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.

New ABA Opinion on Ethical Duty when Client Documents are Subpoenaed

In Formal Opinion 473 (Feb. 17, 2016), the ABA provides new guidance to lawyers receiving subpoenas for client documents or information.  The opinion states that whenever a lawyer receives a subpoena or any other compulsory process for documents or information relating to the representation of a client, several obligations are implicated.  First, the lawyer must consult with the the client, if the client is available.  Next, unless the client instructs otherwise, the lawyer must assert all reasonable claims against disclosure and seek to limit the scope of any disclosure.  Next, if ordered to produce any information, the lawyer should consult with the client on whether to appeal the ruling.  Finally, if the client and the lawyer disagree on how to proceed, the lawyer should consider whether to withdraw from the representation pursuant to Rule 1.16.

The new opinion goes into some detail to explain what the lawyer should do if the client is unavailable, and to the duty to take steps to protect client confidentiality.  The opinion should be a very helpful resource to any lawyer facing attempts to pierce client confidentiality.

The new opinion is also a useful addition to Formal Opinion 10-456 (July 14, 2010), which addressed the disclosure of client information to a prosecutor when a lawyer’s former client brings an ineffective assistance of counsel claim.  Formal Opinion 10-456 makes clear that a lawyer may only disclose confidential information that the lawyer believes is reasonably necessary for the lawyer’s self-defense.

 

Prosecutorial Accountability – An Optimistic Future

Bruce Green and Ellen Yaroshefsky recently posted a new article on SSRN, Prosecutorial Accountability 2.0.  They identify several rhetorical and regulatory shifts that they claim are leading to an era of new prosecutorial accountability.  In their carefully crafted article, they argue that information technology is the main driver behind this shift to hold prosecutors accountable for their actions. They claim that the pendulum long fixed on courts and the media presuming that prosecutors could do no wrong has swung to a more skeptical position.  Let’s hope they are right. Anyone interested in the criminal justice system should read this article.

Indiana Ethics Opinion on Confidentiality and Mandatory Child Abuse Puzzling

A new ethics opinion on confidentiality by the Indiana State Bar Association Legal Ethics Committee reaches some puzzling conclusions.  The committee considered whether Indiana’s mandatory reporting statute for suspected child abuse or neglect required a lawyer who learns of such abuse or neglect while representing a client must report it.  While acknowledging that the Indiana Supreme Court is the final authority on both the law and ethics in Indiana, the committee concluded that a lawyer was not required to report the suspected abuse unless the lawyer believed it necessary to prevent reasonably certain death or substantial bodily harm.  While that seems reasonable on its face, the committee made several leaps in reasoning to get there and may have provided some ill advice to lawyers in Indiana.

Unlike some other states, Indiana’s reporting statute does not exempt lawyers from the reporting duty.  That means, unless the Indiana Supreme Court would step in and decide that the state’s Rule 1.6 trumps the state law, a lawyer who follows the opinion could be prosecuted for failing to report.  In addition, the committee fails to acknowledge that Indiana’s Rule 1.6, like the ABA Model Rule, contains that confidentiality exception “to comply with other law or court order.”

Next, the committee inexplicably reasoned that because of the mandatory reporting law a lawyer must report suspected abuse or neglect “to prevent reasonably certain death or substantial bodily harm” even though the exceptions to confidentiality in Indiana’s Rule 1.6, like in the ABA Model Rule, state that a lawyer may reveal information relating to a client’s representation in order to prevent reasonably certain death or substantial bodily harm.

The ethics opinion may state a good policy position, but the committee goes out on limb by creatively trying to reconcile a lawyer’s ethical and legal obligations in such a situation.  As it stands now, there is a direct conflict between the mandatory reporting law and the ethics rules, and the ethics opinion does not resolve this quandary for lawyers in Indiana.

Lawyer Suspended for Breaching Confidentiality, Among Other Missteps

A Colorado lawyer was suspended from the practice of law for 18 months after disclosing confidential information about his clients in responding to their Internet complaints about his fees or services.  According to the disciplinary order, the lawyer responded to the complaints “with Internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.”  This type of disclosure of confidential information is not covered by any  exceptions to confidentiality in Rule 1.6(b).  In addition, the lawyer sued the clients for defamation and communicated directly with them, even though their lawyer had repeatedly asked him to stop contacting them.  The order states that this violated the anti-contact rule, Rule 4.2.  A story in the ABA Journal about the discipline case is located here.

