05/27/2015 01:01 pm ET Updated May 26, 2016

I'm Not a Potted Plant; Or Am I?

On July 9, 1987, the defense attorney Brendan Sullivan became an icon, stridently refusing to stand mute as his client Lieutenant Colonel Oliver North was questioned -- sometimes inappropriately - before a Joint Committee of the House and Senate investigating the Iran-Contra scandal that actually implicated the President of the United States. In strikingly plain language, Sullivan made clear to the Committee and - more important in some ways, the viewing public - that one who is subjected to questioning by prosecutors or politicians (who many times have their own agendas) should not be deprived of the true assistance of counsel. In an unforgettable colloquy, Sullivan told the world that the lawyer's role was not to stand mute, particularly when an interrogation seemed to have run amok. The public, even a public that is sometimes prone to render kneejerk decisions about those whom it sees as villains, needed to hear that. And it did.

Here's how it went - the last line of the excerpt being the headline forever associated with Sullivan, and indeed Iran-Contra:

Arthur Liman: [Colonel North] would you have shredded less documents on the 22nd if you had been told that the Attorney General was acting at the specific request of the President, your commander in chief?

Brendan Sullivan: Objection. Pure speculation. Dreamland. It has two ifs in it. And Mr. Liman knows better than most that those kinds of questions, Mr. Chairman, are wholly inappropriate, not just because of rules of evidence, not because you couldn't say it in a court, but because it's just dreamland. It's speculation. It says if you'd done this and if you'd done that and what about this? Come on. Let's have, Mr. Chairman, plain fairness.

Senator Inouye: May I speak? I'm certain counsel realizes that this is not a court of law.

Brendan Sullivan: Believe me, I know that.

Senator Inouye: And I'm certain you realize that the rules of evidence do not apply in this inquiry.

Brendan Sullivan: That I know as well. I'm just asking for fairness. Fairness. I know the rules don't apply. I know that Congress doesn't recognize attorney-client privilege. Husband and wife privilege. Priest penitent privilege. I know those things are all out the window. And we rely on just fairness, Mr. Chairman, fairness.

Senator Inouye: We have attempted to be as fair as we can. Let the witness object if he wishes to.

Brendan Sullivan: Well sir, I'm not a potted plant. I'm here as the lawyer. That's my job.

One would think that the point which was made succinctly, yet forcefully, by Sullivan needed to be made only once, given the viral publicity over the retort.

But, strangely, this is a lesson that should have been learned 30 years earlier when the legendary Edward R. Murrow televised the rebuke by the red-baiting Senator Joseph McCarthy - chairman of the Senate Permanent Subcommittee on Investigations - of counsel's efforts to speak. Annie Lee Moss, a widowed Negro (in the phraseology of the day), and allegedly card-carrying member of the Communist party, was subpoenaed to testify on March 12, 1954 at the televised Senate hearing choreographed by McCarthy, looking at that time into the supposed Communist infiltration of the Army. McCarthy introduced his blatant attempt to get Moss to "name names" as to how she supposedly secured a position in the Pentagon code room (a position which, incidentally, the Pentagon denied she had). Then, her non-Sullivan-like attorney (remember that he was a 1954 black lawyer facing a senator acting like Tomas de Torquemada) had the temerity to try to address McCarthy before the questioning began. As excerpted below, he was promptly - and unceremoniously - shut down as the questioning of Mrs. Moss began:

Moss: Annie Lee Moss.

Voice: M-O-S-S?

Moss: That's right.

McCarthy: Mrs. Moss, let me say for the record and for your information and the information of your counsel that you are not here because you are considered important in the Communist apparatus. We have the testimony that you are, have been a communist. We are really curious, however, to know how you suddenly were shifted from a worker in a cafeteria to the code room. In other words, I am today much more interested in the handling of your case by your superiors than in your own personal activities. However, counsel will question you about your own activities also.

Hayes (Moss Counsel): Mr. Chairman . . .

McCarthy: We will not hear from counsel. You've been told what the rule is. If you have anything to say, say it through your client.

Indeed, Moss's attorney, George Edward Chalmer Hayes, was relegated to personifying the potted plant that Sullivan later derided. One would have thought that the experience that Mrs. Moss (and Mr. Hayes) encountered would not have been repeated in the Congress over 30 years later. But more so, presumably, one would have thought that the intervening Supreme Court decision in Miranda v. Arizona (384 U.S. 436 (1966)), combined with decades of cases heralding the importance of the role of counsel and the notoriety of Brendan Sullivan's remonstration of the United States Congress, would have ended it for all time in the United States.

But, not so. Despite the bad name Joe McCarthy had given to the Congress and the formidable job by Mr. Sullivan in 1987 to try to right that wrong, the United States House of Representatives still limits counsel's role at hearings: "Witnesses at a hearing may be accompanied by their own counsel for the purpose of advising them concerning their constitutional right." Rules of the House of Representatives, Rule XI (k)(1). In other words, an attorney will remain a potted plant, except that he may whisper in his client's ear: "Take Five!" And don't expect the courts to get involved with how another branch of government operates during investigations, as long as a constitutional right is not implicated. Cf., Hannah v. Larche, 363 U.S. 420 (1960). As Sullivan correctly recognized, Congress doesn't even respect non-constitutional evidentiary privileges: attorney-client; husband-wife; priest-penitent.

And it doesn't stop at the Beltway. Along with others, the well-regarded New York State Attorney General's Office has taken the same position going back over 40 years - counsel can be present, so long as he or she remains mute. When the Office conducts on the record, sworn interviews - it calls them "subpoena hearings" rather than depositions - the Office declares that the attorney for the witness is only there as a "courtesy" to the witness. Remarkably, case law supports this position, on the theory that the proceeding before the Attorney General is "investigative rather than adjudicative in nature and there is no constitutional right to the assistance of counsel in administrative proceedings which are purely investigatory . . ." (Kanterman v. The Attorney General of the State of New York, 76 Misc.2d 743 (1973)). This is the case even if disciplinary or criminal proceedings may result from an appearance before an investigative body. (In re Groban,352 U.S. 330 (1957)).

Thus, while a client is being questioned, counsel can have no speaking role other than to assert privilege. This is the case no matter how out of bounds the questioner's conduct might be. And what is the penalty if counsel is impudent enough to interject - or, Heaven forbid, object? Simple. He will be dismissed from the room.

How does this serve anyone's purpose? Even if the attorney knows that the witness - his own client - is mistaken or even lying, or that the witness could not have possibly understood the question, he needs to shut up, because his comment would not be to assert privilege. Is the search for truth - a state attorney's solemn duty - advanced by this regimen? Surely, no government or political agency should want the witness's attorney making a circus out of a deposition, interview, Congressional testimony or "subpoena hearing." But at the same time, wasn't Sullivan correct: shouldn't those testifying be able to exact fairness, even if through statements made by counsel, in exchange for society having rendered to the interlocutor the power to compel testimony? Particularly when the agency demanding the testimony may not be required to adhere to the rules one would have to in a court of law.

Is the answer legislative - do we need federal and state legislators to finally create laws that provide for meaningful representation by counsel? Or do we simply need the authorities to finally recognize that counsellor Sullivan was right: that basic "fairness" compels questioners in such proceedings to let a witness's lawyer do precisely what a lawyer is supposed to do. Attorneys shouldn't be - can't be - relegated to the status of potted plants, who lack the ability to impart fairness to the processes of government.