Severe Sanction for Deception

Today's Boston Globe has a front-page article (thanks, "How Appealing") on a hearing officer's recommendation that three prominent lawyers be disbarred for using deceptive methods of evidence gathering.  In her 229-page (!) report, the hearing officer described how the lawyers had tried to develop evidence of a trial judge's bias by tricking the judge's law clerk into divulging incriminating information:

In a plot that involved private detectives, a phony multinational insurance company, and stretch limousines, the lawyers allegedly staged sham interviews with [the judge's clerk] in Halifax, Nova Scotia; Manhattan; and Boston.

Ironically, the lawyers were not only prominent members of the Massachusetts bar, but should have been more knowledgable than most about legal ethics.  One of the lawyers was the past president of the state bar, as well as a past chair of the state bar commission on professionalism.  Another was the former ethics counsel to two Massachusetts governors. 

What exactly did these guys do wrong?  I haven't read the 229-page (!) decision, so I'm speculating here.  A rule in effect in most jurisdictions, including Massachusetts, prohibits the use of "methods of obtaining evidence that violate the legal rights of" a third person.  Mass. Rule of Prof'l Conduct 4.4.  "Legal rights" here obviously refers to law outside the scope of the rules of professional conduct, such as privacy and anti-wiretapping statutes.  For example, the ABA ethics committee has made clear that a lawyer cannot secretly record a telephone call in a jurisdiction that requires consent of all parties to the communication.  ABA Formal Op. 01-422.  Moreover, a lawyer dealing with an unrepresented third person may not state or imply that the lawyer is disinterested.  Mass. RPC 4.3(a).  (In one case, lawyers representing victims of an air crash were held to violate this rule by contacting pilots at the defendant airline, pretending to conduct an impartial safety investigation, when in fact they were gathering evidence for use by the plaintiffs in the lawsuit.  In re Air Crash Disaster, 909 F. Supp. 1116 (N.D. Ill. 1995).)  Finally, if the lawyers had made any false statements to the law clerk, they would have violated Mass. RPC 4.1(a).

There's quite a bit of debate in cases and law review articles over what constitutes "legitimate deception" in evidence gathering.  The issue has general applicability for lawyers for law enforcement agencies, as well as civil rights lawyers who may wish to use tactics like discrimination "testers" to prove violations of law.  The most recent authority I'm aware of is a pair of cases from Oregon, In re Gatti, 8 P.3d 966 (Or. 2000) and In re Ositis, 40 P.3d 500 (Or. 2002).  In Ositis, the lawyer representing a landowner who believed his neighbor was permitting her property to be used as a base of operations by anti-animal-cruelty activists hired a private investigator to pose as a journalist and "interview" the neighbor, hoping to elicit incriminating statements.  The lawyer was reprimanded (note the disparity in severity of the sanction), but the analysis in Ositis isn't that helpful here, because it was decided under Oregon's old rules of professional conduct, based on the ABA Model Code; it was also complicated by a state statute passed in response to Gatti which permitted "lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights." 

Another important case, although slightly off point, is U.S. v. Hammad, 858 F.2d 834 (2d Cir. 1988), which held that prosecutors violated the rule against contacting represented non-clients ex parte; although pre-indictment contacts are permitted by the 6th amendment, there is a provision of the lawyer disciplinary rules in effect everwhere which prohibits communicating with adverse parties who are represented by counsel.  Although Hammad is somewhat anomalous in applying this rule to law enforcement activities, the significance for the Mass. case is that the investigation involved trickery -- specifically the creation of a dummy subpoena that a cooperating witness used to frighten his co-conspirator into divulging incriminating information.  Subsequent interpretation of Hammad shows that the fake subpoena was the wrongful aspect of the investigation. 

Although the lawyers probably thought they were just being creative, the use of deception in evidence-gathering is one of those areas where one has to be extremely careful. 

