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WHAT
CIVIL ATTORNEYS NEED TO KNOW ABOUT CRIMINAL LAW
By: Mark Mermelstein and Charlotte Decker+
Some
careers are known to be risky, but the practice of law isn’t
typically one of them. Yet, lawyers
are exposed daily to the scary risk of criminal consequences for the
practice of law. Terry Christensen,
a respected member of the California
bar, hired a private investigator, Anthony Pellicano, for a client’s divorce
case. Christensen now finds himself charged in a criminal indictment, which
alleges that the investigator conducted illegal wiretaps and Christensen
used information gleaned from the wiretaps to secure a litigation
advantage.[i] Christensen faces two counts of
conspiracy and wiretapping.[ii] Whatever the outcome of the case, Christensen – a civil attorney
litigating a civil case – has been charged with crimes, and the fact
that he may be vindicated at trial will do little to remedy the damage to
his reputation. Unfortunately, situations like Christensen’s are not
unique. More typically, civil litigators,
whose very role some consider to be “obstructionist,” are
charged with obstruction of justice rather than conspiracy. This is so because under current law, the
line between laudable, ethically mandated, zealous advocacy and criminal
obstruction of justice is not always clearly demarcated.
Consider
a scenario in which a lawsuit challenges a drug manufacturer’s
advance knowledge of risks posed by one of the company’s drugs. A subpoena calls for production of all
studies conducted by the company regarding the drug. The manufacturer’s lawyer knows the
company created an affiliate company expressly to study the effects of the
drug, and that the affiliate, but not the named party defendant, is in
possession of such a study. Should
the lawyer obtain a copy of the study from the affiliate and produce
it? Alternatively, should the lawyer
direct an associate to send a letter to opposing counsel indicating that
the manufacturer possesses no documents responsive to the subpoena request?
Or
consider the situation in which a lawyer is defending a corporate client on
civil fraud allegations. The opposing party has issued a deposition
subpoena to an employee of the corporate client. The corporation’s lawyer
doesn’t realistically think the employee has any criminal fraud
exposure, and therefore concludes that the employee does not need
representation separate from corporate counsel. Later, however, a question is posed in
the employee's deposition, the answer to which may be harmful to the
company. Should the corporate
attorney counsel the employee to invoke his Fifth Amendment right to remain
silent and not answer the question, or even advise the employee of the
existence of that right?
Suppose
another attorney is hired by the corporation’s lawyer to represent the
employee and to advise him whether to assert his Fifth Amendment right in
the deposition. The new
lawyer’s fees are paid by the corporate client. The new lawyer recognizes that if the
corporation’s lawyer is pleased with his performance, further referrals
of business will likely follow. The
witness’ lawyer also recognizes that his client's testimony will be
harmful to the corporation’s legal interest but his client is
unlikely to suffer criminal prosecution.
Should the new lawyer advise his client to assert his Fifth
Amendment right and decline to answer?
As
these scenarios and many others quickly illustrate, even lawyers whose
practice is limited entirely to civil litigation may find themselves
enmeshed in situations calling for a nuanced understanding of criminal
law. The legal ethics rules in many
states are silent or vague on a number of topics, including dilemmas posed
by these scenarios.[iii] Compounding the problem is the fact that
all attorneys are ethically required
to zealously represent their clients.[iv] As a result, an attorney may, in some
instances, be ethically bound to approach the line between ethical and
unethical conduct. Because most
states' ethical codes are silent as to the location of that line, or define
the line by reference to the criminal code, the de facto or de jure ethical
line is drawn when the attorney's conduct becomes criminal.[v] This may mean that ethically representing
a client requires attorneys to strive for the best result for their client's
using all methods short of committing a crime.[vi]
A
conservative approach advocated by some commentators is to never
communicate to a non-client witness anything that could be perceived as
legal advice.[vii] That approach, however, leaves unresolved
many questions for the corporate attorney like the one in the second scenario, defending a
corporate client and pondering how to counsel a corporate employee witness,
unless he or she is prepared to
recommend that the corporate client hire an attorney for every potential
employee-witness in the lawsuit. In
addition, adopting a conservative approach to challenging ethical questions
may have the result that the lawyer’s representation falls below the
standards of zealous advocacy. Indeed,
in the context of criminalizing attorney conduct, Justice Antonin Scalia
has warned of the dangers of chilling legitimate
advocacy.[viii]
Nuts & Bolts
of Obstruction of Justice Law
Criminal
practitioners refer to “obstruction of justice” as a collective
term for a series of federal crimes.
