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).

Artificial intelligence doesn’t equal artificial perfection. I have argued for a while now both on this blog and in a forthcoming law review article here that lawyers (and the investigators who work for them) have little to fear and much to gain as artificial intelligence gets smarter.

Computers may be able to do a lot more than they used to, but there is so much more information for them to sort through that humans will long be required to pick through the results just as they are now. Right now, we have no quick way to word-search the billions of hours of YouTube videos and podcasts, but that time is coming soon.

The key point is that some AI programs will work better than others, but even the best ones will make mistakes or will only get us so far.

So argues British math professor Hannah Fry in a new book previewed in her recent essay in The Wall Street Journal, here. Fry argues that instead of having blind faith in algorithms and artificial intelligence, the best applications are the ones that we admit work somewhat well but are not perfect, and that require collaboration with human beings.

That’s collaboration, not simply implementation. Who has not been infuriated at the hands of some company, only to complain and be told, “that’s what the computer’s telling me.”

The fault may be less with the computer program than with the dumb company that doesn’t empower its people to work with and override computers that make mistakes at the expense of their customers.

Fry writes that some algorithms do great things – diagnose cancer, catch serial killers and avoid plane crashes. But, beware the modern snake-oil salesman:

Despite a lack of scientific evidence to support such claims, companies are selling algorithms to police forces and governments that can supposedly ‘predict’ whether someone is a terrorist, or a pedophile based on his or her facial characteristics alone. Others insist their algorithms can suggest a change to a single line of a screenplay that will make the movie more profitable at the box office. Matchmaking services insist their algorithm will locate your one true love.

As importantly for lawyers worried about losing their jobs, think about the successful AI applications above. Are we worried that oncologists, homicide detectives and air traffic controllers are endangered occupations? Until there is a cure for cancer, we are not.

We just think these people will be able to do their jobs better with the help of AI.

There is a huge branch of the “fake news” business that gets no attention at all: the fake news consumed each day by corporate America that has nothing to do with politics, but everything to do with business – the bulk of the $18 trillion U.S. economy.Fake news investigation

We’ve been sorting through this kind of thing for years — It’s often why our clients hire us. I’ve also been talking on the subject recently in a speech called Fighting Fake News (see an excerpt here).

The everyday expression for figuring out what’s fake and what isn’t is: Due diligence. Good businesses are good at it, bad ones aren’t.

Six months ago, the term “fake news” meant false political information that the originator or spreader of the “news” knew was false. It’s hardly a new phenomenon, as the Wall Street Journal helpfully pointed out this week with Vladimir Putin’s Political Meddling Revives Old KGB Tactics.

By now, the term has been expanded to mean anything that’s partly or wholly untrue in the eye of the beholder, whether or not it was intentionally misstated.

What is corporate fake news? The massive amount of company, financial and personal information reported but never checked. Plenty of what’s put out is accurate, but a lot isn’t. Ask any public relations professional you know who will give you a frank appraisal of his business. If you issue a news release that’s well written, with nice quotes from your client, what happens to it?

In many cases, it will be printed word for word as a news story. There will be a news byline over it, but the body of the release will be all but unchanged. The “story” will be on dozens of television news department websites, in local newspapers, and then reproduced again based on that “reporting.”

Do “quality journalists” do this? Not that way.

Off the Beaten Track

But consider a company that is not sexy and attractive to Wall Street bankers or a lot of investors – perhaps a mid-sized printing company in Ohio or a private auto-parts manufacturer in Indiana. If that company issues a dull news release, the New York Times or the Chicago Tribune will almost certainly devote zero hours to verifying what’s in that news release. They may not report on the company at all.

If the company is public, you may get a couple of lines with earnings, usually in the context of “beating” or “missing” what analysts had predicted the earnings would be. Good luck relying on that. You would need to ask, are those the analysts who missed the dot-com bubble, the housing crisis, last year’s plunge in oil prices?

What are you to do then, when you are considering hiring someone who worked at one of these thinly covered companies? Or if you may want to enter into a long-term contract with one of them, or perhaps acquire one? Of what use will the “news” about the company be when you start looking?

There is another dimension to the problem aside from what the company says about itself. Company valuation is always relative to the health of its competitors, and they too have not only the same interest in promoting themselves, but also in reflecting negative news on their competitors.

If there is good news about fake news in politics today, it’s that people have heard a lot about made-up “news” sites, and reputable news outlets have devoted resources to reporting on them. Whatever your political viewpoint, there are plenty of places to go that will scrutinize the other side’s speeches and writings.

But where do you go if you need to scrutinize a thinly-traded or private company in refrigerated freight? Printing? A company that imports socks from Italy or manganese from Africa?

If you care enough, if the issue is valuable to you, you do your own research. Just as in the political realm, you read widely from a variety of sources and make your own decision.

Gray Matter

The problem with any kind of fake news detection comes when what is said is partially true. Neither black nor white, but gray. Evaluating gray takes the kind of gray matter a computer does not offer.

