The non-legal press doesn’t usually get very deep into questions of legal ethics, but New York Magazine did a reasonable job of it in its hard-hitting piece this week on “The Bad, Good Lawyer” David Boies.

The article asks whether Boies has crossed an ethical line, principally in his work on behalf of Harvey Weinstein (This blog argued before that he did, in The Weinstein Saga: Now Featuring Lying Investigators, Duplicitous Journalists, Sloppy Lawyers.)

While admirably tough on Boies, it’s a shame the piece conflates unethical, illegal or even bad behavior with the decision by Boies to represent Russian oligarch Oleg Deripaska, Republican fundraiser Elliott Broidy or former Malaysian Prime Minister Najib Razak, who is accused of money laundering. There is no indication Boies enables these people or is somehow complicit in what they did to get themselves into trouble.

Similarly unnecessary in a serious look at a lawyer’s ethics are throwaway lines such as Boies’ “cozy personal relationship” with Bill Clinton. If that’s a negative, you could say the same about dozens of lawyers and hundreds of famous people.

But, the information in the story about the involvement of Boies’ daughter in movies produced by Weinstein’s company while Boies was advising Weinstein was interesting, as were the attacks by Boies on one outspoken Weinstein Company director, Lance Maerov, who turned out to be asking good questions about Weinstein’s personal conduct. Unlike some of the Weinstein Company directors, Maerov was doing his job.

What’s as disturbing as the way Boies and his firm failed to supervise a fraudulent investigation into Weinstein accusers and others by Israeli company Black Cube, is the defense of the practice by lawyers interviewed by the magazine. As we wrote about before, the agents of a U.S. lawyer shouldn’t go around pretending to be people they are not. A U.S. lawyer has the duty to supervise any agents the lawyer hires. Period.

Yet New York reports that “Some corporate litigators shrug off the Black Cube revelations, saying the only thing that was surprising was that all the embarrassing details escaped the usual vault of attorney-client confidentiality. ‘That happens, it doesn’t shock me,’ [prominent entertainment lawyer] Bert Fields says of the firm’s impersonation practices.”

Even worse was the quote from “another attorney who has dealt with Boies in the past,” who brushed the fraud off this way: “The technique is a tool … Lizzie Borden misused the ax.” Many lawyers said similar things to the article’s author: “This is just what lawyers do.”

If this is just what lawyers do, those lawyers ought to be disciplined for it.

Lawyers who know anything about professional responsibility know it is wrong to send investigators out to commit fraud. A quick instruction to “follow the rules” is not enough to qualify as adequate supervision.

Getting away with it is hardly justification. Imagine if someone defended unauthorized dipping into client escrow accounts. As long as the money gets paid back and the client is no wiser, who is harmed?

No lawyer would dare make that argument, but in the case of using fraudulent techniques, it’s all supposed to be OK if you don’t get caught.

If anyone wants to hire a lawyer they want to be sure won’t cross ethical lines, this is a good test question for them: Is it OK to hire investigators to set up fake identities to lure people into interviews?

For more good ways to screen for lawyers and investigators who know and abide by the rules, see my American Bar Association article, Five Questions Litigators Should Ask Before Hiring an Investigator (and Five Tips to Investigate it Yourself).

One lawyer we know has a stock answer when clients ask him how good their case is: “I don’t know. The courts are the most lawless place in America.”

What he means is that even though the law is supposed to foster predictability so that we will know how to act without breaking our society’s civil and criminal rules, there is a wide variety of opinion among judges even in the same jurisdictions about the matters that make or break a case on its way to a jury.

Our friend’s answer came to mind while reading an interesting roundup of experienced trial lawyers over the weekend about why the trial of Bill Cosby outside Philadelphia resulted in a deadlocked jury and mistrial, announced on Saturday.

In the New York Times, the attorneys mostly fell into two camps: those who thought lead witness Andrea Constand presented the jury with credibility problems because of inconsistent testimony, and those who thought the judge’s decision to limit the admission of evidence of many other similar allegations substantially weakened the prosecution’s case.

My view is that the two reasons are linked: evidence that many women have made claims similar to Constands’ could easily have overcome the credibility problem if the jury had been able to hear about many of the other women who alleged Cosby had drugged and had sexual contact with them too.

In another case with identical facts and a different judge, the other accusers may have made it in a great example of two things we tell clients all the time:

  1. Persuasive evidence is good, but admissible evidence is what you really want when you know you’re going to trial.
  2. A lot of legal jobs are now being done by computers, but while there are human judges they will differ the way humans always do: in a way that is never 100% predictable.

