Y.B. The court ruled that T.B. could not assert a blanket privilege and would have to invoke the Fifth Amendment on a question-by-question basis. Mr. Harris then asked the court to permit T.B.'s criminal defense counsel, Mr. Rapping, to be present "to advise [T.B.] as to what questions could call for incriminating answers." Mr. Harris explained that he did not know "the contours of the criminal case" and that T.B.'s criminal lawyer would better recognize which questions would pose a threat of self- incrimination.
In response to this request, the trial court stated that it "[did] not believe that it's necessary to have the criminal attorney present" because it deemed Mr. Harris to be "competent legal counsel." Unpersuaded by Mr. Harris's protestation that he did not know enough about T.B.'s criminal exposure to be comfortable advising him question- by-question about his Fifth Amendment privilege, the court ruled that Mr. Rapping would not be allowed in the courtroom.
T.B. then took the witness stand and was examined by the District's counsel. On advice of Mr. Harris, T.B. asserted a Fifth Amendment privilege not to answer some (though not all) of the questions he was asked. The court overruled T.B.'s invocation of the privilege in one instance and required him to answer whether he and Y.B. had an arrangement regarding the financial support of their children.
T.B. was still on the witness stand being examined by the District when trial adjourned for the day. The court instructed T.B. that he was not to discuss his testimony "with anyone" during the break, and reminded all present that they were not allowed to share information obtained during the trial with anyone else. Mr. Harris asked for leave to advise Mr. Rapping that T.B. was on the witness stand and asserting a Fifth Amendment privilege. The court denied this request and ordered Mr. Harris "not to tell" Mr. Rapping that his client was testifying. Mr. Harris asked if T.B. himself would be allowed to speak with his ...