Conduct by a lawyer may constitute obstruction of justice in
violation of Title 18 United States Code Sections 1503 or 1512, if the
following elements are present: 1) the existence of a “pending
proceeding,” 2) the defendant must know or have notice of the
proceeding; 3) the defendant must endeavor to obstruct justice; 4) the
defendant must act corruptly with the specific intent to obstruct or
interfere with the proceeding; and 5) the defendant's conduct must have the
natural and probable effect of interfering with the proceeding.[ix]
No
specific methods of obstruction are enumerated in the statutes. This means that any actions can constitute obstruction if done with the
requisite intent.[x] Indeed, the statutes cover conduct that
is otherwise entirely legal. For
example, the First Circuit upheld a conviction of an attorney who advised
his client to invoke his Fifth Amendment right.[xi] In so doing, that court soundly rejected
the notion that, for attorneys, a corrupt motive may not be found in the
absence of an independently illegal act.[xii] As a result, no act, not even traditional
litigation tasks are excluded from the realm of prosecutable conduct.
When
lawyers retained to defend a client in a civil lawsuit who respond to a
document subpoena, talk to a prospective witness, or advise their client, these
actions presuppose a pending proceeding, and the lawyers' knowledge of the
proceeding. Because the lawyer's
goal is typically, at least in part, to impede his adversary's search for
the truth, and because limiting access to the truth can be seen as
obstructing justice, almost by definition a lawyer’s conduct may
approach obstruction of
justice. The critical
question is whether the conduct was committed with the requisite intent. Accordingly, there is no lawyerly
conduct, no matter how "traditional," that is, ab initio, clearly
exempt from the purview of criminal obstruction of justice law.
Given
the fine line between zealous advocacy and obstruction of justice,
attorneys facing criminal prosecution have advocated for a special privilege
due to the unique nature of their ethical duty.[xiii] Courts have resoundingly rejected such
arguments, holding that as long as the attorney acts with the requisite
intent, he or she can be prosecuted for obstruction of justice.[xiv] Far from recognizing a privilege, some
courts have held attorneys to an even higher standard than other parties in
obstruction of justice proceedings, explaining that attorneys possess a
"heightened awareness" of the law and have a "sophisticated
understanding of the type of conduct that constitutes criminal violations
of the law . . . more so than an ordinary individual."[xv]
Congress
recently passed a statute containing a defense uniquely available to
attorneys. Under the statute,
attorneys do not commit a crime when they “provid[e] lawful, bona
fide, legal representation services in connection with or anticipation of
an official proceeding.”[xvi] However, this defense suffers from the
same basic problem as the criminalizing statutes – it does not define
or enumerate any specific legal representation services. This defense requires the legal services
to be “lawful,” that is, done without corrupt intent. Accordingly, if a legal service is done
with corrupt intent, it cannot be a “lawful legal representation
service.” As a result, this
defense merely returns the focus of the inquiry to whether the act was done
with the requisite intent.
To
understand obstruction of justice as applied to the legal profession, it is
crucial to understand that the whole case comes down to the intent element:
if the lawyer was acting “corruptly,”
while practicing law, he or she is guilty; if the lawyer was acting in good
faith, he or she is not. Looking to
how courts have defined “corruptly,” neither the Ninth
Circuit's definition: “the specific intent to obstruct justice”[xvii]
nor the Fifth Circuit's definition: “acting with an improper motive”[xviii]
sheds much light on what conduct falls within and without the confines of
the law. For lawyers, the scariest
holding was the one in which the Seventh Circuit stated that the fact that
an attorney's actions were “motivated by his attempt to protect his
client from prosecution” was of no
significance because those same actions demonstrate that the
defendant-lawyer “clearly intended and corruptly endeavored to obstruct
justice.”[xix] Clearly, the definition of the intent
element leaves something to be desired.
A
review of some fact-specific cases sheds a little more light on the
definition.
