Finders Keepers? I Don't Think So!

Although legal ethics rules can be counterintuitive, many ethical dilemmas can be resolved by the application of common decency and morality. One basic norm we were taught as early as kindergarten, is that when you find something that does not belong to you and you know its rightful owner, you return the property to that person.

Picture this: Somehow your opposing counsel ends up with your twelve pages of notes of a meeting you and your experts had preparing a defense for your client. Instead of returning to you your attorney work product, your opponent makes copies of your notes, shares them with co-counsel, and uses them to prepare a line of questions to impeach one of your experts at trial.

Does this seem like ethical behavior to you? I hope not. The Supreme Court of California declared this conduct unethical and disqualifed the errant lawyer and his firm in Rico v. Mitsubishi Motors Corp., Cal., No. S123808, 12/13/07.

The appropriate course of action that the plaintiff's lawyer should have taken was explained by the court:

When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.

Exploitive behavior of this type is a recipe for disaster. Perhaps some lawyers need to go back to kindergarten to learn that you simply don't take or use property that does not belong to you.

Waterboarding: Does this look like torture to you?

No, it's not a form of recreation, dude, but a means used by interrogators to extract information from prisoners. The technique of waterboarding involves strapping the person being interrogated on to a board as pints of water are forced into his lungs through a cloth covering his face while the victim's mouth is forced open. Waterboarding's purpose is to simulate drowning and produces the gagging reflex in the subject. This fear of drowning coerces confessions, admissions and information from the subject.

All countries, including the U.S., that are signatories to the United Nations Convention Against Torture and the Universal Declaration of Human Rights have pledged against the use of torture. Numerous experts have declared waterboarding is torture and countries, including the United States, have criminally prosecuted persons charged with employing waterboarding. According to Republican United States Senator and Presidential Candidate John McCain, who was tortured as a prisoner of war in North Vietnam, waterboarding is "torture", "no different than holding a pistol to his head and firing a blank" and can damage the subject's psyche "in ways that may never heal."

It has been reported that U.S. CIA agents used waterboarding to interrogate Guantanamo detainees as part of the War on Terroism. The use of waterboarding to interrogate prisoners has been justified by the Bush Administration because of valuable information the Government has obtained. For example, it has been reported that Khakid Sheikh Mohammed was waterboarded while being interrogated by the CIA. According to the Bush Administration, Khalid Sheikh Mohammed divulged information of tremendous value during his detention. He is said to have helped point the way to the capture of Hambali, the Indonesian terrorist responsible for the 2002 bombings of night clubs in Bali. According to the Bush Administration, he also provided information on an Al Qaeda leader in England.

In view of the reports that the U.S. Government had employed waterboarding as an interrogation technique, more than 100 law professors wrote an open letter ( http://hrw.org/english/docs/2006/04/06/usdom13130.htm ) urging then Attorney General Gonzales to declare that waterboarding is an unlawful form or torture prohibited under international law and the 2006 Defense Authorization Act prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody. The law professors quoted appropriate sections of the law:

The Convention Against Torture prohibits practices that constitute the intentional infliction of “severe pain or suffering, whether physical or mental.” The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause “severe physical or mental pain or suffering.”

Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward.

Waterboarding, when used against people captured in the context of war, may also amount to a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding is also an assault, and thus violates the federal assault statute, 18 U.S.C. § 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. In cases involving the U.S. armed forces, waterboarding also amounts to assault, and cruelty and maltreatment under the Uniform Code of Military Justice.

Of course, Alberto Gonzales and others under his direction, counselled the President that captured members of Al Quaeda and the Taliban were outside the scope of the Geneva Convention and other international law governing the treatment of prisoners of war. For a thorough analsis of the "torture memos" issued by the Office of Legal Counsel of the DOJ in 2002 see: http://lawofwar.org/Torture_Memos_analysis.htm

A lawyer has an ethical duty to competently advise a client when the client's actions are illegal, fraudulent or immoral. Certainly the Attorney General owes a duty to declare such conduct inappropriate and to advise the President to direct that such conduct not be employed or tolerated. Gonzales failed to discharge his duty to the client. Michael B. Mukasey, during his confirmation hearings to be the next Attorney General told the Senate that he refused to take a position on whether waterboarding is torture because he did not know enough about it!

This position is astonishing for a federal judge aspires to the next Attorney General and is seemingly not plausible. Torture, and water-boarding in particular, is one of the top issues facing the Justice Department, the subject of numerous lawsuits and one of the most obvious, predictable topics at the hearing. It has been discussed literally thousands of times in the media during the last six years. To say he is unfamiliar with the technique is incredible and disingenous.

On November 9, 2007, Michael B. Mukasey was confirmed to serve as the 81st Attorney General of the United States.

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Be Careful Who You Hire and Supervise Your Staff

Lawyers and law firms cannot be too careful, even if the trusted staff person is a long-term employee with a reputation for competence and integrity. Harvey Latney Jr., the part-time commonwealth’s attorney in Caroline County who maintains a practice in Richmond, discovered that Shelia Mae Boone, his secretary for 27 years, is a crook. She pleaded guilty in November to a federal bank fraud count related to the theft of at least $92,930 from an estate administered by Latney. Boone’s attorney claims that’s all his client took, but an attorney for Latney insists Boone stole about three times that amount from estates administered by Latney and from law firm accounts. An estate is suing Latney for more than $200,000, and he is contending that he can tap a legal malpractice insurance policy with limits of $100,000 per occurrence and $300,000 in total coverage. The insurer, ALPS, maintains that the claim is excluded under the policy.

Some policies, however, do contain an endorsement for fidelity claims arising out of employee theft. In fact, lawyers conducting real estate settlements in Virginia must have coverage for employee defalcation under state law, i.e., the Consumer Real Estate Settlement Practices Act (CRESPA).

Lawyers have an ethical duty under Rule 5.3 of the Rules of Professional Conduct to supervise and monitor the activity of non-lawyer staff in a law office and can be subject to discipline for failing to do so.