Comments

[SupremacyClaus]

The target of the deception is a judge. Had it been an adverse third party, the case would have been dismissed, with a letter, no investigation, highly vague and expansive Rule 4.4, or no. If there is an exception to that claim, I would appreciate the reference. Where have the rights of an adverse third party been upheld by a DC, anywhere, any time, under any circumstances, despite the crystal clear language of the Rules? Contacting a represented party does not count, because it furthers cult interest in increasing billable hours.

This decision proves, by its rarity, that the lawyer will not cross, without dire consequences, the criminal cult enterprise, no matter how smart, rich, elevated, or slick. I bet 10 cents, there is no recourse for these unfortunates, all the way up to the SC. The cult wants the message out. No one seems to care if they uncovered the truth about the judge, for some mysterious reason.

Question: Did their supervising partners report them, report themselves for failing to restrain, and failing to report themselves?

The criminal cult enterprise must be decapitated by the arrest of its leadership, by the Executive Branch finally waking up to its duty to the Constitution, now in shambles. Even the ordinary lawyer will be relieved of its oppression, not to mention the long suffering American public.

[SupremacyClaus]

Some distress in that office:

http://www.mass.gov/courts/press/pr051005.html

How Appealing had the decision:

http://www.mass.gov/obcbbo/ccd.pdf

Judge had her own problem:

http://www.brennancenter.org/programs/pester/pages/view_elerts.php?category_id=15&page=38

If this decision stands, then deception violates 4.4. Civility to an adverse third party at a deposition is deception.

From the cappo di tutti cappi, the message is that things are out of balance, and have gone too far. The Restatement Third, The Law Governing Lawyers, p. 9, Section 1, Note d, the Commission speaks:

... self-regulation carries its own risk of under-regulation of lawyers as a whole, regulation (however strict) that is in the interest of lawyers as a group and not the public, or regulation that focuses disproportionately on groups of lawyers disfavored within the controlling bar association or committee."

[John Steele]

Un. Buh. Lievable.

[SupremacyClaus]

Much is disconcerting here. There is something wrong with her.

http://www.bostonbar.org/prs/carpenter.htm

A 4 prong approach might considered. I doubt the victims are imaginative enough to get past the first. Am I brighter, more aggressive, slicker, more legally creative than the victims? Kidding? I just have my high school AP Social Studies and freshman year of college education not erased by cult indoctrination.

1) appeal, as planned.

2) sue the Board for destroying their earnings, and for their gender, under 1983. Remove to New York despite lack of diversity, for justice. Does the Board have 11th Amendment protection or not? Does Title VII of the 1964 Civil Rights Act cover licensing, being the ultimate employment test? Find out.

3) Between the 3 victims, hire a lobbyist to get the Board abolished. Cheap, with a few campaign contributions spread around.

4) Seek to pierce any immunity the author may carry, as a violator of substantive due process, and a spewer of anti-male venom. "Judge, for the sake of justice, on policy grounds, to maintain the reputation of the judicial system, put her through discovery."

Even if all fail, break their budgets. Drive these thugs to the edge of insolvency. The budget of the board will not sustain this approach. Even if all fail, all parties will have new positions in less than a year. The replacements will get the message.

This is one Afghanistan strategy I intend to propose to my people (obviously, not a lawyer, never will be). I share because the lawyer is almost as big a victim of cult oppression as the public.

[David Giacalone]

Brad, you say "Although the lawyers probably thought they were just being creative." Why are you making excuses for these guys? Talk about unbelievable.

[SupremacyClaus]

What is the excuse for never protecting the interest of adverse non-criminal cult third parties, but jumping all about for hundreds of pages, to protect a judge, a threat to the safety of the children of MA, a subject of investigation herself, a dirtbag, but a cult dirtbag, and destroying the careers of top attorneys?

This is political correctness, where the lowest, slimiest of the low must be respected in furtherance of cult interest. Let's not get confused. Political correctness is capitalism run amok. The communists put diversity against the wall and shoot it. PC is money. This is also really annoying Boston, with its self-styled, Hate America, Wish It Were France superiority.

