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).

Decent investigators and journalists everywhere ought to have been outraged at news over the weekend in the Wall Street Journal that appears to have caught a corporate investigator masquerading as a Journal reporter.

According to the story, the person trying to get information about investment strategy and caught on tape pretending to be someone he wasn’t was “Jean-Charles Brisard, a well-known corporate security and intelligence consultant who lives in Switzerland and France.”

Fake news we know about, but fake reporters? It’s more common than it should be. Free societies need a free press, and for a free press to work people have to be able to trust that a reporter is who he says he is.

Good investigators working for U.S. lawyers should not pretend to be someone they are not – whether the fake identity is a journalist or some other occupation. Whether or not it breaks a state or federal impersonation statute, it’s probably unethical under the rules of professional responsibility.

Consider Harvey Weinstein’s army of lawyers and their investigators. The evidence was presented in Ronan Farrow’s second New Yorker piece on Weinstein that hit the web last night. The story says that Weinstein, through lawyer David Boies, hired former Mossad agents from a company called Black Cube.

“Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her,” the story says.

It goes on to explain that one of the investigators used a real company as cover but that the company had been specially set up as an empty shell for this investigation. The name of the company was real, but its purpose was not (it was not an investment bank). Worse, the investigator used a fake name. Courts have said this can be OK for the agents of lawyers if done in conjunction with an intellectual property, civil rights or criminal-defense matter. This was none of these.

The journalism aspect of the Weinstein/Black Cube investigation is (if accurate) just as revolting, involving a freelance journalist who was passing what people said to him not to a news outlet but to Black Cube. This produces the same result as the Brisard case above. Why talk to a journalist if he a) May not be a journalist or b) Will be passing your material on directly to the person he’s asking you about?  The freelancer in question is unidentified and told Farrow he took no money from Black Cube or Weinstein. Volunteerism at its most inspiring.

And where were the lawyers in all of this unseemliness? Boies signed the contract with Black Cube, but said he neither selected the firm nor supervised it. “We should not have been contracting with and paying investigators that we did not select and direct,” Boies told Farrow. “At the time, it seemed a reasonable accommodation for a client, but it was not thought through, and that was my mistake. It was a mistake at the time.”

Alert to lawyers everywhere: it was a mistake “at the time” and it would be a mistake anytime. Lawyers are duty-bound to supervise all of their agents, lawyer and non-lawyer alike. When I give my standard Ethics for Investigators talk, ABA model rule 5.3(c)(1) comes right at the top, as in this excerpt from my recent CLE for the State bar of Arizona:

A lawyer is responsible for a non-lawyer’s conduct that violates the rules if the lawyer “orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”

“Ratification” can in some cases be interpreted as benign neglect. An initial warning “Just don’t break any rules” won’t suffice. The nightmare scenario is the famed Winnie the Pooh case in California, Stephen Schlesinger, Inc. v. The Walt Disney Company, 155 Cal.App.4th 736 (2007).

Schlesinger’s lawyers hired investigators and told them to be good. Then the investigators broke into Disney’s offices and stole documents, some of them privileged. The court not only suppressed the evidence, but dismissed the entire case. Part of the reasoning was that Schlesinger’s lawyers, after that initial instruction, did no supervising at all.

Black Cube may not have committed any crimes, but appears from the facts in the story to have gone over the ethical line in pretending to be people they were not. Boies (or any other lawyer in a similar position) should have tried to make sure they would do no such thing. What Black Cube did was everyday fare for Mossad, the CIA and MI6, but not for the agents of U.S. lawyers.

Not one, but two stories of criminals foiled by their own selfies have made the headlines this past week.  Tanya Peele, a 26-year-old Atlanta woman, is accused of setting up a fake business account at JP Morgan, then using that account to steal over $100,000.  When Peele went to withdraw the allegedly stolen cash, JP Morgan’s security cameras caught her on video.  Atlanta police matched the video to selfies she had posted on her Facebook page. 

Criminals Caught by Selfies.jpgMichigan bank robber Jules Bahler pled guilty this week to robbing a Bank of America branch.  Like Peele, Bahler was caught on one of the bank’s security cameras.  Police later identified him through Facebook posts of selfies he took while holding the same submachine gun he used to carry out the robbery. 

