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) while noting he had sent the same research to his attorney. No legal advice was mentioned, much less shared or otherwise conveyed, among the co- defendants. The mere fact that the communications were among co-defendants who had joined in a joint defense agreement is, without more, insufficient to bring such statements within the attorney-client privilege. We know of no precedent applying the attorney-client privilege on such facts and we find no circumstances present here that could justify extending the

5 attorney-client privilege to these communications.

Joint Defense Agreements (“JDA’s”) are a must. Equally important is co-counsel quickly withdrawing from the JDA if their client is cooperating or taking a plea.

Defense attorneys typically create discovery charts, summaries, or other work product. Selflessly sharing work product engenders trust and helps to create a joint defense strategy or theme.

II. Jury Selection in the Trump Era – “Fake News” and the Corrupt FBI!!!

Western District of New York Counties:

Buffalo  Allegany  Cattaraugus  Chautauqua  Erie  Genesee  Niagara  Orleans  Wyoming

Rochester  Chemung  Livingston  Monroe  Ontario  Schuyler  Seneca  Steuben  Wayne  Yates

In the Western District of New York Buffalo Courthouse, there are a large number of Trump supporters. My suggestion to local attorneys: embrace the Chaos (or the nearest orange mammal with small fingers and strange hair). The Trump supporters enjoy claims of “Fake News,” the corrupt FBI and the Department of State conspiracy. Channel that energy.

A significant portion of such a jury pool will also consist of strong and vocal proponents of the Second Amendment. Example of a juror comment we heard from more than one prospective juror: “I am tired of anti-gun 6 people trying to take my guns away from me every time there is a massacre of children.” Tread very carefully.

Millennials are your friends. They do not trust the establishment and they do not generally tolerate racism, sexism or anti-LGBTQ bigotry.

Do not assume that racial minority jurors want to sit on a case involving defendants that are also racial minorities.

III. Opening Arguments – Never Concede, Surrender or Back Down

Trump never concedes or surrenders – ever – no matter the facts – “Fake News!!” And he continually undermines the FBI. Go with it! Your jury supports Trump.

Establish the unified JDA defense theme and never back down:

“Everything that guy just said is bullshit.”

Joseph Pesci (aka, Vinnie Gambino, Jerry Gallo and/or Jerry Callo), My Cousin Vinny (second best movie ever, after Princess Bride, of course!).

Start the trial with a strong attack upon the credibility of the government’s witnesses, including the incredibly strong possibility that they committed the crime(s) and are now blaming the defendants.

Do not undermine a JDA co-defendant, which is playing into the government’s trial theory.

IV. The Government’s Direct Proof

Once you get the low hanging fruit – it’s time for a punch to the mouth.

The great pugilist philosopher, Mike Tyson, once said: “Everyone has a plan until they get punched in the mouth.”

Sometimes you have to take risks and ask unexpected questions – why not? It's not going to get any worse.

I asked a witness a question he didn’t expect and hadn’t rehearsed the answer to before he testified:

“Why did you possess that .357 Magnum”?

7 He was flummoxed – he didn’t know what to say.

He wasn’t going to tell the truth so he said:

“For recreation”

Then he got another question he didn’t expect:

“What does that mean?”

Again, caught up in his own lies, he’s stumped – then finally:

“Whatever recreate means in the dictionary.”

What does it mean?

“I don’t have a dictionary with me.”

You chose the word.

Gets caught up because he won’t just tell the truth.

CROSS-EXAMINE AS A TEAM

Ethical question: Are you acting in your client’s best interest when you forgo avenues of cross-examination or decline to offer evidence that is favorable to your client but undermines a co-defendant – YES! If the goal is to win, then the JDA defense must be a monolithic attack upon the government’s theory of prosecution: undermining a co-defendant is supporting the government’s theory of prosecution and therefore hurts your client. A witness that supports the government’s Theory of Prosecution is a direct threat to your client regardless of whether that witness actually names or identifies your client. You should also vigorously cross-examine witnesses that may not directly harm your client, but support the government’s Theory of Prosecution.

A “team” approach to cross-examination assignments changes the game. Play upon JDA counsel’s strengths, regardless of which defendant that witness harms.

V. “Just Say No”

The real-life tolls of a mega-trial (or two) can impact the client’s right to the effective assistance of counsel. I had numerous situations that arose 8 including: counsel with medical conditions; immediate family members with medical conditions, Guantanamo Bay, etc.

VI. Handling a Claim of Ineffective Assistance

Handling a claim of ineffective assistance can be vexing. Many competing interests must be balanced:

 The defendant’s Sixth Amendment right to conflict-free counsel.  The attorney-client privilege.  Waivers of the attorney-client privilege with respect to communications that counsel “reasonably believes to be necessary to disprove the allegations.” NYCRR 1.6(b)(5)(i) and 1.6(b)(6). Aladino v. U.S., No. 09-cv-926 (CBA), 2011 W.L. 61113331175 at 2* (EDNY 12/8/11).  Erstwhile counsel’s continuing duty of confidentiality to the former client.

Determining the timing and scope of any waiver of the attorney-client privilege can be very complicated.

I will explain how during the trial, co-counsel was able to balance his role as a “government agent” with that of a defense attorney.

I will also discuss the logistical problems inherent with not having a local federal detention center. Furthermore, the Northeastern Ohio Detention Center apparently records the attorney-client communications.

I am currently working through a case that was charged in 2013, pled in 2015. Ineffective assistance claims were first raised in 2016. Patrick Lennon was eventually assigned to represent the defendant, various pleadings have been filed, and the issue of the waiver of the attorney-client was appealed to, and promptly denied by, the Second Circuit. Case 18-2582.

Judge Richard Arcara recently issued the following Order:

On or before April 10, 2019, defendant shall submit a memorandum including a complete proffer of the anticipated evidence and argument of applicable law that the defendant will rely upon to carry his burden to establish prejudice sufficient to justify withdrawal of his guilty plea pursuant to Fed. R. Crim. P. 11(d) as a result of what he alleges was his former counsel's conflict of interest and constitutionally-ineffective assistance of counsel. This submission shall be accompanied by copies of all materials within the scope of the March 28, 2019 Government's 9 Discovery Demand 153 (the "materials") that the defendant will seek to introduce or use in any way during the evidentiary hearing on his pending motion or otherwise in support of his motion. The copies of materials may, upon proper application, be filed under seal, but shall be served on the United States.

Counsel for the defendant, Patrick J. Brown, Esq., and former counsel, Barry N. Covert, Esq., shall meet and confer regarding the materials within the scope the Government's Discovery Demand to reach agreement on the remaining materials that can be disclosed to the United States and the Court at this time due to the waivers by defendant of his attorney-client privilege or other privileges as to certain communications between the defendant and Mr. Covert. Current counsel for defendant shall have the responsibility to produce the materials, but shall supply them to the United States' counsel and the Court on or before April 19, 2019, without the redactions that will be required pursuant to Fed. R. Crim. P. 49.1 before their use in open Court or filing.

In light of Mr. Covert's continuing obligation of confidentiality to defendant, he shall cooperate with current counsel for the parties to reach agreement on the terms and conditions of a proposed Protective Order for all of the materials within the scope of the Government's Discovery Demand that he and Mr. Brown on behalf of defendant agree can be disclosed at this time. This Protective Order shall remain in effect at least until the Court determines whether Mr. Covert labored or is currently laboring under an actual conflict of interest and whether he retains the capacity correctly to determine the materials that may reasonably be necessary to disprove the allegations against him and about his legal advice that are raised by defendant. The parties shall submit their proposed Protective Order to the Court on or before April 15, 2019, in anticipation of the April 19, 2019 disclosure due date.

As the parties are complying with this Text Order, they shall also confer regarding an efficient way for them to discharge their responsibilities to uphold Mr. Covert's continuing duty of confidentiality to defendant, and regarding an efficient way for the Court to address and resolve any disputes — if any — that remain about the disclosure of materials that are within the scope of the Government's Discovery Demand that must be produced to the United States and the Court at this time, before the Court has determined whether Mr. Covert is presently laboring under an actual conflict of interest that impairs his 10 capacity correctly to determine what documents and information may reasonably be necessary to disprove the allegations raised by defendant. SO ORDERED. Issued by Hon. Richard J. Arcara on March 29, 2019. (WJG) (Entered: 03/29/2019)

13-cr-00151, Dkt. Text 154

VII. Social Media and Website Issues

A. Information about Lawyers, their Law Firm, or their Clients

Lawyer websites may provide biographical information about lawyers, information about the law firm, such as, history, experience, and areas and practice. Any of this information constitutes a “communication about the lawyer or the lawyer’s services” and is therefore subject to the requirements of Model Rule 7.1 as well as the prohibitions against false and misleading statements in Rules 8.4(c). As applied to lawyer websites, these rules allow a lawyer to include accurate information that is not misleading about the lawyer and the lawyer’s law firm, including contact information and information about the law practice. To avoid misleading readers, this information should be updated on a regular basis. Specific information that identifies current or former clients also may be disclosed, as long as the clients or former clients informed consent has been obtained as required by Rules 1.6 and 1.9.

The Iowa Supreme Court Disciplinary Board found that the respondent, Bjorklund, operated a website that contained various false statements, misrepresentations and unverifiable claims. Some of the claims referred to Bjorkland as the “foremost authority on drunk driving defense,” and said that he was “hand-selected from amongst all Iowa attorneys to author books on Iowa Appellate practice and drunk driving.”1 The court found that this violated Disciplinary Rule 2-101(A) for disseminating “false, deceptive, or unverifiable statements” on a website or advertisement. Id. Since he had various aggravating circumstances, including previous disciplinary proceedings, the board thought that suspension from the practice of law was an appropriate sanction.

B. Information about the Law

Legal information, like information about a lawyer’s services or the lawyer’s services, must meet the requirements of Rules 7.1 8.4c and 4.1(a).

1 Iowa Supreme Court Attorney Disciplinary Bd. v. Bjorklund, 725 N.W.2d 1, 6 (Iowa, 2006). 11 Lawyers may offer accurate legal information that does not materially mislead reasonable readers. To avoid misleading readers, lawyers should make sure that legal information is accurate and current, and should include qualifying statements or disclaimers that “may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead prospective clients.”

C. Website Visitor Inquiries

Inquiries from a website visitor about legal advice or representation may raise an issue concerning the application of Rule 1.18. Rule 1.18 protects the confidentiality of prospective client communications. It also recognizes several ways that lawyers may limit subsequent disqualification based on these prospective client disclosures when they decide not to undertake a matter. For example, if a lawyer’s website specifically requests or invites submission of information concerning the possibility of forming a client-lawyer relationship with respect to a matter, a discussion, as that term is used in Rule 1.18, will result when a website visitor submits the requested information. If a website visitor submits information to a site that does not specifically request or invite this, the lawyer’s response to that submission will determine whether a discussion under Rule 1.18 has occurred. Lawyers have the ability on their websites to control features and content so as to invite, encourage, limit, or discourage the flow of information to an from website visitors. However, different circumstances can give rise to different analysis under Rule 1.18. For example, a former client’s website communication to a lawyer about a new matter must be analyzed in light of their previous relationship to determine whether a reasonable expectation of confidentiality has been created. But a person who knows that the lawyer already declined a particular representation or is already representing an adverse party can neither expect confidentiality, nor reasonably believe that the lawyer wishes to discuss a client-lawyer relationship.

If a discussion with a prospective client has occurred, Rule 1.18(b) prohibits use or disclosure of information learned during such a discussion absent the prospective client’s informed consent. When the discussion reveals a conflict of interest, the lawyer should decline the representation, and cannot disclose the information received without the informed consent of the prospective client. D. Warnings or Cautionary Statements

Warnings or cautionary statements on a lawyer’s website can be designed to and may effectively limit, condition, or disclaim a lawyer’s obligation to a website reader. Limitations, conditions, or disclaimers of lawyer obligations will be effective only if reasonably understandable,

12 properly placed, and not misleading. This requires a clear warning in a readable format whose meaning can be understood by a reasonable person. However, a limitation, condition, waiver, or disclaimer may be undercut if the lawyer acts or communicates contrary to the warning on the website. VIII. Talking To The Media In Criminal Cases A. Learning from Past Media Experiences

i. President Trump, Stormy Daniels, and Michael Avenatti Circus

While the President has not been charged with any crimes, he is involved in a very public civil lawsuit with adult actress Stormy Daniels. Michael Cohen, the President’s previous attorney, is under criminal investigation. Ms. Daniels’s attorney for her civil suit, Michael Avenatti, attempted to represent her in the criminal proceedings against Cohen.2 The presiding judge told Avenatti that he would have to end his “publicity tour” if he wanted to be admitted, prompting him to withdraw his motion to represent her.3 If Avenatti were admitted pro hac vice to represent Daniels, he would be subject to the ethical codes of a criminal proceeding. Avenatti has already publicly stated that he believes Cohen is guilty and released non-public information about Cohen, both of which violate the ethical rules he would otherwise have to follow if admitted.4

More specifically, Avenatti has “repeatedly denigrated Mr. Cohen, predicted that Mr. Cohen would be indicted for bank fraud, wire fraud, campaign finance violations, and accused Mr. Cohen of hiring a ‘thug’ to allegedly threaten Ms. Clifford.”5 Furthermore, Avenatti even appeared on Stephen Colbert’s “The Late Show” with former White House Press Secretary Anthony Scaramucci, where he openly criticized Cohen.6 Cohen’s attorneys claim this publicity will deprive their client of a fair trial. 7

2 Kevin Breuninger, Dan Mangan, Avenatti Drops Bid to Represent Stormy Daniels in Trump Lawyer Michael Cohen’s Case, CNBC Politics (July 10, 2018, 6:27 PM) https://www.cnbc.com/2018/05/30/ stormy-daniels-lawyer-drops-motion-to-join-michael-cohen-case.html 3 Id. 4 Id. 5 Frances Stead Sellers, Cohen Looks to Force Michael Avenatti to Stop Talking About Stormy Daniels Case, The Washington Post (July 11, 2018 3:52 PM) https://www.washingtonpost.com/politics/cohen-looks-to-force-michael-avenatti-to-stop-talking-about-stormy- daniels-case/2018/06/15/a36c9746-70a8-11e8-bf86-a2351b5ece99_story.html?utm_term=.45fd09a261cb. 6 Id. 7 Id. 13 ii. Potential of Being a Witness in Your Client’s Case

New York’s rule 3.7 forbids a lawyer to act as an advocate in a matter they are likely to be called as a witness:8

RULE 3.7. Lawyer As Witness

(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontested issue;

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal.

(b) A lawyer may not act as advocate before a tribunal in a matter if:

(1) another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or

(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.

