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First Amendment Lawyer's Association Recent Ethical FIRST AMENDMENT LAWYER’S ASSOCIATION QUÉBEC, QC, CANADA CONFERENCE 2019 RECENT ETHICAL ISSUES IN THE PRACTICE OF LAW BARRY NELSON COVERT, ESQ. LIPSITZ GREEN SCIME CAMBRIA LLP 42 DELAWARE AVENUE, SUITE 120, BUFFALO, NEW YORK 14202 (716) 849-1333 TABLE OF CONTENTS I. The Ethics of Joint Defense Agreements II. Jury Selection in the Trump Era – “Fake News” and the Corrupt FBI!!! III. Opening Arguments – Never Concede, Surrender or Back Down IV. The Government’s Direct Proof V. “Just Say No” VI. Handling a Claim of Ineffective Assistance V12 IX.Your Legal Advice Can Get You Indicted 29 XI.Ethics and Litigation XII. First Amendment Right to Record the Police...................................................34 XIII. Post Snowden Electronic Confidentiality- Beware the Invasion of “Bots” and “Malware”.....................................................................................................38 XIV. Identifying and Handling Conflicts of Interest XV. No Need to Attend the Entire Trial?..................................................................62 XVI. Fraud Behind the ‘Legal Curtain’......................................................................... XVII. Client Relations XVIII. Types of Prosecutorial Misconduct...................................................................69 1 I. The Ethics of Joint Defense Agreements A. Joint Defense Agreements and the Monolithic Defense 22 NYCRR 1200.1 Rule 1.1 states that: “A lawyer should provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Joint Defense Agreements (“JDA”) and multiple defendant trials create unique and vexing problems including relationship dynamics among co- defendants and co-counsel, as well as zealously representing your client’s best interests without harming a co-defendant. The goal of all counsel must be to uniformly challenge and undermine the government’s Theory of Prosecution. A monolithic defense. Chipping away at the government’s evidence, and each and every witness, is the path to undermining their Theory of Prosecution. Chipping away at a co-defendant is a certain path to conviction. In a single defendant trial, the defense can obviously utilize a single and consistent defense strategy or theory. With multiple defendants, however, there is a significant risk that while some defendants will challenge the government’s entire Theory of Prosecution, one or more of the defendants, in an attempt to separate themselves from certain acts or co-defendants, will confirm portions of the government’s Theory of Prosecution. Doing so, in any form or at any level, supports the entire Theory of Prosecution and can be the death knell for all defendants. During opening arguments the government lays out its Theory; they are forever wed to that theory. If a JDA co-defendant later confirms a portion of that theory, then the jury is inclined to credit the entirety of the governments Theory. Along those essential strategic thought lines, some JDA gems from Jim Harrington: Harold Boreanaz – “It’s better for everyone to be pissing out of the tent together than having some pissing into the tent.” 2 Don’t gratuitously shit on the codefendants or their lawyers unless it is absolutely necessary. Give care to how you structure and ask questions. Avoid using the names of codefendants in your questions. Additional concepts to be considered in relation to a multi-defendant case: Establishing trust among co-counsel is absolutely, positively mandatory. Keep talking with the other defense counsel no matter how hard it is, and it can be hard!! Egos – lose them. Have fun – this is what we love to do. Embrace the chaos: The government has worked long and hard to prepare a cogent Theory of Prosecution. They meticulously reviewed the FBI 302’s, witness statements, 3500 materials, etc.; they thereby formulated the best possible prosecution “story” or narrative. However, multi-defendant cases are long, complicated and messy. “Chaos” opportunities will inevitably arise. Look for grenades – pull the pin, throw the grenade, put the pieces back together in your preferred pattern. The defense must be adept at picking up the pieces and formulating the best possible path toward an acquittal or a hung jury. The government is not typically nimble nor willing to embrace chaos, which necessarily requires that they alter their trial strategy in mid- stream. Remember, the government is tied to their opening statements. Any deviation, at all, must be exposed and exploited. Embracing and enjoying chaos, without harming a co-defendant, creates a great defense advantage at trial. B. The Joint Defense Agreement – What it is and What it’s Not A. U.S. v. Krug, 868 F.3d 82 (2nd Cir Aug. 18, 2017) Despite a JDA being in place, co-defendants communications without a lawyer present are not necessarily protected by the JDA: The excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common- 3 interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney. While expressing no view as to whether all such circumstances would invoke the privilege, we find nothing in the circumstances here to support the application of the privilege, and accordingly reverse the district court's order of exclusion. The Krug Court discussed the purpose of the attorney-client privilege: The underlying purpose of the attorney-client privilege is “to encourage full and frank communication between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). As a result, the attorney- client privilege creates a rule of confidentiality that “recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.” Id.; see also United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) (explaining that the privilege “recognizes that a lawyer's assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure” (internal quotation marks omitted)). To that end, “[t]he attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.” Mejia, 655 F.3d at 132. The Court then discussed the “joint defense privilege”, which is more properly identified as the “common interest rule”: The joint defense privilege, more properly identified as the common[-]interest rule, is “an extension of the attorney[-]client privilege.” Schwimmer, 892 F.2d at 243(internal quotation marks omitted). “It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” Id. The common-interest rule protects “[o]nly those communications made in the course of an ongoing common enterprise and intended to further the enterprise.” Id. As with all attorney-client privilege claims, a claim of privilege under the common-interest rule “requires a showing that the communication in question was given in confidence and that the 4 client reasonably understood it to be so given.” Id. at 244. Although the common-interest rule “somewhat relaxes the requirement of confidentiality by defining a widened circle of persons to whom clients may disclose privileged communications,” Restatement (Third) of the Law Governing Lawyers § 76 cmt. c (2000) (internal citation omitted), “a communication directly among the clients is not privileged unless made for the purpose of communicating with a privileged person,” Id. § 76cmt. d, i.e., the lawyer, “agents of” the client or of the lawyer “who facilitate communications between” the client and the lawyer, and “agents of the lawyer who facilitate the representation.” Id. § 70. In this vein, we have stated that it is not “necessary for the attorney representing the communicating party to be present when the communication is made to the other party's attorney” under a common-interest agreement. Schwimmer, 892 F.2d at 244. Ultimately, “[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.” United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (Friendly, J.). The Court determined that the co-defendant discussions without a lawyer present were not protected by the attorney-client privilege: The communications at issue in this case did not serve the interests that justify the privilege. The communications occurred outside the presence of any lawyer. Notwithstanding that the lawyers for the defendants were nearby and had recently been in communication with their clients, the excluded statements were not made for the purpose of obtaining legal advice from a lawyer, nor did the excluded statements share among defendants advice given by a lawyer, nor did the excluded statements seek to facilitate a communication with a lawyer. Here, the hallway discussion consisted of one member of the JDA (Wendel) conveying his independent, non-legal research to another member of the JDA (Krug)
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