Admissibility

When we are assigned to gather facts in civil or criminal matters, all of the evidence we get must always be gathered legally and ethically. Otherwise it could easily turn out to be inadmissible. But even if you do everything right, admissibility is sometimes out of your control. The whole case can turn on it.

If all you are doing is trying to get as much information as you can without any thought of taking it to trial, then admissibility may not be much of a concern. Think about deciding whether someone is rich enough to bother suing using hearsay evidence; or finding personally damaging information that may be excluded as prejudicial, but even the thought of arguing a motion about that information would be too much for the other side to bear. It could increase the chance of a more favorable settlement for you.

In the Cosby case the information in question would have been very helpful to the prosecution.

Ordinarily the justice system doesn’t like to see evidence of other bad acts used in a case to paint a picture of  a defendant’s character. Rule 404 (b) of the Federal Rules of Evidence excludes this kind of thing, but allows admission of evidence of another act “as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

So the prosecution could have argued that all the other accusers making similar claims that they were drugged and subjected to sexual contact were evidence of Cosby’s intent, or a lack of accident, and may even have been seen as preparation for the time Constand went to Cosby’s home and was drugged.

But the judge wouldn’t let any of that in. In Pennsylvania, the rules in this section are tougher on the prosecution than are the federal rules. The state’s rule 404(b) (2) “requires that the probative value of the evidence must outweigh its potential for prejudice. When weighing the potential for prejudice of evidence of other crimes, wrongs, or acts, the trial court may consider whether and how much such potential for prejudice can be reduced by cautionary instructions.”

It seems that the judge was afraid that even warning the jury not to read too much into the other accusers would have prejudiced them even if he instructed them that the other accusers alone did not constitute proof of Cosby’s guilt — in this matter with Constand.

Unpredictability

The legal world is justifiably occupied in trying to figure out how to reduce costs by automating as many tasks as possible. Gathering of some facts can be automated, but not always, for the simple reason that facts are infinitely variable and therefore not wholly predictable.

Implicit in fact gathering is evaluating the facts you get, as you gather them. You are constantly evaluating because you can’t look everywhere, so promising leads get follow-up, the others don’t. Machines can scan millions of documents using optical character recognition because there are only so many combinations of letters out there. But the variety of human experience is limitless.

If machines can’t be trusted to properly evaluate someone’s story, imagine the problems if that story has never been written down. Think about all the things you would not want the world to know about you. How much of all of that has been written down? Probably very little. It was human effort alone that developed the other witnesses the prosecution wanted to call.

The only way a computer might have helped in this case would have been to predict – based on prior cases – which way the judge would rule in excluding the other evidence. Even that would be a tough program to write because these decisions turn on so many unique factors. But since judges are chosen at random, it wouldn’t have helped shape the decision about whether or not to charge Cosby.

Want to know more about our firm?

  • Visit charlesgriffinllc.com and see our two blogs, this one and The Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.
  • If you are member of the ABA’s Litigation Section, see my piece in the current issue of Litigation Journal, “Five Questions Litigators Should Ask: Before Hiring an Investigator (and Five Tips to Investigate It Yourself).

It’s cloud illusions I recall

I really don’t know clouds at all

–Joni Mitchell

Today’s decision by the Second Circuit that Microsoft did not have to hand over data stored on its server in Ireland should remind us all that information isn’t just “out there.” As with printed information so it is sometimes with electronic data: physical location matters.

The court imposed a major limitation on the scope of a warrant issued under the Stored Communications Act. It reversed the Southern District of New York’s Chief Judge in quashing a warrant issued to Microsoft to turn over emails stored outside the United States. The full opinion is here.

This blog doesn’t usually get into the weeds when it comes to the Stored Communications Act, but we are intensely interested in how to find things and how to get them to the clients who need them.

The case reminds us that even though a lot more information than ever before is stored electronically, it still matters greatly where it is stored.  Crucially, electronic storage is not the same as accessibility via the internet.

Even in the U.S, most counties do not put all of their records on line. Those that purport to do so can have less than complete recordkeeping compared to the data that is searchable on site at the local courthouse.

Just the other day we read in the newspaper about an old case in Bergen County, New Jersey that would help our client. The case was nowhere to be found on line at the New Jersey courts website. When our retriever travelled to Bergen County, he was told that the case had been destroyed.

Were we out of luck? No. The same parties had gone at it in another New Jersey county, and had attached a copy of the Bergen County suit to the one in the other county. That other suit (also not on line but visible on the computers on site) had not been destroyed. We were then able to see what the Bergen suit was all about.

None of this was accomplished on the internet, which is just a series of boxes that sit in different rooms in different jurisdictions.

Which jurisdictions the boxes are in can make all the difference.

 

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.