A Buffalo attorney seeking to zealously represent his client in a recent federal case found himself as a potential witness after he made statements about the case to the media. A local businessman was charged with bribing Buffalo Police Officers to send business to his company.9 The United States

8 N.Y. Rules of Professional Conduct 3.7(a). 9 Phil Fairbanks, Defendant in Buffalo Tow Truck Case Says Charges are Retribution, 14 Attorney’s Office requested the businessman’s attorney be removed from the case because he could be a potential witness due to comments he made to the media that the defendants in the case have in fact bribed police officers.10 The attorney stated the statements were not about bribes but shakedowns by police. Ultimately, the Court found the attorney was not a witness and could continue with the representation

iii. District Attorney in Duke Lacrosse Rape Case Disbarred

North Carolina attorney Michael Nifong, former Durham County District Attorney, was disbarred due in part to statements he made to the media during the highly publicized “Duke lacrosse rape case.” The panel stated: “Nifong made extrajudicial statements he knew or reasonably should have known would be disseminated by means of public communication and would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter, in violation of Rule 3.6(a).” The case involved the alleged rape of a stripper that had been contracted to appear at a team party. The allegations were eventually found to be false and the case was dropped. The panel believed Nifong, who was up for election later that year, was using the case and statements he made to the press to gain political favor. These prejudicial statements include:11

Between March 27 and March 31, 2006, Nifong stated to a reporter for ABC 11 TV News that he might also consider charging other players for not coming forward with information, stating "[m]y guess is that some of this stonewall of silence that we have seen may tend to crumble once charges start to come out.”

I think that their silence is as a result of advice with counsel"; "If it's not the way it's been reported, then why are they so unwilling to tell us what, in their words, did take place that night?"; that he believed a crime occurred; that "the guilty will stand trial"; and "There's no doubt a sexual assault took place."

Between March 27 and March 31, 2006, Nifong stated to a reporter for ESPN, "And one would wonder why one needs an attorney if one was not charged and had not done anything wrong."

On or after March 27, 2006, Nifong stated to a reporter for the

BUFFALO NEWS October 3, 2013. 10 Id. 11 North Carolina State Bar v. Nifong, 06 DHC 35 (Disciplinary Hearing Comm. of the N.C. State Bar 2007) available at http://www.ncbar.com/discipline/printorder.asp?id=505. 15 Charlotte Observer newspaper, "I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."

In April 2006, Nifong stated to a reporter for the Raleigh News and Observer newspaper, "I would like to think that somebody [not involved in the attack] has the human decency to call up and say, ‘What am I doing covering up for a bunch of hooligans?'"

B. Relevant Rules of Professional Conduct

i. MRPC 1.6 - Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

16 (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

ii. MRPC 3.6 - Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

17 (5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

iii. Local Rule of Criminal Procedure - Rule 23 - Fair Trial Directives

(a) All counsel practicing before this Court are expected to be fully familiar with the provisions of the New York Rules of Professional Conduct, as amended May 4, 2010.

(b) Counsel’s attention is specifically directed to Professional Conduct Rule 3.6, captioned Trial Publicity, and 18 Professional Conduct Rule 5.3, captioned Lawyer’s Responsibility for Conduct of Non-Lawyers. See also Professional Conduct Rule 8.4, providing that any violation, attempt to violate, assistance in a violation of, or inducement of another to violate these local rules, whether undertaken directly or indirectly, constitutes professional misconduct.

(c) The Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matter the Court may deem appropriate for inclusion. In determining whether to impose such a special order, the Court shall consider whether such an order will be necessary to ensure an impartial jury, and must find that other, less extreme available remedies, singly or collectively, either are not feasible or would not effectively mitigate pretrial publicity and bring about a fair trial. Among the alternative remedies to be considered are: change of venue, postponing the trial, a searching voir dire, emphatic jury instructions, and sequestration of jurors.

C. Publicity in Criminal Cases

Over the years, national criminal defendants, such as O.J. Simpson, Casey Anthony or Oscar Pistorius have become household names due to public interest and the large-scale media trials that border upon spectacles.

Even if a case is not as high profile, criminal attorneys must be cautious and strategic with any statements they make to the media. Addressing the media is sensitive and very important, especially if the media is attacking your client’s innocence, character and reputation. “An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client.”12 Media and social media coverage can greatly affect your client’s right to a fair investigation, trial and ability to obtain an impartial jury. Attorneys must strategically consider how they comment to the media and be sure to adhere to federal and state restrictions placed on an attorney’s extrajudicial

12 Mark J. Geragos, The Thirteenth Juror: Media Coverage of Supersized Trials, 39 Loy. L.A. L. Rev. 1167, 1183-85 (2006) 19 statements.13

“An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client.”14 Media and social media coverage can greatly affect your client’s right to a fair investigation, trial and ability to obtain an impartial jury. Attorneys must strategically consider how they comment to the media and be sure to adhere to federal and state restrictions placed on an attorney’s extrajudicial statements.15

When attorneys push the limits of free speech and media interaction, courts have not hesitated to impose sanctions, fines, and even jail time. In United States v. Cutler, attorney Bruce Cutler, in violation of multiple gag orders, repeatedly denounced the government through media communications.16 While representing John Gotti, who was arrested on racketeering charges, Cutler called the prosecutors “publicity-hungry.”17 The court held Cutler in contempt, and imposed ninety days of house arrest, a one-hundred-and-eighty day suspension from practicing law, and six hundred hours of community service.18 The Second Circuit subsequently affirmed the sentence.19

In contrast, the court in United States v. Rosado considered the actions of prosecutors who referred to the defendants as “the remaining incarcerated leadership of [a terrorist organization].”20 Although the prosecutors may have violated the Justice Department guidelines regarding pretrial publicity, the court found that the statements were “harmless and do not remotely provide any basis for reversal.”21

Determining whether to approach the media aggressively or cautiously depends in large part upon the individual client and merits of the case. In most criminal actions, the media will portray the client in a largely negative

13 Wendy P. Mazzarella, CALIFORNIA BAR JOURNAL, When handling a high profile case, lawyers must be aware of California rules that govern trial publicity, available at http://apps.calbar.ca.gov/mcleselfstudy/mcle_home.aspx?testID=19 (Feb. 2009). 14 Making a Murderer: Indefensible (Netflix broadcast Dec. 18, 2015). http://www.netflix.com/watch/80000774? trackId=13752289&tctx=0,0,a3f712fa3662b6d74a96a597f539af767b831633:4989c98ee571d72bf9f4ce9f49d61e0c0 ae9f184 15 Mark J. Geragos, The Thirteenth Juror: Media Coverage of Supersized Trials, 39 Loy. L.A. L. Rev. 1167, 1183-85 (2006) 16 United States v. Cutler, 58 F.3d 825, 832 (2d Cir. 1995). 17 Id. at 828. 18 Id. at 838. 19 Id. at 841. 20 United States v. Rosado, 728 F.2d 89, 92 (2d Cir. 1984). 21 Id. at 96. 20 light, so it can be beneficial to approach the media in a way that present positive and mitigating factors. The platform provided by the media can be an effective way to sway public opinion, but too aggressive an approach may land an attorney in front of the ethics committee or worse. One of the most effective methods of communication with the media can be the docket. The media is often privy to court filings, which can be used to make a point without ever stepping foot in front of the camera. The most critical element of media communication, however, is maintaining a reputation for professionalism and ethics. The best public relations tool for an attorney is his good reputation, and no case is worth ruining your reputation by violating the canons of professional ethics.

i. Tension Between a Fair Trial and Free Speech

Competing First and Sixth Amendment concerns surrounding trial publicity has created great strains in attempting to balance these dueling rights. In the Supreme Court case of Gentile v. State Bar of Nevada, Justice Kennedy wrote that “[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.”22 On the other hand, there has been significant support for the First Amendment’s right to freedom of speech. Nevertheless, the Sixth Amendment’s right to a fair trial is recognized as “one of the few constitutional interests strong enough to serve as a counterweight to First Amendment free speech rights.”23 As such, the Supreme Court in Gentile24 held that trial publicity rules are not prima facie unconstitutional.

a. Gentile v. State Bar of Nevada In 1991, the Supreme Court in Gentile struck down Nevada’s Rule 17725 regarding extrajudicial statements, the equivalent to ABA Model Rule 3.6, at the time.26 Gentile is the only Supreme Court case that has ruled on the constitutionality of trial publicity rules.27 The Court held that limitations on lawyer’s extrajudicial speech are only constitutionally permissible where

22 Cal. Prac. Guide Prof. Resp. Ch. 8-D. 23 43 UCLA L. REV. at 1329. 24 Id. 25 Nevada Rule 177(1) prohibited an attorney from making "an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." Rule 177(2) listed a number of statements that are "ordinarily . . . likely" to result in material prejudice. Moreover, Rule 177(3) provided a safe harbor for the attorney, listing a number of statements that can be made without fear of discipline notwithstanding the other parts of the Rule. The Gentile Court found that this latter provision failed to provide counsel with fair notice as to the consequences of violating the first two paragraphs of the Rule. 501 U.S. at 1048-1049. 26 43 UCLA L. REV. at 1339. 21 the lawyer’s statement to the press are “substantially likely to have a materially prejudicial effect” upon the proceedings.28

The case involved a well-regarded criminal defense attorney, Dominic Gentile. Mr. Gentile held a news conference soon after his client was indicted on charges involving the theft of travelers checks and cocaine from a safety deposit box.29 Mr. Gentile was responding to the substantial pretrial publicity being put out by law enforcement, none of which shed favorable light on his client. Mr. Gentile, in his public statement, stated: “the evidence will prove . . . that Grady Sanders is an innocent person and had nothing to do with any of the charges that are being leveled against him.” He also alleged the police were using his client as a scapegoat for corrupt police activity.30 Mr. Gentile had apparently researched his statements to the media prior to calling the press conference and felt that his accusations were prudent and reasonable. “Gentile claimed his statements were necessary to combat prejudicial and pervasive publicity surrounding the case during the period before his client's indictment.”31 Jurors were questioned regarding pretrial publicity and the trial court determined that there were no issues. The jury eventually acquitted Mr. Gentile’s client.32

The Nevada State Bar found that Mr. Gentile violated Nevada Supreme Court Rule 177, the State’s version of ABA Model Rule 3.6.33

The Supreme Court, in an opinion authored by Justice Kennedy, addressed the propriety of Nevada’s interpretation of its ethical rule under the First Amendment, not its facial validity.34 The Court held that counsel’s statements constituted “classic political speech,” as opposed to solicitation of clients, which would not garner similar protections.35 Mr. Gentile’s words were “directed at public officials and their conduct in office.”36 The Court held that “speech critical of the exercise of the State’s power lies at the very center of the First Amendment. Nevada seeks to punish the dissemination… The judicial system, and in particular our criminal justice courts, play a vital

27 Gabriel Gregg, ABA Rule 3.6 and California Rule 5-120: A Flawed Approach to the Problem of Trial Publicity, 43 UCLA L. REV. 1321 (1996). 28 Gentile v. State Bar of Nevada, 501 U.S. 1030, 1076, 111 S.Ct. 2720, 2745 (1991); see Canatella v. Stovitz, 365 F.Supp.2d 1064, 1071–1072, fn. 7 (N.D. Cal. 2005); Cal. Prac. Guide Prof. Resp. Ch. 8-D.

29 Gentile, 501 U.S. at 1039. 30 Gentile, 501 U.S. at 1059; see Loretta S. Yuan, Gag Orders and the Ultimate Sanction, 18 Loy. L.A. Ent. L.J. 629, 636-37 (1998). 31 18 Loy. L.A. Ent. L.J. at 636-37. 32 Gentile, 501 U.S. at 1033, 1039-1046, 1049. 33 Id. at 1033-1034. 34 Gentile, 501 U.S. at 1034, 1036-1037. 35 Id. at 1034. 36 Id. 22 part in a democratic state, and the public has a legitimate interest in their operations.”37 The Court held that Mr. Gentile’s comments were protected by the First Amendment and therefore it was improper to sanction him.

The Court also addressed concerns for the circus-like atmosphere the media can create around a high-profile case and the implications on an accused’s Sixth Amendment right to a fair trial. For example, the Court cited to the infamous murder trial of Sam Sheppard.38 Sheppard was accused of the brutal murder of his wife. The media villainized Mr. Sheppard and campaigned for a guilty verdict. The Supreme Court did not want a repeat of the Sheppard media circus. The Court recognized the First Amendment interests attorneys have in relation to their public comments, but also saw the need to balance those interests against the State’s interest in regulating the speech in order to ensure a fair trial and impartial jury.

The Court struck this balance when it held attorney speech could be constitutionally restricted only when it presents a “substantial likelihood of material prejudice.”39 The “substantial likelihood” test strikes this balance by protecting the fairness and integrity of the judicial system and imposing narrow and necessary limitations on attorney speech. The test is meant to mitigate the effects of extrajudicial speech has on a trial including how they may influence the actual outcome of the trial, and prejudice the jury venire.

