Client Fraud and the Lawyer

 

As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover.  We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt.  And what was the role of lawyers in all this?  Financial transactions of this sort inevitably involve lawyers at some stage.  Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this.  And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.

Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients.  To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial.  But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it?  Assume further that the fraud is on-going and not a past act.  What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)?

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Taking Oaths Seriously

 

Most presidents take the oath of office twice in their lives only if reelected.  Yesterday night, Barack Obama took the oath – again –  from Chief Justice John Roberts because of the miscues during the inauguration ceremony the day before.  The media’s take, thus far, is to poke fun at what is called the “do over,” the “flub heard around the world,” (MSNBC) and the “oaf of office” (courtesy of the New York Post).  Yet at the same time, we are assured that Obama’s first oath was essentially good enough or perhaps even unnecessary for him to assume the presidency because the new term began at noon on January 20, 2009 regardless.  Yale’s Akhil Amar obligingly opined on NBC that the second oath was akin to “wearing both a belt and suspenders.” 

Personally, I’d find it somewhat unsettling if Obama began wearing a belt along with suspenders, so I think it is worth our time to take seriously an event that obviously the President and the Chief Justice took quite seriously.   I am very much impressed that Obama and Roberts thought the oath significant enough to warrant the second ceremony.  Clearly it was not done to deflect the embarrassment of the day before; indeed, the second oath only underscored their abject failure to recite correctly the 35 word oath – hardly a pas de deux.  I also doubt that either Obama or Roberts fretted about the legality of the inauguration ceremony; the second oath was not intended to avoid crack pot law suits.  

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An Ode to John Mortimer

As faculty blogger of the month, I feel obligated to address this month’s question about one’s favorite movie about legal practice.  In truth I have no such favorite movie, only some that are less tedious or off-putting than others.  Yet the recent passing of John Mortimer (left) compels me to say just a few words.  (I know an “ode” is supposed to be a poem, but I’m a lawyer after all, so a short essay is the best I could hope for.)

I honestly do not much like movies or television shows about lawyers or legal practice.  It’s not that they are “unrealistic”; they are, after all, entertainment, not educational in purpose.  The lawyers are usually caricatures at one extreme or the other.  On the one side you have the unctuous Atticus Finch-type (I’d rather leave the planet than read or watch To Kill a Mockingbird — Finch loses the big case and gets his client killed; nice job!) and on the other you have the venal sleaze-ball.  I like subtlety.  Denzel Washington’s character in Philadelphia, for example, is affecting because he portrays a lawyer fighting his own demons while battling for his client.

And this brings me to John Mortimer, himself an accomplished barrister, a champion of free speech, and a gifted writer who died last week in Great Britain. 

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