Sting Operation on a Child Witness

An online dictionary defines a sting operation as “a complicated confidence game planned and executed with great care (especially an operation implemented by undercover agents to apprehend criminals).” In law-enforcement contexts, covert investigation tactics are essential to obtaining evidence of criminal conduct committed by participants in sophisticated criminal enterprises. Evidence of common street crimes such as drug dealing and prostitution is often gathered with sting operations as well. Lawyers sometimes advise or supervise these activities to assure compliance with the law and admissibility of any evidence that is gathered.

Compare this with the sting operation carried out by a Madison, Wisconsin, criminal defense lawyer against the fifteen-year-old who accused his client of repeated sexual assaults beginning when the boy was nine years old.

The lawyer believed that the boy was lying and thought that the boy’s computer might contain evidence of the child’s independent interest in child pornography. The lawyer was concerned that the police investigator would not objectively seek and examine such evidence and that the boy might destroy evidence on his computer if given any warning.

The lawyer decided to retain a private investigator to trick the child and his mother into surrendering the boy’s computer and any evidence it might contain.

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Hot Potato Conflicts

I recently taught about successive conflicts in my ethics class, and there could be no better timing than the Fish & Richardson case to explain the hot potato scenario.  The “hot potato doctrine” means that firms are generally prohibited from dropping smaller clients (like hot potatoes) in order to pick up more lucrative clients.

Apparently, Fish & Richardson represented, until recently, headset maker Aliph in its regulatory work out of Fish’s D.C. office.  Aliph is now suing to have Fish & Richardson disqualified from representing a direct competitor against it in a patent case.  As the Recorder explained:

Aliph Inc. moved to disqualify Fish from representing Bluetooth rival Plantronics in the patent case two weeks ago, arguing that the firm shouldn’t be allowed to sue its own client or get out of the mess by suddenly disowning Aliph at 8:30 p.m. the night before . . . .

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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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