In
United States v. Cintolo, during
a grand jury investigation an attorney advised his client to invoke his
Fifth Amendment right and suffer contempt charges even though he had
immunity.[xx] The First Circuit found that the
attorney’s advice was motivated not by a desire to protect his
client, but for the purpose of shielding other individuals – those
who would be inculpated by the client's testimony.[xxi] As a result, the First Circuit affirmed
the finding that the attorney-defendant had acted corruptly and was
therefore guilty of obstructing justice.[xxii]
In
United States v. Cioffi, an attorney
advised a non-client witness to invoke his Fifth Amendment right in an SEC
investigation and suggested that some benefit – forgiveness of a loan
that a third party had made to the witness or avoidance of harm to the
witness's wife – might flow to the witness if he did so.[xxiii] Even though the evidence could be
interpreted as the attorney inquiring of the status of the cancer-stricken
wife of the witness, rather than threatening the wife's demise, the Second
Circuit not only affirmed the attorney-defendant's conviction for
obstruction of justice, but also rejected the notion that advising a non-client
witness to invoke his Fifth Amendment right is protected conduct.[xxiv]
In
contrast, the Fifth Circuit perceived no impropriety in an attorney’s
contacting counsel for a co-defendant to impress upon him the danger of his
client’s testifying and to remind the attorney of his client's Fifth
Amendment right to remain silent.[xxv] Also, the Supreme Court has firmly
established that in appropriate circumstances it is permissible for an
attorney to offer such advice to his client, even if the advice to invoke
would inevitably lead to less information being supplied, and consequently,
justice being obstructed.[xxvi]
In
United States v. Cueto, the
Seventh Circuit affirmed the obstruction of justice conviction of an
attorney who, during a pending covert federal investigation, obtained a
state court injunction barring an undercover federal investigator from
interfering with his client's business operation and requested that the State
Attorney's Office criminally prosecute this agent.[xxvii] Although this conduct is ostensibly legal
(independent of obstruction of justice) and motivated, at least in part, by
a desire to protect his client, the Seventh Circuit upheld the attorney's
conviction because the attorney, in addition to his role as advocate for
his client, had also entered into a business relationship with his client
and personally benefited from his client's continued business operations.[xxviii] In other words, the court was satisfied
that Cueto's actions were "corrupt" because he personally
benefited from them as opposed to solely his client benefiting.
The
common theme derived from these cases is that courts appear to find corruption
where there is a departure from the traditional role of a lawyer advising a
client for the benefit of only that client.
Cintolo was protecting a third party; Cioffi was giving legal advice
to a non-client, and Cueto was protecting himself. Courts first seem to distinguish between
an attorney acting in the best interests of a client and an attorney acting
in someone else's interests and then reason that if an attorney is acting
in someone else's interests, he or she must not be acting in the best
interests of the attorney's client and is therefore acting corruptly.
There
are other significant factors in determining whether a situation poses a
risk of an obstruction of justice charge for a lawyer.
First,
a lawyer is not shielded from obstruction of justice liability merely
because the proceeding in which a corrupt act takes place is civil or
because the government is not a party to the proceeding.[xxix] A lawyer who destroys documents
responsive to a subpoena issued in a civil lawsuit is clearly in violation
of obstruction statutes.
Moreover,
while much ink has been spilled regarding the type and duration of the
pending proceeding that is required as an element of a federal prosecution
for attorney obstruction of justice,[xxx]
it is clear that a post complaint prejudgment civil lawsuit is a
"pending processing."[xxxi]
Second,
although the violation of federal criminal obstruction of justice law, require
an endeavor to obstruct a federal proceeding, a lawyer engaged
in a state litigation can still be liable for federal obstruction of
justice if his or her conduct has the collateral effect of undermining, for
example, a federal investigation.[xxxii]
By contrast, obstructing a California state litigation that has no bearing on
any federal investigation[xxxiii] would be prosecutable, if at all, under California state
law. California state obstruction of justice
law is much narrower than Federal law.
California
law makes criminal only certain discrete acts such as subornation of
perjury,[xxxiv] solicitation
of perjury,[xxxv] and
obstructing a police officer during the performance of his official duties.[xxxvi]
In California there is no crime defined as
general obstruction of justice;
however, conspiracy to obstruct justice is a crime under California law.[xxxvii]
Third,
it is not necessary that the lawyer's act actually obstruct justice. Even if, for example, the lawyer who
destroys a subpoenaed document delivers another copy of the document to the
propounder of the document subpoena, a prosecution for obstruction of
justice could still lie. That is
because the crime punishes mere “endeavors” to obstruct
justice.[xxxviii] An “endeavor” encompasses a
broader range of action and includes any effort that has the natural and
probable effect of interfering with justice.[xxxix]
Fourth,
a lawyer who engages in “misleading conduct” may be found to
obstruct justice.[xl] Federal law provides that misleading
conduct toward a possible witness to “influence, delay or prevent”
testimony or to withhold, alter or destroy a “record, document or
other object” is a felony.
Misleading conduct includes 1) omitting information to cause a part
of a statement to be misleading, 2) creating a false impression, or 3) creating
a false document.[xli]
Lastly,
it is important to bear in mind that the government can secure an
indictment of a lawyer without alleging that the lawyer was not providing
legal services.[xlii] Even if the lawyer was in fact providing
lawful legal services, that fact alone cannot achieve dismissal of an
indictment. Accordingly, even an
attorney who is vindicated at trial has nonetheless suffered the stigma of
public indictment.