In politics, we see this all the time. President Obama’s promise “If you like your doctor, you can keep your doctor” has been given evolving degrees of truthfulness ratings since the time he said it. Many people have been able to keep their doctors; many have not (absent paying several times what they used to pay).

In business, things are almost always a shade of gray. During due diligence, an interview with a person who has posted an enthusiastic recommendation of a person on LinkedIn can reveal notes of hesitancy or qualification. You can ask questions that relate to matters not covered in the recommendation.

If a company has posted wonderful earnings, in depth analysis of the figures can show you that “wonderful” can mean “better than expected, but not sustainable because the company keeps selling assets to make its numbers.” Interviews can tell you it’s a lousy place to work, which could mean something if it’s a service business and may reflect poorly on the CEO and board.

As we tell our clients all the time, if you are about to hand the keys to a $30 million business to someone, doesn’t it make sense to make a few calls about that person to people not listed as references, and to see if there are jobs not listed on the person’s resume you’re holding?

In the world of due diligence, the most damaging fake news can come from omission — the information that is never written. Our challenge is to find it.

 

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.

We pretty regularly find ourselves blogging about small business owners that draw people into scams.  We’ve seen the would-be movie executive, the sweet-talking investment solicitor, the landscaper and the produce company owner. Too often, we find that defrauded consumers and investors could have avoided their losses by doing some basic due diligence.  Sometimes the diligeCollapsed Roof.jpgnce can be as simple as a Google search, while other times it might pay to get an investigator involved.

Not surprisingly, we came across two stories this week and now add a roofing contractor and appliance repair store to our list of alleged (and some convicted) fraudsters.

Michigan roofer Kenneth Bird’s scheme was nothing out of the ordinary.  According to media reports, he took deposits for roofing work from potential clients and then never showed up to actually do the work.  He pleaded guilty to defrauding one couple of $6,125 for a $12, 250 roofing job he never completed at their home.  Colorado appliance repair store, AAAA TV Electronics Vacuum Appliance, allegedly over-charged customers for parts that they did not need, did not receive and some that did not even exist.

So how do you avoid losing money to these kinds of businesses?  In both of these cases, a quick Google search might have done the trick.  The Better Business Bureau had received numerous complaints about each of these companies, a tally of which was readily available on the internet.  In addition, a “Ripoff Report” was posted online about the appliance store and both businesses had some fairly negative reviews on yelp.com.  We tend to be very cautious when relying on internet information.  Most of the time, you don’t know who is behind a Yelp review, Ripoff Report or Better Business Bureau complaint, and not everything you read online is true.  That said, when there are a large number of complaints and/or troublesome reviews online about one company, it should at least give you pause before choosing them for your vacuum repair or roofing needs.

Beyond basic Google searching, it can pay to hire an investigator to go further than what’s available online.  We’ve blogged here about why Google should not be a substitute for thinking and we know from experience that most public records are not available on the internet.  As investigators, we use a whole range of ethical techniques to gather balanced information about people and companies.  This puts our clients in the position of feeling protected against the many fraudsters and scam artists that are out there.

Due diligence is all about following up on red flags, but if you don’t find them, there’s nothing on which to follow up.

Thus, our tireless refrain: turn over every piece of public record information you can about a person, and don’t leave it to others.finra DUE DILIGENCE.jpg

We were reminded of this by the story this weekend in the Wall Street Journal, which found that the brokerage industry regulator, FINRA, leaves a lot of red flags concerning members off its BrokerCheck website. While it’s laudable that FINRA recommends that investors check to see if brokers have ever been subjected to disciplinary action, that check is of limited use if bankruptcies, state-level actions and litigation are left off of BrokerCheck.

We have been writing for years about the need to do thorough searches when conducting due diligence on anyone – pre-employment, pre-deal, or during litigation. In Avoiding Due Diligence Failure: Following Up on Red Flags, we dealt with the problem of the Semmelweis reflex in due diligence.

This is when you want to confirm that someone who is supposed to be squeaky clean really is, and so you write off what looks like a problem in his past to database error. You can also see confirmation bias, in which people rely too heavily on bad or incomplete evidence that leads them to their desired conclusion.

But, before you even get to battling Semmelweis and bias in mishandling red flags, you have to see the flags in the first place. For that, we provide a non-exhaustive checklist to our clients of the kinds of sources we will check. We wrote about it here.  

It’s critically important to note that these sources are not checked on line much of the time, but on site. That’s because a lot of information at the county or state level is not available on the internet. You need a good network of on-site retrievers to go pull it at the courthouse and send it back to you. You then need to double check to make sure your retriever didn’t miss anything. While not everything is on line, abstracts of some matters may be. When you get your pile of documents back, it’s always good to make sure that everything you found on line is represented in the results.

 

According to the Sacramento Bee, a would-be movie studio executive, Carissa Carpenter, pleaded not guilty last week to defrauding investors of at least $5 million during her failed 17-year attempt at creating a movie studio in Northern California.  Over the 17-year period, she shifted Movie Reels.jpgthe location of her planned studio several times.  Her last purported studio location was in Dixon, California where she proposed building a $2.8 billion complex that was supposed to have opened in October 2015.  On October 30, 2014, Carpenter was indicted by a federal grand jury, charging that she spent 17-years making a string of studio pitches in a fraudulent attempt to raise money from investors and spend it on her own extravagant lifestyle. 

