Former Prosecutor Disciplined for Contacting Alibi Witnesses through Fictitious Facebook Account

The Ohio Supreme Court in Disciplinary Counsel v. Brockler recently imposed a stayed suspension on an ex-prosecutor who used a fictitious Facebook account to contact alibi witnesses in a criminal case that he was prosecuting. The discipline came after the prosecutor had been fired for “his unethical conduct in creating false evidence, lying to witnesses and another prosecutor, and damaging the prosecution’s chances in a murder case . . . .”

The Court found that the prosecutor doubted the alibi witnesses’ stories and created a fictitious Facebook account to contact the witnesses.  In setting up the account, the male prosecutor used a pseudonym, posed as a woman, and added pictures, group affiliations, and “friends” that he based on the defendant’s jailhouse telephone calls and Facebook page.  He contacted the witnesses claiming that he was romantically involved with the defendant, and he discussed the alibi as if it were false.  He had separate Facebook chats with two witnesses, and he tried to get them to admit that they were lying for the defendant, or would lie for him, and he tried to convince them to talk with the prosecutor.  After chatting with them for several hours, he thought that they were becoming suspicious so he printed out copies of the chats, put them in the case file, and deleted the Facebook account.

Subsequent to being fired and before his disciplinary hearing before the Board of Professional Conduct, the prosecutor gave press interviews in which he claimed that such ruses where common among prosecutors to get at the truth and that he did this to keep a murderer behind bars.  A year after he was fired, the defendant was convicted of aggravated murder and other related charges.

Prior to the hearing, the prosecutor entered into a stipulation that he had violated Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.  He urged the disciplinary board to carve out an exception for “prosecutorial investigation deception.”The board refused to do so, noting that it had  previously disciplined three non-prosecutors for engaging in dishonest conduct involving contact with witnesses in their clients’ cases.  The board also found the former prosecutor guilty of Rule 8.4(d), engaging in conduct prejudicial to the administration of justice.

The Ohio Supreme Court upheld the board’s findings, but split 4-3 on the sanction of a stayed one year suspension from the practice of law.  Two of the dissenting justices favored the one year suspension without a stay, and one justice favored an indefinite suspension.  In the prior cases involving non-prosecutors, two lawyers received stayed six-month suspensions for making misrepresentations to a client’s former landlord to see if the landlord would slander the client, and one lawyer received a one-year suspension, six months stayed, for intimidating a deposition witness by creating the false impression that the lawyer had compromising person information that could be used against the witness.

This case, and other cases, should serve as warnings about the limits of advocacy.  While seeking truth is noble, using deceit and misrepresentations in an effort to help one’s case is going beyond what the ethics rules allow.

Former GE General Counsel Ben Heineman Gives Advice to In-House Counsel

The April 2016 issue of Corporate Counsel Magazine (subscription required) features an article by Ben W. Heineman, Jr., who served as GE’s senior vice president-general counsel from 1987 to 2003 and then senior vice president for law and public affairs from 2004 until his retirement at the end of 2005. Heineman is currently a senior fellow at Harvard’s schools of law and government. The article contains excerpts from Heineman’s much-anticipated forthcoming book, The Inside Counsel Revolution: Resolving the Partner-Guardian Tension (Ankerwycke, 2016).

In the book, Heineman makes the case for his ambitious vision of the modern general counsel: “a lawyer statesperson who is an outstanding technical expert, a wise counselor and an effective leader, and who has a major role [in] assisting the corporation [to] achieve the fundamental goal of global capitalism: the fusion of high performance with high integrity and sound risk management.” In carrying out this role, the general counsel must resolve “the most basic problem confronting inside lawyers: being partner to the board of directors, the CEO and business leaders but ultimately being guardian of the corporation.” Accordingly, the book provides some guidance on how to resolve the partner-guardian tension that is inherent in the role.

The book can be pre-ordered here.

Meet Ken Feinberg, the Master of Disasters | | Observer

Source: Meet Ken Feinberg, the Master of Disasters | | Observer


A good profile of the ADR superstar (wherein I get some “ink”). – gwc

Meet Ken Feinberg – the Master of Disasters //NY Observer

“It’s certainly a triumph of branding. There’s no doubt about that,” said George Conk, a law professor at Fordham University and an expert on torts law. “He’s a dominant presence.”
“His real innovation may have been realizing that if you want a Resolution, you have to make sure everyone participates in a claims program. This means “you’ve got to offer just about everybody something, including people who have weak claims,” said Mr. Conk, the Fordham University professor. “You can’t pay fraudulent claims, but you can pay weak claims.”