Applying the Law
In
the scenario in which an attorney is faced with a decision whether in
response to a document subpoena to produce a document in possession of a
corporate affiliate, the ethical code does not address this issue other
than in the general duty of an attorney to be a zealous advocate. The constraint on this duty, criminal
law, dictates that it is a crime to conceal or destroy documents responsive
to a document subpoena.[xliii] So how do these rules operate in
conjunction with one another?
The
threshold question asks whether the document is responsive to the
subpoena. If, on one hand, the
document is not responsive to the subpoena (that is, because there is no
such study in possession of the company) then there is no affirmative
obligation to produce the study. A
narrow reading of the subpoena may reach this result. If the attorney concludes that despite
the fact that the study is not technically responsive to the subpoena, it
is relevant to the proceedings and produces it, this attorney may have violated
his ethical duty to zealously represent his client and may have exposed
himself to malpractice charges. In
the absence of an affirmative obligation to produce the document, the
attorney is barred from harming the client.
Thus, if the document is not responsive to the subpoena, it probably
cannot be produced even if the attorney believes that some sense of justice
requires it.
If,
on the other hand, the document is responsive to the subpoena, must the
attorney produce it? To be sure, it
is a crime for the attorney to conceal or destroy the document. However, the Ninth Circuit was clear that
mere failure to produce documents without more in the way of actions or
conduct does not constitute an intent to obstruct the proceeding in which
the documents were subpoenaed.[xliv] Indeed, the U.S. Supreme Court reversed a
contempt conviction of an attorney who had counseled his clients not to
respond to subpoena (duces tecum) because the attorney acted in good faith.[xlv] So one could imagine some response to the
subpoena that does not involve the production of the document but also does
not constitute active concealment or destruction.
Assuming
the lawyer is not going to produce the document requested by the subpoena, the
lawyer would presumably have an associate communicate that fact to opposing
counsel. This would typically be
accomplished via a letter stating there is no document responsive to the
subpoena. The danger in this action
is that if a lawyer directs his associate to write a letter omitting
material information that there
is a document on point but not in possession of the subpoenaed corporate
entity that lawyer has arguably engaged in “misleading conduct”
towards another person with intent to cause or induce any person to
withhold a document from an official proceeding in violation of 18 U.S.C. §
1512(b). It is important to remember
that any conduct can be construed as obstruction of justice, so the fact
that the lawyer’s statement is literally true (there is in fact no company study responsive to the
subpoena) is not a defense. Unlike
the crime of perjury in which literal truth is an affirmative defense,[xlvi]
there is no literal truth defense to obstruction of justice.
Once
one recognizes that the lawyer may have committed the actus reus of a crime, the
question becomes has he done it with the requisite mens rea? If the lawyer is acting corruptly, he or
she will be found to have obstructed justice; if the lawyer is acting in
good faith, he or she will not. To complicate matters, most, if not all,
of the evidence of good faith will lie in the attorney’s own
mind. The Section 1515(c) good faith
defense offers little protection because it essentially inquires into the
nature of the attorney's thoughts.
While there do not seem to be any prosecuted cases of attorneys
under this theory, the defense is seemingly weak. If some other evidence were to surface
(for example, if the lawyer had a personal stake in the outcome of the
litigation or the lawyer was acting in the best interest of someone other
than the nominal client) it may be enough to tip the scale in favor of
prosecution. Although the rule of
lenity –in an ambiguous statute an action that is not clearly
prohibited is legal[xlvii]
– offers some solace, it is of little comfort to the practicing
attorneys who must risk indictment to fulfill their ethical duties to their
clients.
The
second scenario tackles the issue of a lawyer for a corporate party dealing
with the corporate clients employee, who is a witness. In preparation for the witness’s
upcoming deposition, perhaps the corporate lawyer has reviewed his
correspondence and has debriefed the witness. Candidly, the lawyer may not think the
witness has any personal exposure, but is aware of conduct that may be
harmful to the lawyer’s corporate client.
Practitioners
in such a situation must be aware of criminal obstruction of justice law,
which provides that intimidation or misleading conduct toward a possible
witness to “influence, delay or prevent” testimony is a crime. Given these parameters, lawyers could
very well face obstruction of justice liability if they mislead the witness
into thinking it is in the witness’s best interest to invoke his or
her Fifth Amendment right when, in fact, the lawyer is counseling the
witness to invoke his or her Fifth Amendment in order to protect his client.