One would think that any criminal would want to keep a low profile both online and off.  But criminals are caught because of their online presence all the time (don’t believe me?  Just google “criminal” and “selfie”).  The most famous such case we’ve written about is that of Ross Ulbricht, the mastermind behind the illicit e-commerce site Silk Road.  Ulbricht posted his personal email address on a message board about Silk Road, which eventually led to his arrest.

Most of our clients are lawyers, so we have to be careful when dealing with social media.  Ethics rules prohibit us from reaching out to represented parties on social media or “friending” people under false pretenses to gain information that could be helpful to a client’s case.  In our experience, you often don’t need to be sneaky to find fantastic information. 

We were once able to track down a witness in a case because she posted a picture of herself at a bar on a publicly-viewable social media site.  In the background, we saw the name of the bar reflected in a mirror, tracked it down, and found out that she was a bartender there. 

In fact, we were also able to find the defendant in that case because he obsessively tweeted messages to attractive female talk show hosts.  His geocoded tweets showed that they were coming from California.  Until we found his Twitter account, we weren’t sure whether he was living in California or at his parents’ house in Oklahoma.  Mystery solved thanks to social media!

As part of our comprehensive pre-investigation briefing process, we always ask our clients to identify the target’s e-mail and social media handles.  We have found that HappyGuy73@email.com will also be HappyGuy73 on social media sites and message boards.  In one case, our subject, who was a high-level executive at a very large bank, was involved in running a mud wrestling ring in Nevada.  We found out because he had posted comments on a mud wrestling message board using a social media handle that our clients had given us.    

We have said time and time again that a Google search is never enough for a thorough investigation.  However, it can come in handy when using an individual’s online presence to track down information that they have chosen, however ill-advisedly, to reveal about themselves online.    

Each week we receive calls from people, many of them attorneys, asking us if we can obtain bank records as part of our asset searching.  The short answer is, though we probably can obtain Bank Vault.jpgthe records, we absolutely will not.  Obtaining bank records without a court order is illegal, unless they happen to be abandoned on public property.

Of course, there are some investigators that will tell you they can get bank records.  Just the other day an attorney told us that a North Carolina investigator got him bank records a few years ago with a social security number.  We explained that, in most cases, investigators gain access to account information by pretending to be the account holder, also known as pretexting.  Anyone who has dealt with a bank before knows that they tend to ask those seeking access to an account to verify they are the account holder by providing their social security number. 

Pretexting to get bank records is expressly illegal under The Gramm-Leach-Bliley Act, violations of which are punishable by hefty fines, up to 5 years in prison or both.  In addition to penalties under The Gramm-Leach-Bliley Act, think about how the bank records are going to be used.  If you’re engaged in litigation, consider the judge’s perspective.  Judges might not take kindly to those evading judgment, but you can also bet they don’t like when judgment-plaintiffs use unlawful means to obtain bank records and will readily exclude them from evidence.

An additional word of caution–if you ask your investigator to get bank records and they do so unlawfully, you, not just your investigator, could be on the Gramm-Leach-Bliley hook as well.  The law also prohibits hiring a third party to obtain bank records through false pretenses.  Further, attorneys should know that the rules of professional conduct bar an attorney from hiring someone to do something that the attorney himself is not permitted to do. 

We prefer to get financial information another way.  We comb the public record and conduct interviews that often produce results that are just as valuable to our clients as bank records.  Perhaps your debtor owns a $2 million vacation home in Miami or owns three companies with which you were unaware they were even affiliated.  We can and do find this kind of information regularly and our clients rest assured that they won’t face time in prison because their investigator broke the law. 

We recently read that one ofJuror Texting.jpg the jurors in the Jodi Arias murder trial had both tweeted at a famed criminal defense attorney and posted a comment about Arias having “Latina blood” on her Facebook page after the jury had convicted Arias but before it had sentenced her.  Stories like this one really highlight the importance of investigating jurors both before they are empaneled and throughout the trial, and social media makes it that much easier for attorneys to investigate a pool of potential jurors quickly.

However, attorneys and their investigators must be cautious when vetting jurors via their social media use.  As a guiding principle, attorneys and investigators should steer clear of using social media in any manner which would cause an attorney or investigator to “communicate” with the potential juror in some form. For example, in New York, you can’t “friend” or hire someone to “friend” a potential juror on Facebook in order to get access to their page.  If, however, they have a publicly available Facebook page, there is no problem accessing it to gather information. 