Posner: The Professional versus the Business Model in Law and Medicine – The Becker-Posner Blog

Source: Posner: The Professional versus the Business Model in Law and Medicine – The Becker-Posner Blog

The Professional versus the Business Model in Law and Medicine–Posner – The Becker-Posner Blog

by Richard Posner

The central focus of economic analysis of markets is the activity of profit-maximizing business firms in unregulated competitive markets; and such firms are indeed the central players on the supply side of markets in a free-market economy. Analysis of profit maximization is complicated by the fact that large business firms are complex organizations, and persons who compose such a firm, ranging from shareholders to rank and file workers, have conflicting incentives which can blunt profit maximization to an extent. Competition is itself a complex activity, and firms often find it more profitable to collude in price and concentrate on product competition instead. There are also nonprofit enterprises and government producers to complicate the picture.

An important though it seems a diminishing example of a service provider that deviates from the standard model of a profit-maximizing competitive firm is a professional organization such as a law firm or a medical practice. Professionals include besides lawyers and doctors architects, nurses, teachers, engineers, clergy, and military officers (the list is not example), and they constitute an important segment of the economy; there are, for example, a million lawyers and more than 700,000 doctors.

Law and medicine are the oldest professions (other than clergy), the most prestigious and highly remunerated, the most influential, and the most discussed, praised, and criticized. They are also changing at a rapid rate—and in fact changing from professions to businesses, although the change may be reversed in the case of medicine. (I can’t see that happening in law.)

The traditional concept of the profession (the concept that is undergoing change) provides an interesting contrast to the concept of the profit-maximizing business firm. In the business model, the goal is profit maximization in a competitive environment that operates in a basically Darwinian fashion (survival of the fittest); risk is pervasive and both extraordinary profits and devastating losses are real possibilities. Employment and leadership in such an environment attract many and repel many. The people it attracts tend to be aggressive and daring. The ones it repel tend to be cautious and thoughtful.

In the traditional professional model, risk both upside and downside is trimmed by a combination of regulation and ethics both aimed at muting competition. With muted competition the lawyer or doctor can realistically aspire to a safe upper-middle-class income, but he is unlikely to become wealthy. The result, in combination with requiring postgraduate education and qualifying exams for entry into the profession and subjecting members of it to professional discipline, is to attract a type of person quite different from the entrepreneurial type—the latter a type exemplified by such extraordinarily successful college drop-outs as Bill Gates, Steve Jobs, and Mark Zuckerberg. The professional model attracts a more studious, intellectual, risk-averse type of person.

Why does society value such persons and create a comfortable niche for them? The answer is that some goods and services involve a degree of complexity that makes it very difficult for consumers to evaluate the quality of the goods and services. Legal services and medical treatment are important examples. Both involve considerable uncertainty (even the best lawyer loses some cases, even the best doctor fails to cure some patients). When a consumer is unable to determine the quality of a product or service, the provider has to be regulated, either directly as in the case of the regulation of the drug industry by the Food and Drug Administration or indirectly as in the professional model, in which the conditions for becoming a member of a profession encourage self-selection by persons likely to be trustworthy, responsible, and ethical because less inclined to cut corners in order to make a killing.

The professional model in law began to wane in the 1970s, with the beginning of the deregulation movement, which loosened restrictions on competition in legal services. The trend continued in subsequent decades, and was marked by an increased spread in earnings within law firms, an increased dispersion in the size of law firms, and increased turnover—in particular, the tendency of successful lawyers to move from firm to firm (taking their clients with them) in quest of higher incomes. Today, law firms closely resemble business firms. I am speaking mainly of law firms that handle corporate business, not of criminal or tort lawyers, who tend to practice by themselves or in small firms.

Corporate lawyers today don’t want just a comfortable upper-middle-class income; they want to be rich; and one reason is the increased risk they face. Few law firms (remember that I’m talking only about corporate-law firms) any more practice “lockstep” compensation, in which all partners of the same vintage in a firm are paid the same—a risk-minimizing method of compensation that used to be the norm in large law firms. Today a lawyer faces the risk, if his productivity declines, of seeing his income decline, or indeed of being pushed out of the firm altogether; and to cushion that risk, naturally he wants to earn as much as he can while he can.

Federal Circuit Recognizes Independent Patent Agent Privilege

This week, the Federal Circuit found that “patent agent”-client privilege exists independent from the attorney-client privilege, resolving a district court split, according to IPethics and INsights.

While the court recognized the “presumption against the recognition of new privileges,” including that “courts have consistently refused to recognize as privileged communications with other non-attorney client advocates,” it  found “that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.”