The hearing officer is indefensible, until all non-criminal cult third parties are protected in accordance with the crystal clear language of the Rules of Conduct. These Board victims have a duty to hold this criminal cult capo fully accountable in all available fora, including the legislature, to shut down the Board.

Here are the decisions of these thugs:

http://www.mass.gov/obcbbo/decisions.htm

Rule 3.1 involves the rights of third parties. The actions are listed by rules, find one action on 3.1. Oh, yeah, here is one. It was committed against another lawyer.

Why would anyone make excuses for the criminal cult enterprise, oppressing even the lawyer?

[SupremacyClaus]

As to:

http://www.mass.gov/obcbbo/ccd.pdf

Bar Counsel is a self-styled prosecutor and represents the public (is that correct, or only the criminal cult enterprise? See the link, as in "mass.gov".). The citing of numbers of Rules of Conduct, without their content and how they specifically apply to the facts, forces their being looked up, and applied by the reader. This violates legality, the public trial right of the victims and of the public. Why not have an American criminal trial in Chinese, or in code words, make the public and lawyers look up the translation?

On p. 199. References are made to ABA rules and ALI Restatements. This is private law making. These folks are unspeakable, but have a right to their opinions. Once these are used, their First Amendment rights stop dead, and they are responsible for the consequences of their wrongheaded, mistake ridden, defective product. The public official does not have a right to impose private opinions in a career death penalty case. Where is the warning on the Rules proposed by the ABA and ALI, they are opinions or guidelines, not to be used in real life applications? I missed it.

Aside from the substantive due process violations, the citation is a crime of insurrection against the Constitution and the laws of the Commonwealth. Why not apply the Rules of Conduct of North Korea?

http://www.state.gov/g/drl/rls/hrrpt/2001/eap/8330.htm

"The Constitution contains elaborate procedural protections, and it states that cases should be heard in public and that the accused has the right to a defense; under some circumstances hearings may be closed to the public as stipulated by law. When trials are held, the Government apparently assigns lawyers. Reports indicate that defense lawyers are not considered representatives of the accused; rather, they are expected to help the court by persuading the accused to confess guilt. Some reports note a distinction between those accused of political crimes and common criminals and state that the Government affords trials or lawyers only to the latter. The Government considers critics of the regime to be "political criminals.""

Dozens of remarks about this document (the verdict report, not the N. Korea Rules of Procedure) are needed. However, if any lawyer reads these 2 comments, agrees, then an 8.3(a) duty is induced by Bar Counsel. (Look it up?)

[Carolyn Elefant]

Perhaps the judge was corrupt and had already prejudged the case before the outcome. The lawyers should have used means other than duping her former law clerk, raising his hopes about a job offer and ulmost creating a situation where the law clerk himself could have been sanctioned.

I read a large portion of the decision. The lawyers involved took a sick, pschychotic pleasure in tormenting the judge's former law clerk to force him to rat her out. They promised the law clerk, who'd had a difficult time finding a job, his dream position - and then had him travel to Halifax and New York on fake interviews where he was grilled about the judge's suspect decision. And the lawyers did not even seem to feel guilty or remorseful about what they were doing, nor did they seem to have any thought in mind for how they might protect this clerk if the judge came to be exposed. They toyed with this poor guy, probably laughing about him behind his back.
The Model Code counsels that lawyers in the profession are supposed to educate young associates. As weblogs like Anonymous Lawyer (even though it's not a real law firm partner) point out, too often, older lawyers laugh at or ridicule younger associates who are simply trying to find their way. I find that what these experienced lawyers did to a young associate is quite frankly, unconscionable and though I believe that the bars are often too heavy handed with discipline, in this case, I say right on!!

[SupremacyClaus]

Anyone defending the verdict should address Brad's well articulated point, "There's quite a bit of debate in cases and law review articles over what constitutes "legitimate deception" in evidence gathering." One case of reprimand cited by Brad caused the reduction of billable hours for another lawyer.