In applying this standard to the Gentile case, the Court found that Nevada’s application of its trial publicity rule violated the First Amendment. Petitioner spoke in a time and manner that did not create prejudice under the “substantial likelihood” standard:40

The police, the prosecution, other government officials, and the community at large hold innumerable avenues for the dissemination of information adverse to a criminal defendant, many of which are not within the scope of Rule 177 or any other regulation. By contrast, a defendant cannot speak without fear of incriminating himself and prejudicing his defense, and most criminal defendants have insufficient means to retain a public relations team apart from defense counsel for the sole purpose of countering prosecution statements. These factors underscore my conclusion that blanket rules restricting speech of defense attorneys should not be accepted without careful First

37 Id. at 1034-36. 38 See Sheppard v. Maxwell, 384 U.S. 333, 350 (1966); Gentile, 501 U.S. at 1053-1054. 39 Gentile, 501 U.S. 1036, 1075; see also United States v. McGregor, 838 F. Supp. 2d 1256, 1261 (M.D. Ala. 2012) (discussing Gentile); Mark J. Geragos, The Thirteenth Juror: Media Coverage of Supersized Trials, 39 Loy. L.A. L. Rev. 1167, 1183-85 (2006). 40 Gentile, 501 U.S. at 1075. 23 Amendment scrutiny.41

The Court also recognized that an attorney representing a client has an obligation to address the potential negative impact that bad publicity and an unfavorable public impression may have upon pending or potential proceedings:

An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.42

There are instances, however, in which those rights are trumped by fair trial concerns and the responsibility to avoid a circus-like spectacle. This sentiment is echoed in the Second Circuit’s closing thoughts (four years after Gentile) in the contempt case of Bruce Cutler, trial attorney for John Gotti:

We have considered all of Cutler's arguments, and find them without merit. We recognize that Cutler did not singlehandedly generate the media circus that threatened the fairness of the final Gotti trial; federal prosecutors and law enforcement officials deserve their share of the blame. Moreover, we sympathize with the plight of a defense lawyer torn between his duties to act as an officer of the court and to zealously defend his client. Nonetheless, a lawyer, of all people, should know that in the face of a perceived injustice, one may not take the law into his own hands. Defendant [Cutler] did, and now he must pay the price.43

The Court found Cutler guilty of criminal contempt, in violation of 18 U.S.C. § 401(3) and sentenced him to ninety days' house arrest, three years' probation, and suspended him from practicing law in the Eastern District of

41 Gentile at 1056 -58 (“At the very least, … we can say that the Rule which punished petitioner's statements represents a limitation of First Amendment freedoms greater than is necessary or essential to the protection of the particular governmental interest, and does not protect against a danger of the necessary gravity, imminence, or likelihood.”). 42 Id. at 1043. 43 United States v. Cutler, 58 F.3d 825, 840-841 (2d Cir. 1995) (emphasis added). 24 New York for 180 days.44 The conviction was supported by evidence of Cutler’s repeated prejudicial statements to the media made after the court’s warnings to follow the local trial publicity rule.45 The government alleged “twenty-five instances of media coverage stemming from Cutler's public comments about the upcoming trial in which a common theme emerged: Gotti would be vindicated again; the prosecutors were a ‘sick and demented lot’; and the government's tapes were ‘snippets deliberately taken out of context.’”46 Other statements Cutler made to the media included:47

 That the government had “thrown the Constitution out the window”

 He mocked the government's witnesses as “bums”

 Accused the government of suborning perjury

 He praised Gotti for his loyalty, integrity, and honesty, denying the existence of the mob

 Compared the prosecutors to Senator Joseph McCarthy

 Accused the government of persecuting Gotti

The Court had made it clear to Cutler it did not want the case “tried in the media,” he ultimately found himself in the criminal justice system due to his disregard of the Court’s order.

b. Impact on ABA Model Rules

The Gentile Supreme Court opinion set the standard of review regarding an attorney’s extrajudicial speech and when it can be restricted. It sparked revision of the 1983 ABA Model rule 3.6.48 While the “substantial likelihood standard” was maintained, the amended rule allows an attorney a “right of reply” when there is prejudicial information in the media. The provision essentially “acts as a safe harbor within which lawyers may ‘make a limited response to particularly egregious publicity without fear of sanction.’”49 In providing this provision, the ABA envisioned a flexible sliding scale standard. In effect, “as the level of prejudicial publicity increases, the

44 Cutler, 58 F.3d at 829. 45 Id. at 831. 46 Id. 47 Id. at 830. 48 43 UCLA L. REV. at 1323; Loretta S. Yuan, Gag Orders and the Ultimate Sanction, 18 Loy. L.A. Ent. L.J. 629, 637 (1998). 49 18 Loy. L.A. Ent. L.J. at 638. 25 scope of response the lawyer is entitled to make will also increase.”50 The amendment recognizes the need for lawyers to respond to an adversary’s public statement.51 The rule allows lawyers to disseminate information to the media, which satisfies the First Amendment’s right to free speech, but also places substantial limits on lawyers’ speech, ensuring defendants’ right to a fair trial under the Sixth Amendment. After Gentile and the ABA’s amendment of the trial publicity rule, many states followed suit.

ii. Other Restrictions on Attorney Speech

Attorneys are also bound by rules requiring the truthfulness of statements. New York’s rule 4.1 provides: “[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”52

Aside from the ethical rule restrictions placed on extrajudicial speech, attorneys can be barred from speaking about the case outside the courtroom entirely with a court issued gag order. Gag orders, when followed, bar individuals or parties from disseminating information about the case outside the courtroom.53 Although gag orders can be issued to the press and/or trial participants (attorneys, parties and witnesses), courts will usually issue gag orders to trial participants because of First Amendment concerns regarding attempting to moot the press.54 Gag orders can be broad or specific as to parties and information they apply to. If an individual under a gag order does make a statement, then the judge must then determine on a case-by- case basis if each particular statement was in violation of the order.55

iii. Repercussions Inside the Courtroom

A trial court’s concerns about publicity may affect all attorneys involved in the case. See United States v. Tijerina, 412 F.2d 661, 663, 666- 667 (10th Cir. 1969) (upholding a contempt order arising from speeches made by defense attorneys at a professional conference; the court finding that a reasonable likelihood of prejudicial news could have been disclosed at conference; thus threatening the empaneling of an impartial jury); see also Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035-1039 (1991); Levine v.

50 Id. 51 18 Loy. L.A. Ent. L.J. at 637; 43 UCLA L. REV. at 1356. 52 N.Y. RULES OF PROFESSIONAL CONDUCT 4.1. 53 18 Loy. L.A. Ent. L.J. at 633. 54 Id. 55 43 UCLA L. REV. 1363. 26 United States Dist. Ct. for Cent. Dist., 764 F.2d 590, 594-595, 600-601 (9th Cir. 1985) (restraining order in espionage case was not unlawful prior restraint on press, as it neither denied media access to any proceeding, nor barred media from disseminating information it obtained; order was based on serious and imminent threat to justice, and alternatives to restraining order would be ineffective or counterproductive); but see In re Application of New York Times Co., 878 F.2d 67, 68 (2d Cir. 1989) (vacating district court order barring defense attorney from speaking to press from jury selection until verdict; no showing of prejudice from statements to press, or that statements were likely to be made at all).

If a court decides media coverage or attorney statements have prejudiced the case they may set aside a conviction. In general, four factors are critical as to whether a court will exercise its supervisory power and set aside a conviction: (1) the timing of the statement; (2) the relationship of the prosecutor to the criminal trial; (3) the prominence of the public statement; and (4) the relationship of the published views to the issues in the prosecution. United States v. Coast of Maine Lobster Co., 538 F.2d 899, 902 (1st Cir. 1976).56

iv. Zealous Representation

Attorneys should be well versed in the limits on their speech and repercussions from media coverage so they know what they can say when and if it becomes necessary. Zealously defending your client may entail the need to speak out to the media; “lawyers owe a duty of zealousness to their clients and should not be denied an avenue to advocate their clients' causes without strong reason.”57 While a lawyer should be cautious not to violate a Court order or ethical rule, an overly cautious approach may be detrimental to the client's case because the attorney will “unnecessarily limit or forego contact with the media for fear of discipline.”58 Being well versed in the rules allows an attorney to confidently make acceptable statements that advocate for their client’s case and address unfavorable media reports. D. Statements to the Press (cont.)

Whenever appropriate in light of the issues or notoriety of the case, the court retains the power to instruct counsel not to make extrajudicial

56 See also Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir. 1980) (where state and local officials made defamatory comments to the media, i.e., that practically plaintiff’s entire inventory consisted of stolen property; the injury to plaintiff’s personal and business reputations constituted a deprivation of a liberty interest). 57 43 UCLA L. REV. at 1329. 58 Id. at 1362. 27 statements relating to the matter during the course of the trial.59 See Sheppard v. Maxwell, 384 U.S. 333, 356-360 (1966) (recognizing that prosecutors’ statements in the period approaching trial shall be made only on the infrequent occasion when circumstances absolutely demand a disclosure of information, and shall only include information which is not clearly prejudicial).

A trial court’s concerns about publicity may affect all attorneys involved in the case. See United States v. Tijerina, 412 F.2d 661, 663, 666- 667 (10th Cir. 1969) (upholding a contempt order arising from speeches made by defense attorneys at a professional conference; the court finding that a reasonable likelihood of prejudicial news could have been disclosed at conference; thus threatening the empaneling of an impartial jury); see also Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035-1039 (1991); Levine v. United States Dist. Ct. for Cent. Dist., 764 F.2d 590, 594-595, 600-601 (9th Cir. 1985) (restraining order in espionage case was not unlawful prior restraint on press, as it neither denied media access to any proceeding, nor barred media from disseminating information it obtained; order was based on serious and imminent threat to justice, and alternatives to restraining order would be ineffective or counterproductive); but see In re Application of New York Times Co., 878 F.2d 67, 68 (2d Cir. 1989) (vacating district court order barring defense attorney from speaking to press from jury selection until verdict; no showing of prejudice from statements to press, or that statements were likely to be made at all).

IX. Your Legal Advice Can Get You Indicted A. I previously discussed cases that involved lawyers who were indicted for providing legal advice with respect to synthetic cannabinoids. In a United States District Court, Western District of Louisiana case, the indictment alleged, in pertinent part:

“Retail Compliance Association (RCA) was incorporated in Louisiana by DANIEL JAMES STANFORD. RCA’s Articles of Incorporation list DANIEL JAMES STANFORD as the Director and DANIEL PAUL FRANCIS as the President. Through the RCA, DANIEL JAMES STANFORD and DANIEL PAUL FRANCIS trained, advised and instructed the individual franchise owner of CUROUS GOODS L.L.C. and their employees, on how to store, display and sell the “Mr. Miyagi” products, how to detect and evade law

59 See generally Paul C. Reardon, “The Fair-Trial Press Standards, 54 A.B.A.J. 343 (Apr. 1968). 28 enforcement, and how to respond to customers who asked questions about how to use the “Mr. Miyagi” products and/or the physiological effects of the “Mr. Miyagi” products.”

The hearing ended with the U.S. District Judge handing down a 10 year and one month sentence. Stanford was convicted by a federal jury on 13 various money laundering and drug trafficking charges. Unlike his co- conspirators, Stanford was the only defendant to fight his case until the end, maintaining his innocence throughout. And aside from his fellow attorney and co-conspirator Barry Domingue- who sadly took his life shortly before the start of the second day standing trial- Stanford, out of the seven remaining conspirators, is the only defendant who didn’t cop a plea deal with federal prosecutors in exchange for less time.

And that is very likely the reason why Stanford will be spending just as much time in prison as Drew Green and Tommy Malone, the only other co- conspirators to receive 10-year sentences, despite their having played much bigger roles in the overall conspiracy. Even Richard Buswell, the owner of Curious Goods at the time of the conspiracy, will serve less time, at least as far as the Curious Goods conspiracy is concerned. Buswell received a sentence two years shorter than Stanford’s — by a year and four months — but in the long-run, it’ll all even out as Buswell was also sentenced last year in an unrelated federal case on charges of securities fraud, adding another 126 months to his total time behind bars.

Patrick Flanagan, “10-Year Sentence for Daniel Stanford,” THE IND, available at http://theind.com/article-19926-10-year-sentence-for-daniel-stanford.html (Jan. 15, 2015).

B.

Jacksonville Florida lawyer, Kelly Mathis, was convicted and sentenced to six years in prison for helping establish a $300 million gambling operation disguised as Internet cafés to benefit a veterans’ charity. The veteran group ran Internet cafes which allowed veterans to purchase prepaid cards to access the Internet and play games such as “Captain Cash” and “Lucky Shamrocks.” Winners could get more money put on their prepaid card or turn it in for cash. Mathis and his law firm, who made about $6 million for their role, claimed the cafés were businesses where patrons could use prepaid cards to purchase Internet time. The Government claimed, however, that most were playing slot machine games on the computers. Furthermore, the organization had only donated 2% of the money they made to charity. Mathis’s 103 count conviction included possession of slot machines, helping to operate a lottery and racketeering. The scheme led to 57 other arrests 29 and the resignation of Florida’s lieutenant governor, Jennifer Carroll, who worked as a consultant for the veterans group. Florida has also put a ban on similar “Internet cafés.”

Mathis was shocked by the verdict, stating after his conviction, “I gave legal advice as an attorney, that’s all I did. Attorneys all over the nation need to be very afraid when six years after you give legal advice, somebody disagrees with that legal advice and they convict you of a crime.”

Mathis remains out on bond, waiting for appeal. His attorney hopes the appellate court will overturn Mathis' conviction and grant him a new trial based in part on their argument the judge was wrong in denying them the ability to present evidence to the jury. The evidence they hoped to present would have involved calling witnesses whose testimony would have supported Mathis’s argument that the cafes were operating legally.

Debra Cassens Weiss, “‘Shocked’ lawyer says he was convicted in gambling scheme for merely giving legal advice,” ABA JOURNAL, available at http://www.abajournal.com/news/article/shocked_lawyer_says_he_was_convic ted_in_gambling_scheme_for_merely_giving_ (Oct. 15, 2013).

Mike Schneider, “Attorney in Florida Gambling Scheme Found Guilty,” ABC NEWS, available at http://abcnews.go.com/m/story?id=20549081&sid=81 (Oct. 12, 2013).

Jennifer Waugh, “Kelly Mathis Maintains Innocence on Internet Café Gambling Charges,” NEWS FOR JAX, available at http://www.news4jax.com/news/kelly-mathis-claims-hes-innocent-of- gambling-charges/31521356 (Feb. 27, 2015). We have previously discussed the grave dangers associated with hastily responding to a claim of ineffective assistance.

A mere claim of ineffective assistance, without more, does not act as an automatic waiver of the attorney/client privilege.

You must wait for either a signed waiver from your former client, or a final court order.

In United States of America v. Graham (WDNY 01/03/2014), the Government mistakenly thought that the motion for ineffective assistance waived the attorney/client privilege; but the Court held as follows:

“TEXT ORDER as to Kenneth Graham: The Government’s motion [64] for an order compelling defendant Graham’s prior defense counsel to provide an affidavit in response to defendant’s motion

30 for a new trial is denied, without prejudice. Without citation to legal authority, the Government’s motion sought a blanket order instructing defense counsel to file “an affidavit which addresses the factual allegations of defendant”, which would compel prior defense counsel to disclose matters subject to attorney-client privilege. The Government shall renew its motion to compel, on or before January 10, 2013, and shall provide supplemental filings setting forth: applicable law; each of the specific allegations of defendant Graham which it contends waive the attorney-client privilege and for which its seeks an order compelling prior defense counsel to respond; and, the nature of the responses the Government contends are required by prior counsel to allow the Government to address defendant Graham’s motion for a new trial. The Government is also instructed to order a transcript of the proceeding held in this matter on January 16, 2013.

In United States of America v. Rogozin (WDNY 01/28/2014), the Court issues the appropriate order:

“The Court deems the attorney-client privilege to have been waived as to any communication pertinent to the claims raised in this motion….”

X. A Promise to Enforce is Not Binding – When a Problematic Zoning Ordinance is Presented

When a problematic zoning ordinance is presented, a city attorney’s promise not to enforce the ordinance is not a defense to that ordinance or binding. Courts generally disfavor contracts in which a municipality agrees to ignore its own codes or ordinances.

League of Residential Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052 (9th Cir. 2007):

In League, the Court of Appeals held that the district court could not approve a settlement agreement that authorized the City to disregard its own zoning ordinances. Here, an Orthodox Jewish congregation applied for a condition use permit to operate a synagogue in an area zoned solely for residential use. The proposition was objected and eventually denied by the City of Los Angeles, after which the congregation filed a federal lawsuit alleging violation of rights. While the lawsuit was pending, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Seeking 31 to avoid further litigation, the City entered into a settlement agreement that allowed the Congregation to operate a synagogue under certain conditions.