Things get a little murkier when dealing with LinkedIn.  Depending on the attorney or investigator’s LinkedIn settings, a juror may be alerted when the attorney/investigator views his or her LinkedIn profile.  New York bar association ethics opinions indicate that this alert to the juror, even if inadvertent, may be an improper communication on the part of the attorney/investigator.  At the very least, a juror’s impression of the case may be impacted by knowing that one side’s attorney investigated his or her background.  Before checking out a potential juror’s LinkedIn page, investigators and attorneys should make sure that their account is set to view profiles anonymously. 

Investigation of jurors shouldn’t necessarily stop once the jury is empaneled.  Lawyers might also want to monitor juror use of social media throughout the trial.  A juror’s commenting on the case in any form during its pendency, or communicating with those involved in the case, may constitute serious misconduct since most judges charge jurors not to discuss or make any comments about the case, including through social media. 

Attorneys and investigators should keep in mind that the same ethical constraints that apply to pre-trial juror investigation apply to monitoring a juror’s social media activity during the trial.  For instance, in light of the Arias Juror’s tweets, an attorney might want to keep up with a juror’s tweets throughout the trial.  In New York, viewing the juror’s publicly available tweets is okay, but an attorney or investigator should not subscribe to the juror’s Twitter feed.  Additionally, attorneys should familiarize themselves with their state’s rules of professional conduct.  For example, in New York, an attorney is under an obligation to disclose to the court any juror misconduct of which it becomes aware, which might include a juror’s improper use of social media.

Finally, social media will not reveal everything about jurors.  It’s unlikely that someone would brag on a Facebook page that he’d been convicted of a crime or sued by someone for breach of contract. Attorneys should be sure to also look into the criminal and litigation histories of potential jurors. These types of records are occasionally available online, and we can often find evidence of them in our proprietary databases, but on-site litigation searches are usually necessary to get a full litigation picture.

When does green not mean go? As toddlers we drive with our parents and learn that green means go, yellow means caution and red means stop. But then later on, in driving and in life, we learn that green means “go, as long as…”

Private Investigator Ethics.jpgIn New York, green means go but you still need to “yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited,” according to the statute. If you have a green arrow, you may “cautiously” enter the intersection.

What does any of this have to do with investigation? Plenty. When a client asks us to gather information, we assume until told otherwise that we have a red light as to picking up a phone and calling people. As we tell clients every week, there is always a chance that the person you are investigating will find out about it once you start calling around and asking questions about that person. The decision to take a chance that an investigation will surface belongs to the client.

Now suppose the client says, “Go ahead, green light to call people.” Does that mean the light stays green for the rest of the investigation or even the rest of that day? Not necessarily.

If we call Mr. Garcia to ask about Mr. Stein, we are on yellow and not green, whatever the client may think. That’s because if it turns out Mr. Garcia is represented by an attorney in this matter, the light turns red and we have to terminate the call so as not to violate the no-contact rule of professional ethics. The light is also yellow until you make sure to tell the person you are interviewing that you don’t want to find out any information that’s privileged or confidential. We wrote about this in Trial Ethics: A Template Can Save Your Life.

In what other situations would the light turn from green to red?

  1. The client changes his mind for any reason and tells us to stop calling.
  2. We find out that despite our best efforts and warnings that it could happen, our investigation has made its way back to Mr. Stein. We may then need to call the client to get permission to continue calling.
  3. The client instructs us to use the phone to obtain information we are not allowed to get, including bank accounts, phone records and medical records. The client is normally king, but nobody can prevail on us to violate a statute.

 

 

Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:

  • Recording could be illegal.

Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that both parties be aware. These include California, Florida, Illinois, Pennsylvania, Massachusetts, Connecticut and several more.

tape recorder.jpgWhat’s the problem with deciding you’re in a one-party state, calling up someone and letting the tape roll? Say the person you are calling has his phone forwarded to a two-party state. Even if you think you are calling someone down the street from you, how are you to know the phone isn’t ringing in Miami or L.A.?

  • Even if legal recording could be construed to be unethical for lawyers. Since we are lawyers, we pay the same close attention to the ethical rules as our clients do.