Should the lawyers have gotten a "private" deceptive discovery warrant against the clerk and judge from a magistrate at 3 AM, based on probable cause? Is there an expectation of privacy when a judge cuts corners? Is everything done and said during judge working hours the property of the public, anyway? Depose the Judge and its clerks about the performance of their duties. Judges are not George III. The threshold of probable cause would also increase the likelihood of a return on investment. I missed probable cause, if addressed in the opinion. (A Cliff's Notes version would be appreciated. Chatty, aren't we in Boston.)

The defendants should see a lawyer about a suit against the Judge to recover the expenses of the deceptive discovery. Is a licensing action the basis of negligence per se? The Judge and clerk should see an attorney about a suit against the lawyers. Each should try to get a deceptive discovery warrant.

[Brad Wendel]

In response to David Giacalone (why am I making excuses for these guys?): I try to read cases by making the assumption that the lawyers were motivated to do the right thing. In many instances the actual explanation turns out to be that the lawyer was a crook. But there are many more cases in which the explanation is more complicated, and therefore more interesting. Maybe the law is a mess, and the lawyer thought it was permissible to do X, and after looking at the law you can kind of sympathize with the lawyer's belief. Maybe the lawyer was under intense pressure, due to the perceived need to keep a client or powerful partner happy. (Mitt Regan's fascinating book, Eat What You Kill, reveals this sort of dynamic within Milbank Tweed, which helps explain why a successful, intelligent, Harvard-educated lawyer would go to prison for bankruptcy fraud.) Alternatively, the explanation could be cultural factors like the "irrational exuberance" that led Enron managers and lawyers to believe that stock prices would always go up (and thus to devise transactions based on that assumption).

In this case, I haven't read the hearing officer's report, and I was struck by the prominence of the lawyers involved. Maybe they were crooks, but I wanted to imagine what an explanation could be other than their venality. I don't know these guys by reputation, so I have no reason to believe that they're crooks. But I have no reason to believe they're *not* crooks, and the charade they played with this poor law clerk suggests that this wasn't simply a relatively less culpable failure to get the law right.

[David Hricik]

There's some more recent authority than Gatti. In Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., 144 F. Supp.2d 1147 (D.S.D. 2001), aff’d, 2003 WL 22382960 (8th Cir. 2003), for instance the defendants had hired an undercover investigator to pose as ordinary consumers and attempt to purchase snowmobiles that they were not authorized to sell. In deciding that rule 4.2 had been violated, the court held that the contacts with the defendant’s owner, made for the purpose of obtaining admissions, violated Rule 4.2's prohibition against contacts with “represented persons.”

I have a HUGE piece on this that I'll gladly send to anyone who e-mails me at work -- hricik_d@mercer.edu

[supremacyclaus]

Deception under attack in the streets.

http://www.dailybreeze.com/news/articles/1589117.html

[MacK]

Having read the hearing officer's decision -- which is quite carefully put together -- I have to conclude that a serious sanction was more than merited. I was particularly struck by the arrogance of one of the lawyers who made wisecracks at the hearing "quoted" regarding the deception of the law clerk displaying a "nyah, nyah, can't touch me" attitude that his political connections had it would seem have lead him to belive would think was accurate. It is notable that the federal prosecution against them had been dropped apparently on the intervention of Janet Reno.
What is very clear is that there was a real effort to blackmail the clerk based on a problem in his bar application -- he had let slip that one of the lawyers who provided a ltter of reference for that application had done it as a favour to his boss/friend, but had never met him. This was very obviously used to try to extort an affidavit from him -- something that is apparent from FBI transcripts. Basically these guys went sleasy, but assumed their white-shoe style would keep them out of trouble.
One issue that is implicit in the ruling is that the hearing officer thought there was another lie, that a "Halifax Meeting" had not been taped. Much of the activity centers on this Halifax meeting and what was said and there were two inconsistent affidavits which give the impression that someone tried to improve on what evidence had been gathered there. In any event the hearing officers recomendation does manage to illuestrate a huge amount of activity relating to a Halifax recording -- which somehow did not exist to justify it.
In any event -- Disbar them -- I'm afraid yes -- they should get the chop.