By entering into the settlement agreement the City granted a conditional use right without first giving affected persons notice and an opportunity to be heard, thereby violating state law. A settlement agreement cannot override state law absent a specific determination that federal law has been or will be violated. The court further went on to note that “[m]unicipalities may not waive or consent to a violation of their zoning laws, which are enacted for the benefit of the public” and that “any such agreement to circumvent applicable zoning laws is invalid and unenforceable.”

Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172 (2d Dist. 2006):

A contractual exemption from an element of the city's zoning is indistinguishable from the exemptions deemed condemned by case law. Moreover, these contractual exemptions resembles a variance. Such departures from standard zoning, however, by law require administrative proceedings, including public hearings, followed by findings for which the instant density exemption might not qualify. Both the substantive qualifications and the procedural means for a variance discharge public interests. Circumvention of them by contract is impermissible.

Hartman v. Buckson, 467 A.2d 694 (Del. Ch. 1983):

In Hartman, action was brought to enjoin any compliance with agreement between developer and town allowing for construction of townhouses in violation of town zoning ordinance. There, the court that by enacting zoning ordinance, the town did not comply with statute by giving at least 15 days' notice prior to holding of public hearing on plan or provide for publication of notice in local paper, nor did it comply with its charter provision requiring posting of proposed ordinances in two public places, and thus zoning ordinance was invalid.

XI. Ethics and Litigation A. General Obligation to Report Professional Misconduct

Deciding to report professional misconduct can be technically and emotionally taxing.

According to Rule 8.3 of the ABA’s Model Rules of Professional 32 Conduct, “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” As written, Rule 8.3 imposes a general obligation on all attorneys to report the professional misconduct of their peers. Most notably, however, the provision does not include any guidance or exceptions to this general obligation. As a result, attorneys are often hesitant to invoke their duty when faced with a set of precarious circumstances.

A set of precarious circumstances is certainly evident in the case of Cozzens v. City of Lincoln Park. According to Judge Hluchaniuk’s report and recommendation, Lynn Geist was liable for sanctions under the Metz test. As an attorney for the proposed intervenor, Geist sought to suppress depositions that would inevitably disclose material information. Following discovery of her obstruction, the petitioners brought a joint motion for sanctions against Geist. In effect, both the court and opposing counsel were well aware of Geist’s professional misconduct. Such a scenario begs the question:

In light of the fact that the Court has made rulings in that case, does opposing counsel still have an obligation to disclose Geist’s misconduct under Model Rule 8.3?

The ABA’s comment to Rule 8.3 notes that “[a] measure of judgment is…required in complying with the provisions of this Rule.” Accordingly, the Rule requires attorneys to weigh the benefits of reporting professional misconduct on a case-by-case basis. As the ABA’s comment suggests, “[a]n apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.” ABA MODEL RULE 8.3 cmt. (“The term ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”)

In addition to the foregoing situation, several states have addressed circumstances under Rule 8.3 that may be unfamiliar to ‘reporting’ attorneys. For example, in a Rhode Island case, an inquiring attorney learned that the former counsel of his client “had embezzled a substantial amount of the clients’ money.” In re Ethics Advisory Panel Opinion No. 92-1, 627 A.2d 317, 318 (1993). The client, however, requested that the inquiring attorney refrain from disclosing the embezzlement. See id. According to the Ethics Advisory Panel, “absent a confidentiality issue, it is clear that the inquiring attorney [was] under an ethical obligation to report the embezzlement and indeed [was] subject to discipline if the inquiring attorney failed to report the embezzlement.” Id. at 321. The Panel, however, found that “the inquiring attorney’s knowledge of [the embezzling attorney] was confidential

33 information because the inquiring attorney learned of the embezzlement during the course of his representation of a client.” Id. at 322. In effect, the inquiring attorney’s obligation to report the misconduct was superseded by his duty of confidentiality. See id. at 323.

An attorney in Louisiana, on the other hand, was publicly reprimanded for his failure to disclose professional misconduct. In re Riehlmann, 891 So.2d 1239, 1249 (2005). The attorney in Riehlmann learned that his colleague “had suppressed exculpatory blood evidence in a criminal case he prosecuted while at the District Attorney’s Office.” Id. at 1241. However, the attorney failed to disclose this information until five years later when the criminal defendant was set to be executed. See id. The court determined that while the attorney’s “conduct was merely negligent,” his “actions violated the general duty imposed upon attorneys to maintain and preserve the integrity of the bar.” See id. at 1249. B. The Definition of Professional Misconduct has Expanded

Rule 8.4(b) of the ABA’s Model Rules of Professional Conduct reads, “[i]t is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” Over the course of my career, the definition of professional misconduct has expanded to include additional offenses and adverse circumstances.

Traditionally, attorneys could expect to be investigated for trust account issues, swindling, and lying to the courts. More recently, however, we can expect to have investigations opened for more personal matters, such as driving while under the influence of alcohol or marijuana, and leaving the scene of an accident.

Typically, when an attorney is convicted of a DWI, there are multiple factors that play into what sanctions will be imposed. In In Re Leavoy, the Louisiana Supreme Court found that an attorney who was arrested and charged with a DWI, and was too intoxicated to appear in court for a felony pre-trial hearing day, violated Rule 8.4. 130 So. 3d 291 (La. 2013). The court found that the attorney’s misconduct was likely a product of his chemical dependency, and that the attorney had taken positive steps towards rehabilitation. Considering the facts presented and the seriousness of the offenses, the court followed the board’s recommendation and suspended the attorney from practice for 2 years.

Another Louisiana attorney was suspended from practice for one year and one day after being found to have committed professional misconduct when she plead guilty to stalking and harassing an individual via the 34 telephone and a subsequent guilty plea to driving while intoxicated. In Re Katne, 15 So. 3d 52 (La. 2008). The disciplinary board found that the attorney had violated the duties she owed to the public, the legal system, and the legal profession. The board recommended, and the court agreed, that the attorney be suspended from practice for one year and one day.

A New York case, Matter of Tidwell, held that the defendant was guilty of a class E felony where, while he was intoxicated, he was involved in an accident with a bicyclist and drove away from the scene even though the bicyclist was fatally injured. 265 A.D.2d 941 (N.Y. 1999). In addition to the criminal conviction that the attorney faced, he was immediately disbarred.

Possession of drugs and drug paraphernalia has also been a reason for sanctions. In re Clark, another Louisiana case, held that an attorney’s routine purchasing, possession and use of marijuana were intentional violations of the duties owed to the public and legal profession. 25 SO. 3d 728 (La. 2009). There, the attorney was found to be in possession of marijuana, other drugs, and drug paraphernalia after he had been caught distributing marijuana to his friend, who also happened to be a client. Following the recommendation of the disciplinary board and hearing committee, the attorney was suspended from practice for two years.

In a similar drug offense in Wisconsin, similar sanctions were imposed. In In re Disciplinary Proceedings Against Inglimo, the attorney was charged with possession of THC, as well as his use of THC with clients. 740 N.W.2d 125 (Wi. 2007). It was alleged that one of the clients who the attorney had engaged in illegal activities with was a minor. The court concluded that because the attorney showed a disturbing pattern of disregard for the laws of the state and his legal obligations as an attorney, a three-year suspension was necessary to protect the public.

If attorneys’ personal matters completely outside of their attorney- client relationships can be encompassed in professional misconduct, certainly those matters within their attorney-client relationship will fall within professional misconduct. For instance, a Florida attorney was completely disbarred for allegedly having sexual relationships with those she defended, and using illegal drugs.60

In United States v. DeLaura, the defendant’s attorney had an alleged sexual relationship with the defendant’s mother.61 While defense counsel refused to admit or deny the allegations, the possible conflict of interest allowed the defendant to challenge the final judgment, and ultimately lead 60 Ron Dicker, Lawyer Disbarred for Allegedly Getting Frisky with Inmates, Drug Use, HuffPost Crime (July 9, 2018 9:43 AM), https://www.huffingtonpost.com/entry/lawyer-disbarred-for-getting-frisky- with-inmates-drug-use_us_572b4e76e4b016f37894cba5. 61 858 F.3d 738, 740 (2d Cir. 2017). 35 the Court to allow collateral review.62

An attorney from Western New York was censured for arranging legal services in exchange for sex. 63 A censure is a public condemnation, not as harsh as a suspension. The attorney canceled the agreement before it was consummated, avoiding more serious repercussions from the Grievance Committee of his bar.64 However, he did plead guilty to “loitering for the purposes of prostitution”, and was sentenced to a one-year conditional discharge with community service.65

On a different note, a Staten Island attorney had his bail revoked when he sent a letter inspired by the show “Game of Thrones” to a potential witness in his case.66 He (the attorney) was on trial for money laundering and fraud, and claims to have sent the letter out of his love for the show, not with the intention of making a threat.67 However, the presiding judge found the letter to be “threatening on its face” and revoked the attorney’s bail.68

Even attorneys’ use of profane language, and acting “discourteous” in court has received some attention as of late. Attorney John Parrinello was suspended from practice for 180 days by the U.S. District Court for the W.D.N.Y. 69 The Court justified its suspension by stating he engaged in “undignified and discourteous conduct that disrupted proceedings” before the Court.70 While the suspension remained in effect in U.S. District Court, the attorney appealed the suspension in New York State Supreme Court. 71 New York State Supreme Court, Appellate Division ordered a shorter suspension, stating that 180 days was harsh. 72

Another court in Akron, Ohio stated that an attorney’s use of profanity towards the opposing counsel was enough to constitute criminal contempt of court. 73 The judge, however, decided that a public admonishment was more

62 Id. 63 Melinda Miller, Lawyer Censured for Offering Legal Services in Exchange for Sex; Cheektowaga man gets conditional discharge, The Buffalo News (March 18, 2016 7:19 PM) 64 Id. 65 Id. 66 Andrew Denney, Judge Revokes Bail for SI Lawyer Who Sent “Game of Thrones”- Inspired Letter to Witness, New York Law Journal (July 9, 2018 10:32 AM) https://www.law.com/newyorklawjournal/2018/06/06/judge-revokes-bail-for-si-lawyer-who-sent-game-of-thrones- inspired-letter-to-witness/ 67 Id. 68 Id. 69 In re Parrinello, No. 15-MC-6007, 2016 WL 270920, *8-9 (W.D.N.Y., January 22, 2016). 70 Id. 71 Id. 72 Id. 73 Eric Heisig, Federal Judge Admonishes Attorney for Cursing at Prosecutor, Cleveland.com (Jul. 6, 2018 4:16 PM), 36 appropriate because the statements “did not impede the administration of justice.”74 The attorney himself, felt the fact that a contempt hearing was even held was harsh, stating: “This process of a contempt proceeding started against me because a deputy who transports criminals . . . acted as if he was traumatized by hearing curse words.” 75 The attorney went on to say profanity is commonplace in the legal profession amongst criminal defense attorneys and prosecutors. 76

Finally, defense attorney Bob Hinton avoided any sanctions when he sent a text to a tabloid, which contained information possibly protected by attorney- client privilege.77 The information pertained to his client and was accidently sent to the news source.78

XII. First Amendment Right to Record the Police

In 2017, the Third Circuit held that Americans have a constitutional right to film on-duty police officers. While this is not the first decision of its kind, it is significant because it adds to the number of states which have such a rule. 79 The landmark decision for the Third Circuit was Fields v. City of Philadelphia, but the First, Fifth, Seventh, Ninth, and Eleventh Circuits have issued similar rulings.80 The Third Circuit’s decision “solidifies a growing consensus among the federal appeals courts on this nascent issue”, putting to rest some of the contention around the issue. 81 However, recording police may still be restricted as described above, when it interferes with their duties.

A New York journalist, Doug Higginbotham, was detained for four hours and charged with one count of disorderly conduct after filming an arrest at an Occupy Wall Street protest. Prior to Higginbotham’s detention, he had climbed onto the top of a telephone booth for a better vantage point from which to film. The arrest that Higginbotham happened to catch on camera resulted in a significant injury to the person being arrested.

As more and more citizens have become equipped with smart phones https://www.cleveland.com/court-justice/index.ssf/2016/05/federal_judge_admonishes_attor.html 74 Id. 75 Id. 76 Id. 77 Johnny Manziel’s Lawyer Tells AP in Text He Doubts Embattled QB Can Remain Sober, Associated Press, USA Today (July 9, 2018 10:54 AM), https://www.usatoday.com/story/sports/nfl/2016/06/24/text- lawyer-seeks-plea-deal-doubts-manziel-can-stay-clean/86354898/ 78 Id. 79 Matt Ford, A Major Victory for the Right to Record Police, The Atlantic (July 10, 2018 6:45 PM) https://www.theatlantic.com/politics/archive/2017/07/a-major-victory-for-the-right-to-record-police/ 533031/ 80 Id. 81 Id. 37 that yield readily accessible cameras, the rate of police misconduct caught on camera has steadily risen. This trend prompts the question – do citizens have a right to record police activity?

This is a question that the Supreme Court and multiple circuit courts have yet to address. All of the circuit courts that have, however, have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions.

In American Civil Liberties Union of Illinois v. Alvarez, the 7th circuit invalidated a state eavesdropping statute makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. 679 F.3d 583, 608 (7th Cir. 2012). Here, a Chicago-area organization was planning to implement a “police accountability program,” which included a plan to openly make audiovisual recordings of police officers performing their duties and speaking at a volume audible to bystanders. Id. at 586. The group was concerned that participants would be prosecuted under the state eavesdropping statute and moved for injunctive and declaratory relief which would have barred the state from enforcing the statute. The court granted relief, reasoning that the government's interest in protecting conversational privacy is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Id.

The 1st Circuit similarly invalidated a state wiretap statute when it was applied to the recording of a police arrest. Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common. 655 F.3d 78 (1st Cir. 2011). The charges against Glik, which included violation of Massachusetts's wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought a suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments. The court concluded that there is “a constitutionally protected right to videotape police carrying out their duties in public,” and that this right is on that is clearly established. Id. at 72. Quoting the Supreme Court, the court observed that, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978).

Again in 2014, the First Circuit recognized the First Amendment right to record. In Gericke v. Begin, the court followed the rationale laid forth in Glik, and again recognized the clearly established First Amendment right to

38 record police activity, when plaintiff attempted to audio record the police officers interaction with another person. 753 F.3d 1 (1st Cir. 2014). Unbeknownst to the officer, the camera was not properly functioning and was not recording. Knowing this, the plaintiff still aimed the camera at the officer when she returned to her vehicle. The police then filed criminal complaints against plaintiff for disobeying a police officer, and seized her camera. Because the subject of filming was “police carrying out their duties in public,” the filming of the traffic stop was protected by the First Amendment. See also Crawford v. Geiger, 996 F.Supp.2d 603 (N.D. Ohio 2014) (holding that, on a matter of first impression for the Sixth Circuit, there is a First Amendment right for the general public to openly film police officers carrying out their duties).

A major purpose of the First Amendment is to protect the free discussion of governmental affairs. “This protection extends to the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). The argument can, and has been made that the activities of police officers are matters of public interest, and that the filming of these activities meets the requirements tobe protected speech. See Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a “First Amendment right to film matters of public interest”; the plaintiff was filming the activities of police officers ata protest).

