March 19, 2006

Dear Chuck, Thanks For Your Kind Attention!

On 3/17/06, O'Connor, Charles (USACAN) <Charles.O' Connor@usdoj.gov> wrote:
Mr. Iwama -

Today, I have been contacted by three different employees of the Bureau of Reclamation regarding calls Mr. Braun is making to them regarding litigation issues.  They know it would be improper and do not want to discuss those matters directly with your client, but they do not want to seem rude or unresponsive to his needs.  Likewise, I believe it is improper for Mr. Braun to contact those employees directly about matters in litigation.  Nevertheless, the Bureau employees have, once again, been instructed that it would be improper for them to communicate directly with Mr. Braun on the subjects he is raising with them.

Would you kindly ask your clients, Mr. and Mrs. Braun, to cease phoning Bureau employees about issues pertinent to the litigation, including your contention that the Bureau must get certain permits for the Brauns?  May I suggest, further, that they direct all such questions, requests for documents, etc., to me, through you, as their counsel?  If there are practical matters to address regarding their trailers, etc., or movement of same, please have the Brauns' relocation company (or expert) contact Pete Lucero, as we have previously asked.

As always, please feel free to contact me if you have any questions regarding any of the foregoing.

Thank you.
Chuck O'Connor
AUSA
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From: Frank Iwama [mailto:frankiwama@gmail.com]
Sent: Sunday, March 19, 2006 4:10 PM
To: O'Connor, Charles (USACAN)
Cc: Oscar Braun; Andrea Braun DDS Inc
Subject: Re: Mr. Braun's Direct Contacts With U.S. Bureau of Reclamation Employees re Litigation Issues

Mr. O'Connor:

Thank you for your-email regarding your concerns with respect to Mr. Braun's recent contacts or communications with BOR officials/staff requesting information allegedly relating to litigation issues.  Please understand that I was not privy to Mr. Braun's direct communications with BOR and thus I am not familiar with the precise nature of the discussions and the relationship of Mr. Braun's requests for public information to pending litigation issues.  Please be assured that I will be scheduling a meeting with Mr. Braun to discuss your and BOR's concerns.

In order to alleviate your concerns and to comply with your recommended procedure, I request your cooperation and assistance in promptly providing a more detailed response to my previous formal request for permits/exemptions and Pleasure Cove roadway work and repairs.  See the following for background information regarding these issue:

My e-mail to you of Wednesday, February 22, 2006 at 5:53 PM setting forth details of the requested information;

Your e-mail to me of Friday, March 10, 2006 at 6:18 PM wherein you responded: "Napa County officials have advised the Bureau of everything required of it, and the Bureau has either satisfied those items or will do so on a case-to-case basis for each space, before or as it is cleared.  All other permits and requirements are the responsibility of the owner or person ( i.e., professional relocation company) actually doing the move.  The Bureau has no responsibility for getting other permits or satisfying other requirements for the Brauns' move or for that of anyone else." 
Please provide more specific details regarding BOR's communication with Napa County officials, including the names of officials contacted together with the requirements (items) that BOR has and/or will satisfy to comply with Napa County ordinances and codes.  Did BOR contact State of California officials to determine whether there are any permit or compliance requirements?  Did BOR review whether there are any Federal, DOI and/or BOR permits or compliance requirements?  Your response did not address the issue regarding work and repairs required on Pleasure Cove roadways to facilitate the relocation and removal of the Braun's mobilehomes.

In addition, please communicate with the BOR officials/staff who have expressed concern about Mr. Braun's contacts and requests for public information allegedly related to the pending litigation. Again, I request your cooperation and assistance in providing me, as counsel for the Brauns, with BOR's response to Mr. Braun's for request for publication information relating to Pleasure Cove and Lake Berryessa issues.

I understand and appreciate your professional concern about the impropriety of BOR employees directly discussing matters with Mr. Braun and Mr. Braun directly contacting BOR employees about matters in litigation.   

Your concern raises interesting ethical legal issues relating to counsel and the practice of law.  My preliminary research into this ethical matter indicates that the only prohibition against communication, either directly or indirectly, with a represented party applies to counsel only.  (See California Rules of Professional Conduct, Rule 2-100; ABA Model Rules of Professional Code, Rule 4.2). 

Furthermore, the California Rules does not prohibit counsel's communications with a public officer, board, committee, or body.  [ See Rule 2-100(C)].  The Discussion paragraph to Rule 2-100 specifically provides, inter alia, as follows: " Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing is the rule prevents a member fo r  advising the client that such communication can be made."   (Emphasis added).

Aside from the practical considerations involved in any litigation, I am reluctant to chill Mr. Braun's First Amendment rights of freedom of speech and expression, especially in communications to or with government officials acting in their official capacity as servants of the people.  I will be discussing the concerns you raised in your thoughtful e-mail . 

Please understand that, although we may often differ on issues relating to the litigation, I always respect your professionalism, your role as an officer of the court and your position as counsel for the U.S. government.  (As you may recall, I mentioned that I previously served in a similar position as a deputy attorney general for the State of California.).  Thank you for your kind attention. Best regards.

Frank A. Iwama
Tel: (650) 591-6200
E-mail: frankiwama@gmail.com  

Tell It To Da Judge !

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