Recently in Ethics and Professional Responsibility Category

August 21, 2012

Lessons Learned from Penn State--Part II: Avoid Potential Conflicts Early, Know Who Your Client Is, and Make Sure Others Know It Too

1012552_business_world_4.jpgThe Penn State scandal was, in many ways, the perfect storm that any organization dreads. What could organization counsel have done differently as the scandal unfolded? In this installment we focus on avoiding conflicts early, knowing who your client is, and making sure others in the organization know too.

The Freeh report alleged that the University's general counsel, Cynthia Baldwin, advised the Board of Trustees against conducting an internal investigation and accompanied the two University administrators who were indicted for failing to report what they knew about Jerry Sandusky's conduct, Vice President Gary Schultz and Athletic Director Tim Curley, to the grand jury. The report also alleges that both Schultz and Curley believed that Baldwin represented them personally during their grand jury testimony, and that Baldwin failed to clarify that she represented only the University.

Counsel for any organization has a legal and ethical duty to make clear to "constituents" of the organization--directors, officers, employees, members, shareholders--that he or she represents only the organization, and not the constituent, when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituent. In Pennsylvania, this duty is set forth at Rule 1.13 of the Rules of Professional Conduct. Organization counsel needs to make this distinction clear to all constituents early in the investigation.

If you think about it, most people in the situation that Schultz and Curley found themselves in would assume that the organization's counsel represented both the organization and them--unlike lawyers, most are not familiar with how conflicts of interest in such situations may arise, and don't think these things through. It is incumbent upon organization counsel to explain this distinction.

This post continues after the jump.

Continue reading "Lessons Learned from Penn State--Part II: Avoid Potential Conflicts Early, Know Who Your Client Is, and Make Sure Others Know It Too" »

August 3, 2012

DON'T BE THE NEXT PENN STATE -- LESSONS LEARNED FOR IN-HOUSE COUNSEL RESPONDING TO CRIMINAL INVESTIGATIONS

531240_football.jpgThe former General Counsel of Penn State University, Cynthia Baldwin, has recently become the subject of intense criticism based upon the now public findings of the 267-page report prepared by former FBI Director Louis Freeh. In his report, Mr. Freeh described Ms. Baldwin's representation of the University as "seriously deficient." Mr. Freeh and other critics have cited the following examples of Ms. Baldwin's allegedly deficient performance:

(1) Two members of Penn State's Board of Trustees believed that Ms. Baldwin personally represented each of them when she accompanied them to testify before the criminal grand jury and failed to clarify that she only represented the University. (The grand jury ultimately returned an indictment of both of those Board members.)

(2) Ms. Baldwin failed to retain experienced criminal counsel to represent the University in the criminal investigation and advised the Board of Trustees against conducting an internal investigation.

(3) Ms. Baldwin failed to adequately communicate to the Board the nature and extent of the Attorney General's criminal investigation and the potential civil liability that could result from the criminal allegations.

The headline grabbing Penn State scandal provides an excellent opportunity to remind organizations and their in-house counsel of the importance of recognizing the tremendous risks associated with criminal investigations and how to best mitigate those risks. In-house counsel can avoid catastrophic damage to their organizations by remaining cognizant of a few basic principles when handling such criminal investigations.

This post is the first installment of a three-part series that will outline best practices for in-house counsel faced with criminal investigations that relate in any way to the organization's officers, directors or the organization as a whole. Check the blog next week for the second installment in the series, which will address the potential conflicts of interest that can arise between organizations and board members in criminal investigations and how in-house counsel can avoid such conflicts.

May 17, 2012

'TAINT ALLOWED: USE OF SOCIAL MEDIA AS PART OF A CRIMINAL DEFENSE STRATEGY

1369220_blue_website_buttons_2_1.jpgThe George Zimmerman defense team recently broke new ground in the field of criminal defense by using social media as a part of its strategy in defending Zimmerman against murder charges in Seminole County, Florida.

Zimmerman, a White and Hispanic man, is accused of murdering Trayvon Martin, an African American teenager, who was unarmed at the time Zimmerman shot him. Zimmerman claims that Mr. Martin attacked him first and has invoked Florida's controversial "Stand Your Ground" law in defense of the murder charge.

Zimmerman's defense team recently started a facebook page entitled "George Zimmerman Legal Case" at http://www.facebook.com/#!/GeorgeZimmermanLegalCase and a twitter feed under the name "Zimmerman Legal Case" at https://twitter.com/#!/GZlegalCase, in addition to a website to solicit and collect donations for Zimmerman's legal defense fund at http://www.gzlegalcase.com. Zimmerman's lawyers have stated that they created the social media sites to "provide a voice for Mr. Zimmerman", "assist in focusing the [public] conversation" about the case and "distinguish (when appropriate) fact from [opinion, speculation, rumor and malicious misinformation]." While these may be laudable goals from a criminal defense standpoint, the professional standards governing the conduct of attorneys do not necessarily endorse the use of such media tactics in criminal cases.

A criminal defense lawyer's use of social media to address a client's case implicates Rule DR 7-107 of the ABA Model Rules of Professional Responsibility ("ABA Model Rule DR 7-107"), which provides:

A lawyer of law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.

(2) The possibility of a plea of guilty to the offense charged or to a lesser offense.

(3) The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement.

(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.

(5) The identity, testimony, or credibility of a prospective witness.

(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.

(Continue Reading to Next Jump)

Continue reading "'TAINT ALLOWED: USE OF SOCIAL MEDIA AS PART OF A CRIMINAL DEFENSE STRATEGY" »

April 29, 2012

DOES MISSOURI v. FRYE EXTEND TO IMMUNITY OFFERS?

Elmer "Al" Bowman, a former staffer with the PA Senate Republican Caucus who pled guilty in the "Computergate" case, has sued his criminal defense lawyers for malpractice, breach of fiduciary duty, and breach of contract. Bowman claims his lawyers failed to tell him that prosecutors had offered immunity in return for his cooperation in the investigation, and as a result he was charged with 48 counts. Whether or not Bowman's claims have any merit, the U.S. Supreme Court's March 21 decision in Missouri v. Frye also shows the perils of plea practice and raises some interesting questions in light of the Bowman suit.

251732_agreement__signing.jpgIn Frye the Court held that a lawyer is ineffective when he or she fails to communicate to the client a formal plea offer from the prosecution that is favorable. Does this ruling extend to offers of immunity? While not a "plea offer," an immunity offer is certainly "favorable" to the defendant, and failure to disclose it to a client could have the same adverse consequences.

The takeaway from both Frye and the Bowman complaint is the need to document in writing all offers from the government, whether of immunity or plea deals. Otherwise you subject your law firm to the risk of being sued, and may face an ineffectiveness claim as well.