The Southern District of New York’s decision in Higginbotham v. City of New York further delved into the First Amendment rights that specifically belong to a journalist. It is clearly established that the First Amendment protects photography and film that are “expressive” in nature. While videotaping an event is not, per say, an expressive activity, when it is preformed lawfully by a professional journalist who intends, at the time of recording, to disseminate the product of his work, it is protected. No. 14–cv– 8549, 2015 WL 2212242, at *7 (May 12, 2015).

The decision by the New York district court did not deviate far from the decision of other district courts. In 2006, the District of New Jersey denied summary judgement in a First Amendment retaliation claim involving a plaintiff who was arrested for repeatedly photographing a police officer. Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504 (D.N.J. 2006). There, plaintiff was a self-proclaimed “citizen activist” who took it upon herself to monitor the activities of the police force and mayor. When she believed that the mayor and an officer were involved romantically, she began monitoring them to ensure that there were no conflicts of interest, nepotism and preferential treatment occurring. Id. at 507. Her monitoring consisted of photographing the two in multiple settings on a disposable

39 camera. The court found there that the plaintiff had presented sufficient evidence to show that her speech was protected - that she was a concerned citizen who at times spoke her mind to officials and other citizens about her concerns regarding the official conduct of the police department and the mayor. Id. at 512-13. See also Alliance to End Repression v. City of Chicago, No. 74 C 3268, 2000 WL 562480, at *21 (N.D. Ill. May 8, 2000) (holding that “taking photographs of the police” was “First Amendment conduct.”).

Another court that has addressed the issue is the district court in the Eastern District of Pennsylvania. In Robinson v. Fetterman, the plaintiff became concerned about what he believed was an unsafe manner in which Pennsylvania state troopers were conducting truck inspections. After receiving authorization from a private landowner, plaintiff began videotaping the state troopers from a distance of approximately 30 feet. 378 F. Supp. 2d 534 (E.D. Pa. 2005). Plaintiff was detained and booked by the officers, and was later charged for harassment. At trial, plaintiff alleged a violation of his right to free speech under the First Amendment, specifically, the “right to videotape [state troopers] and thus speak out on issues of public concern.” The court held that the plaintiff’s “recording the activities of Pennsylvania state troopers as they went about their duties on a public highway” was protected under the First Amendment. Id. at 541.

The right to photograph and film police conduct, while permitted, is restricted in some situations. If the recording is occurring in a public space, far enough away from the scene so as to not interfere with police activity, it is typically protected. In Connell v. Town of Hudson, the plaintiff photographed the scene of an accident from vantage points between twenty- five to forty feet away. 733 F. Supp. 465, (D.N.H. 1990). Police repeatedly told him to stop photographing, and after repeated requests and threats of arrest by the police, plaintiff ceased taking photos. Plaintiff then asserted in court that the conduct of the police was a violation of this First Amendment. The New Hampshire district court concluded that this argument had merit, and that the police’s interest in securing an accident scene did not outweigh the plaintiff’s right to photograph the scene. Id. at *21.

In addition to a limitation being placed on the right to record police activity when it interferes with the activity, it also does not apply in particularly dangerous situations, if the recording is surreptitious, if it’s done by subject of the police activity, or if the police activity is part of an undercover investigation. Higginbotham, at *10. See also Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634 (D. Minn. 1972) (recognizing the right of a newsman to film a crime scene from any location to which the general public had access, unless he unreasonably interfered with or endangered police).

40 The recognition of this right is differentiated from situations where the person recording the activity is a participant of the events. The court in Higginbotham specifically indicated that their decision differentiated from those where the plaintiff was affiliated with and in close proximity to the person being stopped or arrested by the police. Higginbotham, at 10. Compared to Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) and Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009), Higginbotham had no relation to the arrestees he was filming, and was at a remove from the arrest. In Kelly, the plaintiff was a passenger of the person stopped, and in Szymecki, the plaintiff was the wife of the arrestee. In addition, these two cases met a portion of the remainder of the limitations placed upon the right. In Kelly, the filming occurred at a traffic stop, which has been deemed by the court to be an “inherently dangerous situation” and the filming was done surreptitiously. In Szymecki, the person being arrested was armed and was defying a police order.

Higginbotham’s conduct led the court to conclude that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. The actions taken by the police after Higginbotham’s recording occurred met the elements of a retaliation claim, for which the City’s motion to dismiss was denied. XIII. Post Snowden Electronic Confidentiality- Beware the Invasion of “Bots” and “Malware.”

I have previously discussed the fact that easily found research indicated that the NSA, CIA, FBI, Pentagon, etc. were collecting, preserving and sifting through all electronic communications. Snowden confirmed that fact.

We have moved way beyond the Snowden age and have to consider the repercussions of the invasion of bots and malware. A. Beware the Age of the “Bot” and “Malware”

We are now in the “bot” and “malware” age – think the “Matrix” movie when you consider privacy on the internet or with respect to the privacy that you think that you may have in relation to your internet connections. Be very cautious of ANY open wi-fi: ex., airplanes, hotels, coffee shops. Do NOT download “helpful” software: ex., “updated” video viewers. Trojan malware lurks.

41 Bots are internet devices that run automated tasks. Bots not only perform internet tasks without the direction of a human, but they also do so much quicker. While the development of this new technology is great, hackers have been utilizing it to harm vulnerable servers and do their job for them. A recent study done by the firm Cybereason showed that bots can scan networks to see which servers are connected, steal and dump credentials, and create new user accounts in the system being hacked, so human hackers can sign in on the system.82 These bots can do all this in a matter of seconds, and gain access to personal data and client data without hacker guidance. Cybereason was able to closely analyze the bots working, because the firm set up a fake business website as bait, and observed it. 83 The firm noted that the bots hacked their fake business’s website and then went quiet for a couple days, before human hackers attempted to come in behind the bots and sift through the data. The hackers took four gigabytes of fake data in total.84 While attorneys need not necessarily be technology savants, it is important that they are aware of new technological developments, such as these bots, which can compromise their client’s data. B. “Cloning/Spoofing” Email Addresses

You really do not know who you are communicating with. You don’t, sorry. That is why banks, credit card companies and others use verification numbers, confirmation texts to your cell phones, etc. Fake Gmail accounts run rampant, including in the legal community. The practice of impersonating another email address to make an email appear as though it is being sent from a friendly source, is commonly referred to as “spoofing”. Spammers and hackers spoof others’ email addresses to gain access to your email so they can send you advertisements that are paid for, or so that they can trick you into giving up your private login information. 85 Email users should be very careful whom they auto respond to. A phisher could send out a mass-email for instance under a spoofed address, and if you have your auto-respond on to all parties, your email will send a response back to the spoofed email account. Now the spammers have confirmed/verified your address and can continue sending you emails and phishing attempts. Spoofed emails can have more malicious intent behind them as well. Often the email will come from what looks like a trusted source (maybe a website you do business with, or purchase things from), and it will contain a link cleverly disguised as a link to the very website that you are familiar with. 86 In reality though, that link will take you to a duplicate website that looks very

82 “Lazy Hackers” Turn to Automated Attack Tools, BBC News (July 10, 2018 5:20) https://www.bbc.com/news/technology-43788337 83 Id. 84 Id. 85 Paul Gil, What is Email Spoofing? How Does Spoofing Work? Lifewire (July 11, 2018 3:08) https://www.lifewire.com/what-is-email-spoofing-2483501 86 Id. 42 similar to the one you know, and it will call for your username and password.87 If you enter it, now the spammers/hackers not only have your email address, but they also have your private info. They can use it on that very website for monetary gain, or try to use it on other websites for profit.88

These fake emails can actually be created quite easily with basic email software (Gmail, Outlook, etc.), and their only distinguishing factor is their IP address. 89 They can be created by the “bots” discussed above as well; a human does not need to sit behind a computer anymore and falsify your friend’s or business partner’s email address. 90 The best was to defend against this is always be skeptical and vigilant. If an email seems weird, do not reply, and certainly do not open any attachments, as they could contain a virus. 91 Some common examples of phishing attempts to be aware of are investment opportunities, lottery opportunities, and job opportunities. 92 C. “Stingray” – Technology

“Stingray” technology is a great example of the artificial nature of our electronic communications.

Stingrays, also known as “cell site simulators” or “IMSI catchers,” are invasive cell phone surveillance devices that mimic cell phone towers. Stingrays send out signals to trick cell phones in the area into transmitting their locations and sharing private information, including exact locations as well as numbers of those calling or texting and receiving calls or texts. The Stingray device is described as a suitcase-size metal box, costing as much as $400,000 each, with the federal government covering the cost for police departments that say they need a Stingray to investigate potential local terrorists. However, this technology has allowed police to spy more freely on those they suspect of drug crimes and other non-terrorism activities.

If the stingray is within the cell phone's signal range, the stingray measures signals from the phone, and based on the cell phone's signal strength, the stingray can provide an initial general location of the phone. By collecting the cell phone's signals from several locations, the stingray can develop the location of the phone quite precisely. Jennifer Valentino–DeVries, “Stingray” Phone Tracker Fuels Constitutional Clash, Wall Street Journal, Sept. 22, 2011, available at http://online.wsj.

87 Id. 88 Id. 89 Id. 90 Id. 91 Id. 92 Paul Gil, What Phishing and Email Scams Look Like Lifewire (July 11, 2018 3:29) https://www.lifewire.com/what-phishing-and-email-scams-look-like-4064080 43 To buy a stingray device, law enforcement officials must sign a nondisclosure agreement preventing them from saying almost anything about the technology. The F.B.I. has claimed that any disclosure about the technology could allow criminals and terrorists to circumvent it.

After the Supreme Court’s decision in U.S. v. Jones, which prohibited police trespass by use of a GPS tracking device on a suspect’s vehicle without a warrant, this technology has proven to provide a different avenue to obtain the same results. 132 S. Ct. 945 (2012). However, the use of these devices is not undisputed.

This past term, the Supreme Court ruled in Carpenter v. United States that the government generally must obtain a warrant supported by probable cause before acquiring cell site location information (CSLI) from a carrier. 93 Due to the revealing nature of CSLI and its “depth, breadth, and comprehensive reach”, the Supreme Court held that obtaining it is considered a search as defined by the Fourth Amendment, regardless of the fact that the data is compiled by a third party. 94 The Court held that CSLI is subject to a reasonable expectation of privacy. The Court also held “that the “third-party doctrine,” which the Court has used in various contexts to conclude that individuals do not have a reasonable expectation of privacy in information disclosed to third parties, does not apply to the disclosure of CSLI to wireless carriers.” 95 This ruling however, applies only to monitoring that is greater than seven days; the Court may rule differently on more acute monitoring.

One expert believes the ruling may have greater implications for companies, beyond this issue of law enforcement access, saying: “Certain claims that plaintiffs’ attorneys and consumer protection authorities may bring against companies, such as claims alleging invasions of privacy, incorporate a reasonable expectation of privacy standard.” 96 This decision could further shape the way a “reasonable expectation of privacy” is defined in Fourth Amendment jurisprudence.97

93 138 S.Ct. 2206 (2018). 94 Id. at 2223. 95 Sophie Baum, U.S. Supreme Court Holds that Historical Cell Site Location Data Is Subject to a Reasonable Expectation of Privacy, Hogan Lovells, Chronicle of Data Protection (July 10, 2018 5:53 PM) https://www.hldataprotection.com/2018/06/articles/consumer-privacy/u-s-supreme-court-holds-that-historical- cell-site-location-data-is-subject-to-a-reasonable-expectation-of-privacy/

96 Id. 97 Id. 44 D. “Big Brother” – The NSA and Snowden

The U.S. National Security Agency has essentially created a digital highway for cyberattacks by installing surveillance software on 100,000 computers worldwide. Some of this software was uploaded to computers through the use of secret technology that requires no Internet connection. According to U.S. officials, computer experts, and documents leaked by former NSA contractor Edward Snowden, this technology has been in effect since 2008.

The technology utilizes radio waves that are “transmitted from tiny circuit boards and USB cards secretly inserted in the computers.” Some of the targeted computers include those of the Chinese military; the Russian military; the “Mexican police and drug cartels, European Union trade institutions and allies such as Saudi Arabia, India, and Pakistan.”

The NSA denies using the software within the United States. Since June 2013, however, the domestic practices of the NSA have been called into question. Snowden “leaked documents outlining widespread collection of telephone metadata and email.” Such public awareness has led President Obama to propose “a series of intelligence reforms, including how the NSA operates.”

Peter Cooney, Reuters, “NSA Carves Pathway Into International Computers, New York Times Reports,” available at http://www.huffingtonpost.com/2014/01/14/nsa-international-comput... (Jan. 14, 2014).

There is no reason to believe that the NSA is telling us the truth. That is not their mandate.

On May 7, 2015, in the case of ACLU v. Clapper, the United States Court of Appeals for the Second Circuit said that Section 215 of the Patriot Act did not authorize the NSA to collect Americans' calling records in bulk, as exposed by Snowden in 2013. The decision voided U.S. District Judge William Pauley's December 2013 finding that the NSA program was lawful, and remanded the case to him for further review. The appeals court did not rule on the constitutionality of the bulk surveillance, and declined to enjoin the program, noting the pending expiration of relevant parts of the Patriot Act. Circuit Judge Gerard E. Lynch wrote that, given the national security interests at stake, it was "prudent" to give Congress an opportunity to debate and decide the matter.

Cited from Wikipedia, “ACLU v. Clapper,” available at https://en.wikipedia.org/wiki/ACLU_v._Clapper. Last modified 13 December 45 2015. E. Error Messages Used as Spies

According to documents released by Snowden, the NSA has been using the Windows Operating System to spy on the public. In short, the documents explain that error reports sent by PC user to Microsoft may also be sending these reports to the NSA.

The NSA is able to skim through the error reports with its own software. In effect, the vulnerabilities of a target’s computer are revealed for further hacking by the agency. According to some of the released documents, the NSA’s agents have even “mocked how easy the Windows error messages made their jobs.” Despite these documents, Microsoft denies that their customer’s data has been breached. “In recent months, Microsoft has attempted to assuage fears of government surveillance by fighting against any attempt by U.S. intelligence agencies to seize its foreign customers’ data under American surveillance laws.”

The Huffington Post, “NSA Uses Windows Error Messages To Spy On People,” available at http://www.huffingtonpost.com/2013/12/30/nsa_windows_n_4520514... (Dec. 30, 2013). F. “Collect Everything And Hang On To It Forever”

Speaking at a tech conference in March, Chief Technology Officer for the CIA, Ira “Gus” Hunt, described the agency’s endless appetite for data. Hunt’s talk occurred two days after it was reported that the CIA struck a $600 million 10-year deal with Amazon for cloud computing services. While Mr. Hunt didn’t address this in his talk, he frequently referenced cloud computing and the agency’s interest in analyzing the massive amount of text messages, tweets, and videos created daily.