In a wonderful story in the current issue of the ABA’s Litigation News, (website here but current issue not on line yet), the ABA’s Lisa R. Hasday delivers a thorough  survey of the various ethical rules that govern phone recording. In short, it’s a minefield out there and any decision to tape is one that our clients would need to approve only after some serious reflection and research.

The one-party states fall into four categories.

  1. Surreptitious recording is not unethical  in Texas, Tennessee, North Carolina, Minnesota and a variety of other states. Of course, the same problem as avoiding a two-party state applies: a person sitting in Dallas calls a Houston number with the tape rolling, but the Houston number is answering the call in Orlando. Potential problem.
  2. Surreptitious recording is unethical except in certain circumstances in New York, Virginia, Colorado, Kentucky, Indiana and a few other states.
  3. Surreptitious recording is evaluated on a case-by-case basis in Arizona, Michigan and Wisconsin.
  4. Some states have no position on surreptitious recording. These include Georgia, New Jersey, Nevada, Louisiana and Arkansas, among others.

What’s the big deal courts make of taping when legislatures say it’s OK? It stems from ABA Model Rule of Professional Conduct 8.4(c) which has been adopted in most states, and says that lawyers commit professional misconduct if they “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

According to Hasday’s article, “courts have almost uniformly determined whether secret recording is misconduct based on additional facts surrounding the recording and not merely on the fact of the recording itself.”

The cases in which secret recording is most likely to be allowed involve the limited categories that have allowed attorneys to tell lies in the course of their duties: investigations into intellectual property infringement, housing discrimination, and for a lawyer’s self-preservation.

  • A recording could be legal and ethical, but is it admissible?

The decision to record a phone call is one that should be among the most heavily researched and carefully considered of the thousands of decisions a lawyer makes during the course of a matter. Even then, getting the recording admitted as evidence presents its own set of problems of authentication.

What kind of recorder is it? Is the operator competent? Were there any changes made to the recording? Are the speakers on the call identified? Did they speak without inducement?

Sometimes, making a recording of a phone may be a make-or-break decision in a case. But in our experience, recording has never been important enough to risk breaking the law, professional sanctions, and failure to get the material admitted.

 

A thought-provoking column in the Wall Street Journal here that argues in favor of routine changes of auditors got me thinking.

If we should change our auditors on the grounds that they get too close to us and are afraid to displease us for fear of losing our business, why shouldn’t the same thing apply to other professionals we hire over long periods? Say, financial advisors and even lawyers?

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The case for firing auditors is that even though companies hire them and are responsible for paying them, auditors are really there to deliver what can often be “bad news” to company management keen to suppress unpleasant facts from public view. When bad decisions get translated from company spreadsheets into annual reports, bonuses get cut and executives get fired.

So instead of giving independent advice, auditors work for the same company for so long that they end up being “co-dependent,” says the Journal’s Jason Zweig.

Would that ever affect a lawyer or a financial advisor? At least with financial advisors, there are independent benchmarks that can compare your investment returns to those of similarly placed individuals. You can see whether or not your annual fee helps you beat an index, and you can shop around to see if your advisor’s fee is excessive.

What about lawyers? They are bound to a code of ethics, but so are accountants. Lawyers can’t just ignore wrongdoing, but accountants too are supposed to blow the whistle on that kind of thing. The problem arises in life’s hundreds of shades of gray, between best possible behavior and reportable criminal activity.

Many a lawyer reading this can easily recall putting down the phone after an uncomfortable call with a major client who has just instructed that lawyer to do something that gives the lawyer pause. The lawyer might think to himself: “Is it ethical to do this?” but then go ahead and do it anyway. If it just passes the smell test, how many lawyers tell their clients they are treading a very fine line? We hope some, but does yours?

Changing auditors can be a real pain, which is why companies don’t like to do it. Barriers to entry can be high because there are only four big firms to service the world’s largest companies, and because it can take a new audit team a long time to get up to speed on a complex set of accounts.

That can be true of personal investment portfolios and legal issues, but often a lawyer is not tasked with taking care of every aspect of a company’s or individual’s set of legal issues.

So if you don’t feel like firing your longtime attorney or other professional, at least do what you might with your trusted physician. Get the occasional second opinion.