E-Discovery Hazards Raise Competency and Client Confidentiality Issues

A recent ethics opinion from the California State Bar Committee on Professional Responsibility, Formal Op. 2015-193, outlines how even an experienced lawyer can breach duties of competence and client confidentiality by engaging in e-discovery without the assistance of someone with e-discovery expertise.  In this opinion, a hypothetical Lawyer entered into a joint agreement with Opposing Counsel permitting Opposing Counsel’s vendor to search the Client’s computer system for discoverable electronically stored information (“ESI”) using agreed upon search terms.  The joint agreement contained a clawback provision to permit Client to clawback any inadvertently produced ESI protected by attorney client privilege or work product.

After all the ESI is produced, Lawyer receives a letter from Opposing Counsel accusing Counsel’s Client of destroying evidence and/or spoliation, and threatens motions for monetary and evidentiary sanctions. Lawyer hires an e-discovery Expert who reviews the produced ESI, and tells Lawyer that potentially responsive ESI has been routinely deleted from Client’s computers as part of Client’s normal document retention policy, revealing gaps in the document production. Expert also states that due to the breadth of the agreed upon search terms, both privileged information and proprietary information about the Client’s important new product were revealed to the opposing party, Client’s chief competitor. Expert advises Lawyer that an IT professional with litigation experience would have identified the over-breadth of the search terms and would have advised Lawyer not to agree to such a far-reaching joint agreement.

The committee analyzes the facts, and concludes that the hypothetical Lawyer has violated the duty of competency and may have violated client confidentiality. The committee states that competency requires a lawyer who lacks expertise in e-discovery in a case to do one of the following: either acquire sufficient knowledge and skill before e-discovery begins, or consult a technical expert or associate with competent counsel, or decline the representation. The committee also cautions that even when a lawyer engages an expert or associates with another to assist with e-discovery, the lawyer still has a duty to supervise the work and is ultimately responsible for the work of others.

In concluding that Lawyer may have breached client confidentiality, the committee stresses that the Lawyer agreed to release the ESI to Opposing Counsel without first reviewing the ESI to determine if any material was subject to the clawback provision as being subject to attorney client privilege or work product. A prior review would have also revealed the highly confidential proprietary information and Lawyer could have taken measures to protect Client’s interests.

This opinion is instructive of the need for all lawyers, even very experienced lawyers, to understand new technology or seek the assistance of qualified persons to assist them before using new technology. The opinion also demonstrates how failure to be sufficiently competent in new developments, such as e-discovery, may also violate the duty of client confidentiality.

Crime Fraud Exception for GM’s Outside Counsel in Deadly Ignition-Switch Litigation?

The National Law Journal recently published a story about the possible application of the crime fraud exception to attorney client privilege in the deadly GM ignition-switch cases under the headline “What Did Counsel to GM Know? Plaintiffs allege that GM’s outside counsel, King & Spalding, encouraged GM to enter into confidential settlements to avoid revealing the ignition-switch defects. The plaintiffs allege that King & Spalding had a responsibility to tell federal regulators about the defect if GM did not. The underlying fact scenario of the case is a classic example of the interplay between attorney-client privilege and the exceptions to client confidentiality, and can serve as an example of the obligations of a lawyer or law firm employed by an organization under ABA Model Rule 1.13. One of the lawyer’s for the plaintiff’s claims that there is no evidence so far that King & Spalding advised GM to report the defect to the proper federal authorities, and that “[t]he only focus was settling cases and moving on.”

In January, the New York Times wrote a related story “Victims of GM Deadly Defect Fall Through the Legal Cracks” The article explains how damage caps in many states, combined with GM’s legal strategy to make suing it costly, prevented many injured and families of those injured and killed from obtaining lawyers willing to sue GM over the ignition-switches. Many injured persons and families of those who died found that when non-compensatory damages were capped at $300,000 to $400,000, GM was able to make suing it too costly for plaintiffs’ lawyers to take the cases. This was especially true when victims were young or elderly and had negligible economic damages. When GM did settle, often confidentiality agreements kept the dangerous ignition-switches secret. The story claims that at least 42 persons died in crashes linked to the faulty switches, and GM was able to keep the problem largely hidden for more than a decade. The New York Times story is useful to show how damage caps combined with certain defense strategies can have public safety consequences.