We always come across these stories in which investors are bilked out of huge sums of money.  The first question that pops into our heads when we read these stories is, “well, did anyone run a background check on the fraudster before forking over their life savings?”  Most times, it appears the answer is probably no, and we’ve blogged about it over and over (here, here and here).  This case seems to be no different.   We ran a quick litigation search on Carpenter in one of our commercial databases and came up with 6 cases against a Carissa Carpenter in California.  Because we didn’t pull the records, we can’t be sure that all of those cases are against the movie studio Carissa Carpenter.  But we know that at least two of the cases are, one of which is for contractual fraud, since one of her companies is also listed as a defendant.   Carissa Carpenter isn’t an exceedingly common name, so there is a decent chance the other four cases may be suits against movie studio Carpenter as well. 

The presence of litigation against a person doesn’t necessarily mean that you should steer clear of investing with them, but it should give you pause and cause you to look into the facts surrounding the lawsuits.  Investors usually come to us too late in the game.  They hire us after they’ve already been defrauded by someone, and they are looking to grab any remaining assets.  Too often, when performing these after-the-fact asset searches, we find that the person that defrauded our client has a long history of being accused of fraud, amongst other red flags.  If our clients had asked us to do a little due diligence before investing money, they probably would not have lost it in the first place. 

We recently blogged here about surprising facts we’d found when doing diligence on expert witnesses.  We’ve looked into so many people and companies that we’re rarely taken aback when we find that someone left something off of a resume or lied about a degree.  But sometimes we come across a news story that manages to catch us a little by surprise, like this recent news article we read abouViolin on a Pedestal.jpgt the founder of the Suzuki violin method which has been studied by millions.  

According to several news articles, Shinichi Suzuki, the now deceased music teacher behind the world-renowned Suzuki method of violin is “the biggest fraud in musical history” for fabricating his training and background in violin.    

According to the articles, Suzuki never had any proper violin training, despite his claims that he studied at the Berlin Conservatory under a renowned teacher.   The articles state that Suzuki was rejected from the Berlin Conservatory in 1923, was essentially self-taught and never played in any orchestra. 

The revelation that Suzuki may not have had the musical background he touted does not necessarily undermine the efficacy of his teaching method, but it does highlight the fact that even well-reputed people fabricate or omit things in their background.  We recall in 2007 that the former Dean of Admissions at M.I.T. was forced to resign when the school discovered that she’d made up her education credentials. 

We should also note that, while it is important to do thorough background checks, it is equally important to pay attention to the sources of background information.  With Suzuki, the source of the negative information is Mark O’Connor, a violinist with a competing violin teaching method.  The Suzuki empire (Suzuki himself is now deceased) is fighting back and states that they “can only speculate as to why Mr. O’Connor, who publishes and sells his own approach to violin playing, is so eager to discredit Shinichi Suzuki and why he has chosen to manipulate media at this time.”  They also claim that Suzuki did not fabricate his credentials, and put forth some evidence to support this claim. 

When we do a background check, particularly a background check that includes interviews, we always make sure to speak with a balanced group of people because we are aware of the potential for bias.  If we speak to a negative reference like a litigation opponent, we will also to speak with a probable positive reference, such as someone that successfully did business alongside the person we are researching for many years.

According to several news reports, Walter Reinhardt of North Carolina, pled guilty to 40 charges of securities fraud, common law forgery and common law uttering in North Carolina yesterday.  From 2005 to 2009, Reinhardt solicited fraudulent investments for businesses he claimed were owned by someone in Richmond, Virginia.  He targeted teachers and sweet talked his way into faculty meetings at schools to make hWalter Reinhardt Investment Fraudis pitch.  Authorities believe he may have bilked investors out of a total of $3 million of their planned retirement income.

When we’re talking about investing large sums of retirement money, we always advocate hiring an investigator to look into the background of the person investing the money.  This case is an excellent example as to why.  We previously blogged about Gary Mares, the New Mexico landscaper who took 50% payment for landscaping work up front and then disappeared, never to actually do the work.  In that case, we told you that a Google search of “Gary Mares” produced a trail of bad press, and would have dissuaded people from hiring Mares in the first place. 

In this case, a Google search would not have been enough.  But a good investigator would have known to check the FINRA records on Reinhardt.  One look at FINRA’s records would have shown that, in 2001, Reinhardt was barred from selling securities by the National Association of Securities Dealers for engaging in private securities transactions and for forging the signatures of a public customer both without authorization.  A phone call to the North Carolina Securities Division would have also revealed that Reinhardt was not licensed to sell securities in the state.

We would certainly be hesitant to invest our retirement funds with someone that was barred from selling securities and we’d guess that Reinhardt’s clients would have been too.  This is yet another cautionary tale about doing your research before handing your money over to a potential fraudster.