“The value of any piece of information is only known when you can connect it with something else that arrives at a future point in time.” Hunt said. “Since you can’t connect dots you don’t have, it drives us into a mode of, we fundamentally try to collect everything and hang on to it forever.”

Hunt acknowledged that at some scale, data storage becomes impractical saying he meant “forever being in quotes” when referring to the agency’s plan.

He referenced the failure to “connect the dots” in the case of Umar Farouk Abdulmutallab, the “underwear bomber” who was able to board a 46 plane with an explosive, despite repeated indications of his intentions. A White House review found that the CIA had in its possession all of the data it needed to identify the would-be bomber, but still failed to stop him.

Matt Sledge, “CIA’s Gus Hunt on Big Data: We “Try To Collect Everything And Hang On To It Forever,” Huffington Post, available at http://www.huffingtonpost.com/2013/03/20/cia-gus-hunt-big- data_n_2917842.html (Mar. 20, 2013). G. DOJ Supports Changing “Six Months = Abandoned” Rule for E-mail

At a congressional hearing in December, the Justice Department signaled its support for changing an outdated aspect of the Electronic Communications Privacy Act (ECPA). The rule in question currently treats e- mails on a server for more than 180 days as “abandoned”, which allows them to be accessed through a subpoena, as opposed to a search warrant. Elena Tyrangiel, Acting Assistant Attorney General in charge of DOJ’s Office of Legal Policy, said there is “no principled basis” to treat e-mail that is younger than 180 days different than email older than 180 days.

Tyrangiel appeared before the Committee on the Judiciary which is examining proposed changes to the ECPA. “Acknowledging that the so- called ‘180-day rule’ and other distinctions in the SCA (Stored Communications Act) no longer make sense is an important first step,” Tyrangiel said in prepared testimony. “The harder question is how to update those outdated rules and the statute in light of new and changing technologies while maintaining protections for privacy and adequately providing for public safety and other law enforcement imperatives.”

While recent proposals have been made, there are many factors that must be taken into consideration. Efforts to update ECPA hope reflect these considerations and, at the same time, incorporate strong mechanisms that protect individual privacy and ensure appropriate judicial oversight of government access to individual’s communications.

Ryan J Reilly, “DOJ: Electronic Communications Privacy Act’s 180-Day Stored Email Rule Not ‘Principled,’” Huffington Post, available at http://www.huffingtonpost.com/ryan-j-reilly/ecpa-180-day-email- rule_b_2907846.html?view=print&comm_ref=false (Mar. 19, 2013).

U.S. House, Committee on the Judiciary. The Email Privacy Act (H.R. 699). Text from: Committee Reports. Available from: http://judiciary.house.gov; Accessed: 2/1/16. 47 H. Hacking Cell Phones After San Bernardino

In the wake of the tragic San Bernardino attack in 2015, police have been seeking ways to hack cell phones without the permission of the manufacturing company. Apple famously refused to unlock the San Bernardino shooter’s phone when police demanded they do so. However, investigators recently found a way to bypass the manufacturer and unlock an iPhone themselves. 98 The method used to bypass the phone’s security was not detailed by investigators; they would only indicate that a “forensic cellphone expert” was able to override the security.99 This breakthrough comes as investigators across the country struggle to crack encryptions on phones that may hide important evidence for criminal investigations.100

I. Data Security

Yahoo created and authorized a program that searched its customers’ incoming emails at the behest of the NSA or FBI.101 The massive company put up little resistance to the request by the intelligence agency, but many experts believed they could have challenged the request and won.102 Furthermore, experts believe this is one of the first instances where a company of this size has completely accepted a spy agency’s demand to search all emails, as opposed to conducting a more selective or restrictive search.103 It appears that hacking is not the only way that our data and information is at risk.

On a similar note, it was reported that Apple logs its users’ iMessage contacts and may share them with police.104 While the messages themselves are safe, the contacts are not. When iPhone users type phone numbers into their phone to send a text or create a contact, the Messages app sends a query to Apple Servers to determine whether the number corresponds to an Apple device (iPhone, iPad, etc.). 105 The log includes the date and time the

98 Matt Hamilton, Richard Winton, LAPD Hacked Into iPhone of Slain Wife of “Shield” Actor, Documents Show, Los Angeles Times (July 9, 2018 11:22 AM) http://www.latimes.com/local/lanow/la-me- ln-lapd-locked-iphone-actor-wife-michael-jace-20160504-story.html 99 Id. 100 Id. 101 Joseph Menn, Former Employees Say Yahoo Secretly Scanned Customer Emails for US Intelligence, HuffPost (July 9, 2018 11:45 PM), https://www.huffingtonpost.com/entry/yahoo-secretly-scanned- customer-emails-for-us-intelligence-sources_us_57f3f25be4b01b16aaff6d8a 102 Id. 103 Id. 104 Sam Biddle, Apple Logs Your iMessage Contacts-and May Share Them with Police, The Intercept (July 9, 2018 12:10 PM), https://theintercept.com/2016/09/28/apple-logs-your-imessage-contacts-and-may- share-them-with-police/ 105 Id. 48 query was sent and the user’s IP address, which could identify their location.106 This information is available to law enforcement when Apple is served with a court order.107

J. The Danger of Cyber-Attacks

In 2015, Panama-based law firm Mossack Fonseca was breached by a cyber-attack which leaked more than 11.5 million firm documents.108 This attack was one of the largest and most far-reaching law-firm cyber breaches in history. The breach led to a police raid and investigation as well as widespread political fallout. Iceland Prime Minister Sigmundur Gunnlaugsson resigned after accusations of fraud, while Spanish Minister of Industry Jose Manuel Soria resigned after the leak tied him to offshore investments in the Bahamas.109

The attack was not the result of a skilled hacker breaching high-tech firm security or an insider leaking access to the firm’s network. The attacker’s point of entry was through an exploitable weakness in Revolution Slider, a common web plug-in for blogging website WordPress.110 The weakness allowed hackers to easily gain access to Mossack Fonseca’s web server, where they could access and download data. In fact, Mossack Fonseca’s web server was not even behind a firewall, and was several months out-of-date. 111

These rudimentary security errors led to one of the most egregious and far-reaching cyber-attacks in legal history, but have also served to alert lawyers to the dangers of cyber-attacks and weaknesses in firm security. Keeping systems up-to-date, segregating sensitive information, and ensuring that basic security measures such as firewalls are in place can minimize the risk of such a massive breach.

Recent cyber-attacks have also breached several major firms in the United States. In 2016, Cravath, Swaine & Moore, one of the largest law firms in the United States, was breached by a cyber-attack. The hackers reportedly used the information gathered in the breach to make more than $4 million through illegal insider trading.112 Also reported as part of the 2016 breach

106 Id. 107 Id. 108 See Julie Sobowale, 6 major law firm hacks in recent history, ABA Journal (July 3, 2018 10:46 AM), http://www.abajournal.com/magazine/article/law_firm_hacking_history?icn=most_read. 109 See Id. 110 See Jason Bloomberg, Cybersecurity Lessons Learned From ‘Panama Papers’ Breach, Forbes (July 3, 2018 10:58 AM), https://www.forbes.com/sites/jasonbloomberg/2016/04/21/cybersecurity-lessons- learned-from-panama-papers-breach/#17a7442d2003. 111 See Id 112 See Sobowale, 6 major law firm hacks in recent history. 49 was mega-firm Weil, Gotshal & Manges. 113

In 2017, global firm DLA Piper was shut down for several days by a ransomware attack, which reportedly locked firm computers, encrypted files, and demanded payment for a key-code to regain access. 114 DLA Piper employees were left without phones and email for three full days as a result of the attack, although it is not reported that any data was stolen.115

Although the headlines are filled with attacks on large firms, small firms and even boutique firms, can be targets for cyber-attacks. As many as two-hundred cyber-attacks on U.S. law firms took place between 2016 and 2017, with 40% of the firms being unaware they had been breached.116 Many law firms are ripe targets for attack due to a lack of high-tech security and concentration of potentially sensitive data.

In recent months, two new sophisticated phishing schemes have targeted law firms and other corporate executives.117 Hackers have started to research potential targets in an effort to increase the likelihood that a person will click on a link in the email. This is known as a “spear-phishing” attack.118 The attacker’s email will likely resemble a familiar contact, such as an employee’s superior or a common client. Once the attacker obtains the employee’s credentials, they are free to launch invoice attacks, utilize the company’s email system to conduct other fraudulent transactions, and steal vendor and customer information so that other organizations can be targeted.119

The second form of attack uses stolen credentials to launch ransomware which attempts to shut down security processes and effectively hold a company’s servers “hostage.”120 Typically, these attacks are aimed at companies who would be highly motivated to get back online quickly, and thus more likely to comply with any demands made by the attackers.121

113 See Id. 114 Debra Cassens Weiss, DLA Piper is hit by ‘major cyber attack’ amid larger hack spreading to US, ABA Journal (July 3, 2018 11:18 AM), http://www.abajournal.com/news/article/dla_piper_is_hit_by_major_cyber_attack_amid_larger_hack_spreading_to_ us/. 115 Jnana Settle, 10 Law Firm Cyber-Attacks of 2017, Disrupter Daily (July 3, 2018 11:20 AM), https://www.disruptordaily.com/top-10-law-firm-cyber-attacks/. 116 Ian Lopez, DLA Piper Isn’t Alone – 40% of Law Firms Unaware of Breaches, ALM (July 3, 2018 2:17 PM), http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/08/01/dla-piper- isnt-alone-40-of-law-firms-unaware-of-breaches/?slreturn=20180603141413. 117 James L. Pray, Targeted Cyber Attacks Are Rapidly Increasing in 2019, Best Lawyers (July 13, 2019 11:15 AM), https://www.bestlawyers.com/article/targeted-cyber-attacks-increasing/2460. 118 See id. 119 See id. 120 See id. 121 See id. 50 Prevention is critical. A study conducted by IBM in 2018 found that, on average, it takes approximately six months to discover that a breach has occurred, and an average of 69 days to contain the breach.122

K. Compliance with Rule 1.6(c) and Protection from Cyber- Attack

MRPC 1.6 - Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and

122 Patrick Smith, 2 US Law Firms Among Cybercrime Victims, DOJ Says, Law.com (July 13, 2019 12:16 PM), https://www.law.com/americanlawyer/2019/05/16/2-us-law-firms-among-cybercrime-victims- doj-says/. 51 the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

The plain language of Rule 1.6(c) does not define “reasonable efforts” or what specific measures are necessary. Comment [18] does provide several factors which courts might take into consideration in determining whether a violation of Rule 1.6(c) has occurred: the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.123

Since the additions to Rule 1.6 were made in 2012, experts and commenters have discussed the appropriate security methods a lawyer must implement in order to have made “reasonable efforts” to safeguard client information.

At a minimum, commenters agree that lawyers should ensure that firm employees are instructed on topics such as: 1) the need for strong passwords containing a mix of letters, numbers, and symbols; 2) encryption of information stored on hard drives, storage devices, and transmitted via email; 3) multifactor authentication that ensures data can only be accessed if a lawyer has a password and some other form of identification; 4) understanding how to avoid phishing scams; 5) the dangers of public computers and public Wi-Fi connections; 6) the risk of file-sharing sites; and

123 ABA Rule 1.6 comm. [18]. 52 7) protecting against malware.124

Other experts suggest more extensive safeguards, including: 1) risk assessment to determine the threats to the firm’s client information; 2) appointing or naming a person or team in charge of information security; 3) employing procedures by which employees are evaluated based on compliance with policies and procedures; 4) implementing a disaster recovery and business continuity plan; 5) establishing procedures for auditing or assessing the effectiveness of firm security controls; 6) utilizing physical safeguards such as barriers, screens, and locking mechanisms for desks, offices, and filing cabinets; and 7) technical safeguards such as malware detection software, firewalls, and control of access to systems with client information through passwords or other authentication.125

Lawyers are not expected to become experts on cyber-security and every aspect of the technology utilized to aid in the practice of law. They are expected, however, to understand the risks associated with such technology, and to employ reasonable efforts to minimize the risk of inadvertent disclosure or unauthorized access to client information.

L. Model Rule 1.6, Confidentiality, and the First Amendment

Rule 1.6, on its face, is a speech restriction imposed on attorneys. It is widely accepted within the practice of law, however, that lawyers agree to give up a portion of their First Amendment rights regarding client information in order to represent clients.126 The rule is meant to “contribute[] to the trust that is the hallmark of the client-lawyer relationship.”127 If a client’s sensitive information could be the butt of a Twitter joke with the client’s name attached, clients would be far less likely to reveal sensitive information which might be critical to a lawyer’s representation.

On March 6, 2018, the ABA released Formal Opinion 480 entitled “Confidentiality Obligations for Lawyers Blogging and Other Public Commentary,” discussing the scope of Rule 1.6.128 Critically, the opinion stated that “information about a client’s representation contained in a court’s order, for example, although contained in a public document or

124 Richard B. Polony & Brendan J. McCartney, Is it Safe? Ethical Implications of Connectivity, 21 Fidelity L.J. 37, 56-58 (2015). 125 Drew Simshaw & Stephen S. Wu, Ethics and Cybersecurity: Obligations to Protect Client Data, ABA (July 3, 2018 1:28 PM), https://www.americanbar.org/content/dam/aba/events/labor_law/2015/ march/tech/wu_cybersecurity.authcheckdam.pdf. 126 See In re Snyder, 472 U.S. 634 (1985); U.S. Dist. Ct. E. Dist. of Wash. v. Sandlin, 12 F.3d 861 (9th Cir. 1993); In re Shearin, 765 A.2d 930 (Del. 2000). 127 ABA Rule 1.6 comm. [2]. 128 See ABA Formal Op. 480 (2018). 53 record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.”129

Formal Opinion 480 has been met with some criticism among proponents of First Amendment rights. Josh Blackman, an associate professor at the South Texas College of Law and specialist in constitutional law, has criticized the opinion as overbroad, stating: “[s]uch a prohibition may run afoul of the First Amendment because it controls the release of information that would not be subject to the attorney-client privilege. If it is a matter of public record, then an attorney should not have to seek his or her client’s consent to publicize it.”130 In effect, Formal Opinion 480 extends the duty of confidentiality beyond the scope of lawyer-client privileged material, as well as into the world of social media, blogging, and other public commentary. The ABA’s ethics opinions are, nonetheless, not binding court opinions.

Taken together with Rule 1.6(c), Formal Opinion 480 requires that lawyers both refrain from disclosing client information, even if it is public record, and make reasonable efforts to prevent any disclosure of such information, whether inadvertent or unauthorized. The potential infringement of First Amendment rights to freedom of speech and expression is troublesome.