Knowledge
of the Cioffi case is crucial. Attorney Cioffi, was convicted of
obstruction of justice for meeting with a witness, encouraging him to
invoke his Fifth Amendment right, and offering the witness a benefit – forgiveness of a $25,000 loan
– and avoidance of some
detriment – harm to his wife – if the witness invoked his right.[xlviii] If Cioffi had not offered the benefit,
would he have still committed obstruction of justice? That is, if Cioffi had merely met with a
witness and encouraged him to invoke his Fifth Amendment right, would that
have been enough to sustain a conviction?
There does not appear to be a case on point, but the Third Circuit
has recognized that the language of 18 USC Section 1512 is broad enough to
encompass criminal responsibility for a lawyer advising a non-client
witness to invoke his or her Fifth Amendment right.[xlix] Given this case law, the prudent lawyer
would be wise to avoid advising a non-client witness to invoke his Fifth
Amendment right.
An
attorney who “merely inform” the witnesses of the existence of their
Fifth Amendment right as opposed to advising its invocation could also face
exposure, particularly if the “mere information” would be
interpreted by a reasonable person as advice to, assert the Fifth Amendment
right. Attorneys should bear in mind
that courts have deemed that “whatever the contours of the line
between traditional lawyering and corrupt intent may be, they must
inevitably be drawn case-by-case.”[l] As a result, with no case law on this
point, attorneys in this situation must risk indictment in order for a
court to determine whether his behavior was zealous or criminal.
Ultimately,
the best solution for lawyers in this situation is to ensure that another
attorney is involved in the case exclusively to represent the interests of
the witness. Case law has protects
an attorney who conveys an encouragement to invoke a Fifth Amendment right
through the filter of witness.[li] Apparently, if the witness in the second
scenario has his own counsel, the corporate clients lawyer maybe able to
persuade the witness to invoke his right while knowing the witness will get
the benefit of independent legal advice.
This
scenario posits that the corporate client's lawyer enlists the aid of
another lawyer to represent the witness, the newly retained lawyer recognizes that
his fees are being paid by the corporate client, and the corporate client’s lawyer is a
good source of future referrals. The corporation and its lawyer will be
pleased if the employee asserts his Fifth Amendment right. Can the newly retained lawyer thus
counsel the witness to invoke the Fifth Amendment on these bases? The answer is, of course, no. The lawyer must put the personal benefits
of the invocation out of mind and focus solely on the best interests of his
client. The newly retained lawyer may
advise his client to invoke the right or not based solely on what will most
benefit the lawyer's client.
If
a witness’s lawyer allows external motivations to influence his or
her counsel, the lawyer is no longer acting with good faith, since the
advice is based on factors other than the best interests of his
client. On the other hand, if the
lawyer does not allow external motivations to influence his or her thinking
and considers only the best interests of the client, although the lawyer is
not guilty of obstruction of justice, the lawyer still may not be in the
clear. Most crimes, and obstruction
of justice is no exception, are prosecuted based on the actus reus of the crime, not
the mens rea, because it is impossible for a prosecutor to know with
certainty what goes on in another’s head. The scenario in which the lawyer
considers the extraneous to the best interests of the client may, from the
prosecutor's vantage point, look exactly the same as the scenario in which
the lawyer does not consider such motivations. Both scenarios posit a lawyer with a
personal financial interest advising his or her client to invoke the Fifth
Amendment right and the client does so, resulting in evidence being
suppressed. As a result the virtuous
lawyer may still be charged even though he or she has not committed a
crime.
Nevertheless,
there are some steps the lawyer can take to create exculpatory evidence
regarding virtuous intent and thereby reduce the likelihood of being
charged. One option is to draft a
memo to file detailing a lawyer's thinking at the time of counseling his or
her client to invoke his ore her Fifth Amendment right. Another option is to consult a legal
ethicist. If an ethicist sanctions
the lawyer’s conduct, then the lawyer may have both a defense and a
witness to testify on his or her behalf.
Unfortunately for the practicing attorney, obstruction cases against
attorneys turn on very fine lines - some of them involve an inquiry into
the lawyer's thinking. Exculpatory
evidence will help a lawyer avoid conviction but won’t necessarily
avoid indictment or the accompanying embarrassment or harm to the lawyer's
reputation.
There
are situations in which the line between zealous advocacy and obstruction
of justice is hazardously vague and relies on invisible evidence of the
inner thoughts of a practicing attorney.
Because the distinction in obstruction of justice law between criminal
and legal is so fine, and the repercussions so severe, civil litigators must
acknowledge that if they are not aware of the law of criminal obstruction
of justice, they may be doomed to violate it or come perilously close.
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