I find this decision particularly interesting in light of the increasing numbers of non-lawyer legal services providers.  While the privilege will no doubt remain sacred, the court’s reasoning did rely on the “clear congressional intent to authorize an agency to create and regulate a group of individuals with specific authority to engage in the practice of law,” a factor which will no doubt be relevant as our regulatory scheme increasingly embraces alternative legal service providers.

h/t to Wake Law Student and Patent Agent John Sears.



Conflicts ofInterest> Civilian Complaint Review Board – APU and Police Discipline

Source: Civilian Complaint Review Board – APU and Police Discipline


Richard Emery is Chairman of the New York City Civilian Complaint Review Board which prosecutes complaints of improper conduct by police officers.  The Police Commissioner retains the power to decide the level of discipline in all cases that are “substantiated” by an Administrative law judge.  Emery has no adjudicative role.

Emery is a name partner in a law firm which sometimes represents plaintiffs in federal civil rights actions against police officers and the City.  After the CCRB found a complaint to be “substantiated” the firm filed suit on behalf of the complainant.  Emery applied to the City’s Conflict of Interests Board for a a waiver under the City Charter’s §2604. it provides:

Prohibited interests and conduct. a. Prohibited interests in firms engaged in business dealings with the city. 1. Except as provided in paragraph three below, (a) no public servant shall have an interest in a firm which such public servant knows is engaged in business dealings with the agency served by such public servant; provided, however, that, subject to paragraph one of subdivision b of this section, an appointed member of a community board shall not be prohibited from having an interest in a firm which may be affected by an action on a matter before the community or borough board,

According to a report in the Daily News the COIB granted a waiver which required that he be screened from any involvement, and, presumably, from sharing in any fees earned.
On February 17, 2017 a police union, the NYC Sergeants Benevolent Association issued this statement:

New York – The 13,000 member New York City Sergeants Benevolent Association (SBA) has learned that the Chairman of the Civilian Complaint Review Board, Richard Emery, through his law firm, Emery, Celli, Brinckerhoff & Abady, is now representing a former CCRB complainant in a civil rights lawsuit against the City and several members of the NYPD.
While this revelation is outrageous, it is not surprising. Mr. Emery’s firm has made a fortune suing the City of New York and the members of its police department for many years.
“This is outrageous and demands an immediate investigation by the New York City Conflicts of Interest Board,” said SBA President Ed Mullins. “It appears that Mr. Emery is using his position as Chairman of CCRB to steer potential clients to his law firm and influence investigations at CCRB in which his firm has a potential financial benefit. It is no coincidence that Mr. Emery’s firm entered the case of Luckey v. City of New York et al immediately after CCRB completed its prosecution of Mr. Luckey’s CCRB complaint.
“The rank and file members of the NYPD continue to be the most scrutinized law enforcement agency in the United States,” added Mullins. “Although we encourage accountability and do not object to fair inquiries, the realization that the Chairman of CCRB – which defines itself as an ‘independent agency’ charged with investigating police misconduct – seeks to personally profit financially from his own agency’s decisions, is astonishing and unethical.
“The simple fact that Mayor DeBlasio chose to appoint a lawyer with a decades’ long history of suing the NYPD is, in and of itself, shocking. CCRB is an agency which has virtually no credibility among law enforcement officers and the public. This newest revelation merely confirms what New York City police officers have long believed: CCRB is a fraudulent agency which makes no effort at impartiality. Mr. Emery’s efforts to obtain personal gain off the backs of honest cops is brazen and immoral.”

There will doubtless be a motion to disqualify Emery’s firm by the defendant police officer whose lawyers will presumably be retained by the union.
Does Emery’s firm have a conflict of interest under RPC 1.7?  Under RPC 1.8? Is the COIB waiver a defense against disqualification under RPC  1.11? Is RPC 1.10type screening adequate?

Civilian Complaint Review Board – APU and Police Discipline

Historically, when the board substantiated a complaint and found that an officer committed misconduct, it forwarded the case to the New York City Police Department (NYPD), in most cases with a disciplinary recommendation.

While the CCRB has the authority to investigate complaints and to determine if misconduct occurred, under the law only the police commissioner has the authority to impose discipline and decide the appropriate penalty.

However, on April 2, 2012, the NYPD and the CCRB signed a Memorandum of Understanding (MOU) which conferred on the CCRB the power to prosecute substantiated cases where the board recommended “charges and specifications,” the most serious discipline.

As a result, the CCRB’s Administrative Prosecution Unit (APU) now prosecutes nearly all these cases, with limited exceptions. The trials are held at the police department, before an administrative law judge, known as a deputy commissioner for trials. If an officer is found guilty, punishment can be: a warning and admonishment, loss of vacation days, suspension without pay, a dismissal probation, or termination from the NYPD. The police commissioner retains the authority to decide the level of punishment.

View calendar of trialsRead the latest APU quarterly report to the police commissioner