The duty to make reasonable efforts to prevent disclosure of client information, including public records, creates a major problem for law firms working to tighten up security. In the past, a lawyer’s most pressing concern regarding inadvertent disclosure of data may have been leaving his briefcase behind in a taxi. Now, it is not uncommon for lawyers to have access to firm emails and other data on personal mobile devices. These devices are connected to the internet and interact with numerous third-party apps, Wi-Fi connections, as well as other mobile devices.

How far must a lawyer go to protect client data contained on a cell phone? This question was asked by the New York State Bar Association in the context of an attorney’s disclosure to border agents of a client’s confidential information.131 The opinion found that:

[B]oth Rule 1.6(c), which requires reasonable efforts to prevent … unauthorized access to clients’ confidential information, and the duty of competence under Rule 1.1, require an attorney to take reasonable measures in advance to avoid disclosing

129 Id. at 3. 130 David L. Hudson, Jr., Lawyers have enhanced duty of confidentiality when engaging in public commentary, ABA Journal (July 3, 2018, 2:37 PM), http://www.abajournal.com/magazine/article/lawyers_confidentiality_public_comment/P1. 131 See N.Y. Eth. Op. 2017-5 (N.Y. St. Bar Assn. Com. Prof. Eth.), 2017 WL 6614552. 54 confidential information in the event a border agent seeks to search the attorney’s electronic device.132

The opinion elaborated that “[t]he duty to protect client confidences from unauthorized access refers to access that is not authorized by the client.”133 This means that attorneys must “refrain from conduct, including otherwise permissible disclosures, that may result in third parties’ lawful access to a client’s confidential information without the client’s consent.”134

At what point does this ever-expanding duty of confidentiality reach the point of a First Amendment violation? Some critics believe that ABA Formal Opinion 480 already reaches into the bounds of protected free speech. With the ever-growing risk of cyber-attack and duty to protect electronically stored data, restrictions on lawyer communication, expression, and conduct through the use of technology may continue to be constrained by ethical limitations. XIV. Identifying and Handling Conflicts of Interest

a. Relevant Rules of Professional Conduct

i. MRCP Rule 1.7 - Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will

132 Id. at *2 133 Id. 134 Id. 55 be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

ii. MRCP Rule 1.8 - Conflict of Interest: Current Clients: Specific Rules

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a 56 client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas

57 involved and of the participation of each person in the settlement.

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

iii. MRCP Rule 1.9 - Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the 58 same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

iv. MRCP Rule 1.8 - Duties to Former Clients

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyer's association with a prior firm, and

(i) the disqualified lawyer is timely screened 59 from any participation in the matter and is apportioned no part of the fee therefrom;

(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and

(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d) The disqualification of lawyers associated in a firm with

60 former or current government lawyers is governed by Rule 1.11.

B. Sixth Amendment Implications

A defendant’s Sixth Amendment right to be represented by counsel of choice is one that may not be ignored lightly.135 Nevertheless the Sixth Amendment’s right to counsel also includes “a correlative right to representation that is free from conflicts of interest.”136 A conflict of interest claim is akin to an allegation of ineffective assistance of counsel due to counsel’s divided loyalties.137 The critical distinction between ineffective claims and conflict claims is that a defendant raising a standard ineffective assistance claim must prove prejudice in order to prevail,138 whereas in a conflict case prejudice is presumed where an “actual conflict” of interest exists.

Three areas of conflicts are most common: (1) multiple representation, were a lawyer’s loyalty to a defendant’s interest may be impaired by the simultaneous representation or prior representation of another client; (2) conflicts based on a lawyer’s personal interest (i.e. occasioned by finances, family members or a lawyer’s own risk of prosecution); and (3) conflicts based on the “advocate-witness rule,” where a lawyer must be disqualified from proceedings in which he/she may be called as a witness.

C. Actual verses Potential Conflicts

The same question analyzed in every case is whether the alleged conflict is actual, potential, or non-existent.139

An actual conflict of interest occurs when the interests of counsel and the defendant “diverge with respect to a material factual or legal issue or to a course of action.”140 If, on appeal, the Second Circuit determines that an actual conflict existed, under Cuyler prejudice to the defendant is presumed, but that presumption is subject to rebuttal.141

When raised on appeal, the defendant must demonstrate only that

135 See United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (wrongful denial of counsel of choice results in automatic reversal of a conviction). 136 Wood v. Georgia, 450 U.S. 261, 271 (1981) (remanding for determination of whether attorney representing employee but paid by employer suffered “actual conflict”). 137 Glasser v., United States, 315 U.S. 60, 70 (1942). 138 Strickland v. Washington, 466 U.S. 668, 688 (1984). 139 United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993). 140 Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980). 141 United States v. Luciano, 158 F.3d 655, 661 (2d Cir. 1998). 61 counsel “actively represented conflicting interests” and that the “actual conflict of interest adversely affected his lawyer’s performance,” i.e. some “lapse in representation.”142 To satisfy a “lapse in representation,” the defendant must establish “some plausible alternative defense strategy or tactic” that “was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.”143 The lapse in representation does not have to have influenced the result at trial, or even the trial strategy, 144 it was held sufficient that a conflicted lawyer had a strong interest in preventing a client from cooperating,145 forgoing a strategy of implicating a co-conspirator,146 abandoning an area of cross-examination based on a government witness’s prior testimony,147 failing to consider a guilty plea and raising a claim of duress by co-defendant that the lawyer also represented.148

Potential conflicts exist “if the interests of the defendant may place the attorney under inconsistent duties as some point in the future.”149 In cases of potential conflicts, on appeal, a defendant must prove prejudice.

A district court in a pretrial setting must “initiate an inquiry when it knows or reasonably should know of the possibility of a conflict of interest,”150 and must either appoint separate counsel or determine whether a conflict exists.151 In Halloway, the Supreme Court mandated an automatic reversal of a conviction where defense counsel informed the court that he could not properly represent co-defendants with divergent interests, but the trial court made no inquiry and refused to appoint separate counsel. 152 In 2002, the Supreme Court limited automatic reversals to the Halloway situation (i.e. where counsel protested his inability to represent multiple defendants). Previous to that, the Second Circuit precedent called for automatic reversal whenever a possible conflict had been ignored.153 Absent a Halloway scenario, a defendant must be able to show that the conflict of interest adversely affected his counsel’s performance.”154

If an actual conflict of interest is discovered at the district court level and “is so egregious that no rational defendant would knowingly and

142 Cuyler, 446 U.S. at 348-349. 143 Winlker v. Keane, 7 F.3d 304, 309 (2d Cir. 1993). 144 See United States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995) (but recognizing in dicta that no lapse would occur if strategy not pursued was completely insubstantial or contrary to defendant’s interest). 145 United States v. Williams, 372 F.3d 96, 106 (2d Cir. 2004). 146 United States v. Schwarz, 283 F.3d 76, 92 (2d Cir. 2002). 147 United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir. 1986). 148 Camera v. Fogg, 658 F.2d 80, 88 (2d Cir. 1981). 149 United States v. Kliti, 156 F.3d 150, 153, n. 3. 150 Strouse v. Leonardo, 928 F.2d 548, 555 (2d Cir. 1991). 151 See Holloway v. Arkansas, 435 U.S. 475, 488-90 (1978). 152 Id. at 478-91. 153 See e.g. United States v. Rogers, 209 F.3d 139 (2d Cir. 2000). 154 Mickens v. Taylor, 535 U.S. 162, 173 (2002). 62 voluntarily desire the attorney’s representation, then the court must disqualify the attorney.”155 Examples include an unlicensed attorney or an attorney who is implicated in a defendant’s crimes. Substitute counsel must then be appointed. Actual conflicts may not be waived since permitting defendants to waive such conflicts may result in irreparably discredit[ing] the federal courts.”156

If the conflict is less egregious or is only potential, the district court retains the discretion to disqualify counsel based upon its “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.”157 In cases where one office represents more than one defendant, the court may require “the firm to choose among its clients,”158 or the court may apply “a rule of temporal priority [to disqualify] the firm from representing the last client to retain it.”159

If the Court decides not to disqualify counsel even if a conflict of interest may exist, it must then conduct a Curcio Hearing, in which it must secure the defendant’s informed waiver pursuant to specified procedures:

Prior to obtaining the waiver, the district court should:

1. Advise the defendant of his right to representation by an attorney who has no conflict of interest,

2. Instruct the defendant as to the dangers arising from particular conflicts,

3. Permit the defendant to confer with his chosen counsel,

4. Encourage the defendant to seek advice from independent counsel,

5. Allow reasonable time for the defendant to make a decision, and

6. Determine, preferably by means of questions that are likely to be answered in the narrative form, whether a defendant understands the risks of representation by his present counsel and freely chooses to run those risks.160

155 United States v. Lussier, 71 F.3d 456, 461 (2d Cir. 1995). 156 United States v. Mezzanatto, 513 U.S. 196, 204 (1995). 157 Wheat v. United States, 486 U.S. 153, 160 (1988). 158 United States v. Rahman, 189 F.3d 88, 143 (2d Cir. 1999). 159 Id. at 143. 160 United States v. Perez, 325 F.3d 115, 124 (2d Cir. 2003); United States v. Curcio, 680 F.2d 881, 888-90 (2d Cir. 1982). 63 There is no need for a Curcio hearing if the district court determines in the first instance that a possible conflict is really non-existent.161 But where prosecutors and defense counsel are aware of potential conflicts, the Second Circuit encourages those issues to be raised fully and timely before the district court.162

D. Multiple Representation

The most common conflicts involve multiple representations, including the following:

Joint representation – where a lawyer represents two or more individuals indicted or under investigation in the same proceeding.163

Dual representation – where the individuals are represented contemporaneously in different courts or in different proceedings.164

Successive or prior representation – where a lawyer has represented different individuals in non-contemporaneous proceedings.165

Conflicts of interest resulting from multiple representation in criminal cases impose heavy burdens on all the participants in the criminal justice system. An attorney's simultaneous representation of multiple defendants in a criminal case raises difficult issues concerning counsel's ethical responsibility, clients' sixth amendment rights, and the court's obligation to oversee the fairness of the judicial process. Multiple representation invites post-conviction claims of ineffectiveness,' and courts frequently have reversed convictions on this basis.

Among the risks posed by having that same lawyer or law firm represent multiple individuals or entities are:

 The lawyer’s advice to one party will be tainted by how that advice will affect the other party.

 A defense strategy beneficial to one party might be detrimental to the other party.

161 Kliti, 156 F.3d at 155. 162 United States v. Stantini, 85 F.3d 9, 13 n.3 (2d Cir. 1996). 163 See, e.g., United States v. Ho-Hsin Fan, 36 F.3d 240, 249 (2d Cir. 1994) 164 See, e.g., Ciak v. United States, 59 F.3d 296, 298-99 (criminal trial and a civil forfeiture) 165 Malpiedi, 62 F. 3d at 467 (former client who became a prosecution witness). 64  The potential conflict will inform decisions about the cross- examination of witnesses.

 The confidences of one client will be revealed to another client.166

Limitations on multiple representations are imposed by our ethical standards. See MRPC 1.7, 1.8, 1.9.

Concern about potential problems has led to the enactment of a specific rule regarding joint representation in the Federal Rules of Criminal Procedure. Federal Rule of Criminal Procedure 44(c) provides that the court shall promptly inquire whether each defendant has been advised of effective assistance of counsel, including separate representation. If any evidence of a conflict arises, the court shall take appropriate measures to protect each defendant's right to counsel.

In instances of prior representation, the Model Rules, absent a waiver, prohibit “[a] lawyer who has formerly represented a client in a matter [from] thereafter represent[ing] another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client. MRPC 1.9 The extent of the former representation is important.167 The prohibition is applicable where the representation by one lawyer within a law firm may be compromised by the firm’s representation of other clients. See Rule 1.7(b).

Moreover, a lawyer who cross-examines a former client obviously may not use client confidences protected by the attorney-client privilege. See Rule 1.9(b). Because this limits the lawyer’s ability to impeach the testimony of the former client, the Second Circuit has upheld disqualification of counsel where the former client made a motion to disqualify,168or joined the government’s motion.169 Caveat: The Second Circuit’s holding in United States v. Cunningham, 672 F.2d 1064, 1073 (2d Cir. 1982) (which found error in the district court where the former client did not join the government’s motion to disqualify, and the present client agreed to have the former client’s cross-examination restricted to matters of public record) is no longer good law given the Supreme Court’s broad discretionary disqualification standard enunciated in United States v. Wheat, 486 U.S.153 (1988).

166 Schwarz, 283 F.3d at 82. 167 Strouse, 928 F.2d at 553 (no conflict where former representation involved only sporadic civil matters) 168 See United States v. DiTommasso, 817 F2d 201, 219 (2d Cir. 1987). 169 See United States v. James, 708 F2d. 40, 41 (2d Cir. 1983). 65 E. Conflicts Based on a Lawyer’s Personal Interest

It is improper for a lawyer, absent, at a minimum, a client’s written consent, to acquire a financial interest adverse to the client. MRPC 1.8. Routine disagreements between a defendant and counsel do not rise to create a conflict based on a personal interest.170 In the absence of such a rule, a defendant would have the unilateral power to establish a conflict simply by complaining to the judge about the lawyer.171 However, particularized allegations that counsel had threatened not to investigate and not to file pre-trial motions if the defendant did not agree to plead guilty, are sufficient to create an actual conflict of interest.172

A key feature of the Davis decision is that the defense attorney chose not to defend himself, perhaps so as not to undermine his client. Cf. Model Rules of Professional Conduct Rule 1.6 (authorizing lawyer, with certain caveats, to disclose confidential information to respond to allegations related to representation of client). Instead, counsel took the course of declining to respond to the defendant’s allegations of coercion while acknowledging that the resulting plea withdrawal motion placed him in an adversarial relationship with his client.173 The Second Circuit remanded for an evidentiary hearing, but also noted that counsel could resume his representation if the district court concluded that the defendant’s allegations were spurious, given that the actual conflict would have been “extinguished.”174 On the other hand, the Court found neither an actual conflict nor a prejudicial potential conflict where a defendant argued that his alleged threats to harm his lawyer and the lawyer’s family gave the lawyer an incentive to seek the defendant’s conviction so as to neutralize the threat.175 To the contrary, the Second Circuit was persuaded that any threats would cause the lawyer to work for an acquittal so as to placate the defendant.176

F. Advocate Witness Rule

The advocate-witness rule, with limited exceptions, bars a lawyer from acting as both an advocate and a witness in the same proceeding.177 When a

170 See e.g. United States v White, 174 F.3d 290, 296 (2d Cir. 1999). 171 See United States v. Moree, 220 F. 3d 65, 71 (no actual conflict where defendant, while clearly unhappy with the lawyer, never accused him of misconduct). 172 United States v. Davis, 239 F.3d 283, 287 (2d Cir. 2001). 173 Davis, at 287. 174 Id. at 288. 175 See United States v. Doe #1, 272 F.3d166, 125-26 (2d Cir. 2001). 176 Id. at 126. 177 See Model Rules of Professional Conduct Rule 3.7(a); United States v. Ciak, 59 F.3d 296 at 304-305 (2d Cir. 1996)(“becoming an unsworn witness is a basis for disqualification of an attorney”). 66 witness is expected to testify about a conversation with counsel where counsel’s statements can be interpreted in a way that implicates the client, a conflict of interest exists if the lawyer ought to be rebutting the witness, “either to deny the conversation, or to provide an innocent explanation for the jury to consider.”178 Whether or not the lawyer actually testifies, by trying to impeach the witness during cross-examination and by arguing in summation about what the conversation means, the lawyer becomes an unsworn witness.179 And the risk that a lawyer will become a witness at trial is enough alone to disqualify him/her.180

The advocate witness rule has also served as a basis to disqualify a lawyer where an opening statement by him was inconsistent with another opening statement he delivered at an earlier trial.181 The Second Circuit has also suggested that agreeing to limit the inquiry to avoid the problem of counsel as an unsworn witness may be appropriate in some circumstances.182 A stipulation may be another way to sidestep the advocate-witness rule.183

XV. No Need to Attend the Entire Trial?

Recently, a Fourth Circuit case from 2016 held that a defendant’s Sixth Amendment rights were compromised when his lawyer slept through a “substantial portion of the trial.”184 But what is a “substantial portion”? The Court determined that the particularly evident and lengthy sleeping that the attorney did in this case was substantial, but declined to define the term for all cases. 185 The Court stated: “Whether a lawyer slept for a substantial portion of the trial should be determined on a case-by-case basis, considering, but not limited to, the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through.”186

From Adam Liptak at the New York Times: Cory Donald, who is serving a life sentence in Michigan for his role in the killing of a drug dealer, said he had been denied effective assistance of counsel at his trial because his

178 United States v. Cunningham, 672 F2d.1064, 1074 (approving disqualification of lawyer and his firm if district judge determined on remand that testimony of witness admissible). 179 See United States v. Iorizzo, 786 F.2d 52, 57 (2d Cir. 1986). 180 See United States v. Jones, 381 F.3d 114, 121 (2d Cir. 2004). 181 See United States v. MeKeon, 738 F.2d 26, 34-35 (2d Cir. 1984). 182 See United States v. Kliti, 156 F.3d150, 156 n. 7 (2d Cir. 1998). 183 See Torres v. Donnelly, 554 F. 3d 322, 326 (2d Cir. 2009)(conflict negated by stipulation that obviated the need for defense counsel’s testimony).

184 United States v. Ragin, 820 F.3d 609, 613 (4th Cir. 2016) 185 Id. at 622, n.11. 186 Id. 67 lawyer had been absent for part of it.

A federal trial court and a divided panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, agreed, relying on a Supreme Court decision that says a defendant’s constitutional rights are violated whenever his lawyer is absent from a critical portion of the trial.

The Supreme Court reversed in an unsigned opinion. It said the Sixth Circuit had “framed the issue at too high a level of generality.” There was, the opinion said, no precedent addressing “the specific question presented by this case.”

“None of our holdings,” the opinion said, framing the issue much more narrowly, “address counsel’s absence during testimony that is irrelevant within the defendant’s own theory of the case.”

In a second characteristic move, the opinion said it was agnostic about whether Mr. Donald’s constitutional rights had indeed been violated when his lawyer decided to skip part of the trial. All it decided under the 1996 law, the opinion said, was that the question was an open one.

That kind of reasoning, Judge Reinhardt wrote, has stunted the development of constitutional law and has “unfortunate parallels” in another body of decisions, those involving civil claims against government officials accused of misconduct.

Adam Liptak, “Supreme Court’s Unsigned Rulings Show a Narrow View of Prisoners’ Rights,” The New York Times, available at http://www.nytimes.com/2015/07/21/us /supreme-courts-unsigned-rulings- show-a-narrow-view-of-rights.html (July 20, 2015). XVI. Fraud Behind the ‘Legal Curtain’

Attorney and CPA, Paul Daugerdas, was found guilty of conspiring to defraud the IRS, evade taxes, and commit mail, wire fraud and other crimes. Daugerdas was head of the Chicago office for the now debunked Texas- based law firm of Jenkens & Gilchrist. Daugerdas has been labeled by the government as history’s most prolific and unrepentant tax cheat. In 2014, he was sentenced to 15 years in prison for only paying $8,000 in taxes when he should have paid $32 million for the $95 million he made in fees for setting up tax shelters for the wealthy between 1994 and 2004. In addition to his prison conviction, Daugerdas was ordered to pay nearly a half-billion dollars in restitution and forfeit $164 million in cash and property, including his 68 Wisconsin home.

The Associated Press, “Paul Daugerdas, Chicago Lawyer, Convicted in Largest Tax Fraud in History,” HUFF POST CHICAGO, available at http://www.huffingtonpost.com/2013/11/02/paul-daugerdas- convicted_n_4202420.html (Nov. 1, 2013).

Larry Neumeister, “Lawyer Gets 15 Years in Big Tax Fraud Case,” THE SEATTLE TIMES, available at http://www.seattletimes.com/nation-world/chicago-lawyer- gets-15-years-in-big-tax-fraud-case/ (June 26, 2014). XVII. Client Relations A. Who’s in Charge under the Rules?

Rule 1.2 of the ABA Rules for Professional Conduct covers the allocation of authority between clients and their attorneys.

1.2(a)

“A lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are pursued.”

“A lawyer shall abide by a client’s decision whether to settle a matter”

“The lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”

NY RPC 1.2(e)

“A lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, or accede to reasonable requests of opposing counsel, when doing so does not prejudice the rights of the client.”

The most important decisions belong to the client, however, in practice, most clients defer to the special knowledge and skill of their attorney.

While the rule is silent on the topic, most attorneys defer to the client’s judgment on decisions that involve expenses, or the case’s impact on third persons.

Because of the varied nature of disagreements that can arise between clients and their attorneys, Rule 1.2 does not attempt to proscribe solutions. 69  The Rules suggest that the lawyer consult with the client and seek a mutually acceptable resolution of the disagreement.

 If such efforts are unavailing and a fundamental disagreement exists, the lawyer may withdraw from the representation in accordance with Rule 1.16(c)(4). However, this is something much easier said than done. B. When Is Control An Issue?

“Probably the most common avenue for presenting [the] issue [of client control, is]… through a claim of ineffective assistance of counsel”

“Questions of client control also may be raised … when an indigent defendant requests appointment of new counsel because his current attorney refuses to accept his directions on an issue that should be defendant’s control. The same ground may be advanced by a defendant seeking a continuance for the purpose of replacing retained counsel” See supra note 4 at 774, Wayne R. Lafave et al., Criminal Procedure § 11.6 (3d ed. 2007).

However, defendant “has no right to substitute counsel where the disagreement with counsel relates to a matter within the exclusive province of the lawyer.” “Disagreements over ‘strategy’ do not present ‘irreconcilable differences’” Id.

While the issue of control can arise through various avenues, courts apply the same analysis regardless. “Although the difference in procedural setting could conceivably influence a court’s analysis of the client-control issue, the courts have tended to treat the issue as basically the same whether presented in one procedural context or another.” Id. C. The Client’s “Freedom to be Foolish”

This part of the talk draws heavily on a wonderful article called “Control over the Defense” written by Kenneth P. Troccoli that appeared in “The Champion” (NACDL journal) a few years ago. Mr. Troccoli is a federal public defender from Virginia who spent 4 years as counsel to Zacarias Moussaoui, more commonly known as “the 20th hijacker”.

Mr. Troccoli talks about how hard it was for the attorneys involved to allow Moussaoui the “freedom to be foolish”. Moussaoui imposed certain 70 restrictions on his attorneys conducting his defense, which his defense team referred to as the “Three M’s” – for no Motions, no Mitigation, and no Muslims. In other words, Moussaoui would not allow his lawyers to file any motions, he would not allow any mitigating evidence to be presented, and no Muslims were to be interviewed or summoned as witnesses.

While Moussaoui stated publicly that he wished to fight the death penalty, every decision he made had the effect of making the death penalty more likely, such as his decision to testify that he was supposed to pilot a fifth plane. D. What the Case Law says…

Jones v. Barnes, 463 US 745 (1983) – Defense counsel does not have a duty to raise every nonfrivolous issue requested by a defendant for his appeal.

In Jones v. Barnes, the Supreme Court recognized that while the accused has the ultimate authority on certain fundamental decisions, such as whether to file an appeal, the defendant cannot compel appointed counsel to press nonfrivolous issues. The lower court had promulgated a per se rule that gave the client control over what issues were to be included in his appeal. In reversing the lower court, the Supreme Court stated that it was unreasonable for judges to “second-guess reasonable professional judgments.”

Client Decisions

The Supreme Court has identified five decisions over which a criminal defendant has ultimate control. Id.; Florida v. Nixon, 543 U.S. 175.

1) To plead guilty or take steps tantamount to pleading guilty

2) To waive the right to a jury trial

3) To be present at trial

4) To testify on his own behalf

5) To take an appeal

Federal and state lower courts have identified an additional five decisions that belong solely to the defendant: Troccoli citing Lafave et al, Criminal Procedure, supra note 4 at 776-79. 71 1) Waiver of the right to attend important pretrial proceedings

2) Waiver of the constitutional right to a speedy trial

3) Refusal (by competent client) to enter an insanity plea

4) Whether or not to withhold a defendant’s sole defense at the guilt phase of a capital case and use it solely in the penalty phase.

5) Waiver of the right to be charged by a grand jury indictment.

Attorney Decisions

On the other hand, the Supreme Court has found that decisions in the realm of “strategy” or “tactics” belong to the attorney.

While “defense counsel undoubtedly has a duty to discuss potential strategies with the defendant” Strickland v. Washington, 466 U.S. 668 (1984).

“[T]he adversary process could not function effectively if every tactical decision required client approval” Taylor v. Illinois, 484 U.S. 400 (1988).

Troccoli goes on to list decisions identified by the Supreme Court as within the control of the attorney:

1) Whether to bar prosecution from using unconstitutionally obtained evidence.187

2) To dismiss the indictment because the grand jury was unconstitutionally selected.188

3) To have the defendant wear civilian clothing during the trial.189

4) To forego an objection to a jury instruction.190

5) To decline to press a particular issue on appeal.191

187 Wainwright v. Sykes, 433 U.S. 72 (1977). 188 Tollett v. Henderson, 411 U.S. 258 (1973). 189 Estelle v. Williams, 425 U.S. 501 (1976). 190 Engle v. Isaac, 456 U.S. 107 (1982). 191 Jones v. Barnes, 463 U.S. 745 (1983). 72 6) To forego cross-examination, to decide not to put certain witnesses on the stand, and whether or not to disclose the identity of certain witnesses prior to trial.192

7) To provide timely discovery to the prosecution. Id.

8) Decisions involving evidentiary objections.193

9) To decide whether, after consultation, to concede guilt at the guilt phase of a capital case. (If client is nonresponsive, it’s unclear how court would treat an actively objecting client).194

10) To exercise peremptory challenges.195

11) Whether to bring juror misconduct to attention of court. Id.

12) Whether to request or consent to a mistrial.196

13) Requesting the exclusion of some members of the public.197

14) Seeking a change of venue, continuance, or other relief because of pretrial publicity.198

15) Requesting a competency determination.

16) Choosing among different defenses that may produce an acquittal.199

17) Deciding what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pretrial motions should be filed.200

The Supreme Court has stated that “strategic decisions made after a thorough factual and legal investigation “are virtually unchallengable.”

192 Taylor v. Illinois, 484 U.S. 400 (1988). 193 New York v. Hill, 528 U.S. 110 (2000). 194 Florida v. Nixon, 543 U.S. 175 (2004). 195 Government of Virgin Islands v. Weatherwax, 77 F.3d 1425 (3d Cir. 1996). 196 United States v. Washington, 198 F.3d 721 (8th Cir. 1999). 197 United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969). 198 United States ex rel. Agron v. Herold, 426 F.2d 125 (2d Cir. 1970). 199 Lewis v. Alexander, 11 F.3d 1349 (6th Cir. 1993). 200 Sexton v. French, 163 F.3d 874 (4th Cir. 1998) (citing United States v. Teague, 953 F.2d 1525 (11th Cir. 1992)). 73 Strickland v. Washington. However, “strategic decisions that are not the product of a thorough investigation will be subject to post-trial attack regardless of counsel’s power to make the decision.” Troccoli.

In Wiggins v. Smith, the Supreme Court held that counsel’s strategic decision not present mitigation evidence in a capital case was not justifiable given defense counsel’s failure to discharge his duty to investigate. 539 U.S. 510 (2003). D. “Personal” or “Strategic” – the Court’s Rationale

Whether the client or counsel has control over a particular decisions generally depends on whether the matter is classified as “personal/fundamental” or is better described as involving “tactics” or “strategy”.

As Professor LaFave has observed: “The Supreme Court’s explanations of why particular decisions are for counsel or client have been brief and conclusionary. Decisions within the client’s control are simply described as involving “fundamental rights” while those within the lawyer’s control are said to involve matters requiring the “superior ability of trained counsel” in assessing “strategy.” Troccoli (quoting Lefave) (citing Jones v. Barnes, 463 U.S. 745).

Besides the “fundamental versus strategy” distinction, other rationales have emerged from the case law.

“Practical necessities of the adversary system” – because this system does not allow for the meaningful consultation and deliberation that a defendant would require in order to be the final decision-maker on a particular issue. United States ex rel. Brown v. Warden, 417 F. Supp. 970 (N.D. Ill. 1976).

Justice William Brennan “the need to confer decisive authority on the attorney is paramount with regard to the hundreds of decisions that must be made quickly in the course of a trial.” Jones v Barnes, 463 U.S. at 754.

This includes the concern of trial judges that valuable court time will be wasted trying to ensure every defendant knowingly made the decisions that have been entrusted to them. Troccoli.

Another rationale is the distinction between “ends” and “means”…

“The client, it is often said, must be able to control the ‘end’, 74 while the lawyer determines the ‘means’ for reaching that end”. “Thus, the defendant must control decisions as to whether or not to contest, and the lawyer will control the defense presentation when it does contest.” Lafave et al., Criminal Procedure.

In the Moussaoui case, Mr. Troccoli and his team had decided that they had no obligation to follow Moussaoui’s prohibitions. To the contrary, Mr. Troccoli and his team had an ethical duty to file motions, introduce mitigating evidence, and interview Muslims. XVIII. Types of Prosecutorial Misconduct A. Vindictive and Selective Prosecutions

Even before considering the motive to file charges, a prosecutor is obliged to avoid conflicts of interest. This obligation arises from statute,201 Department of Justice regulations202 and Supreme Court case law.203

It is a violation of due process for a prosecutor to use the charging decision to retaliate for a defendant’s exercise of constitutional or statutory rights. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

In Blackledge v. Perry, 417 U.S. 21 (1974), the Court held that a presumption of prosecutorial vindictiveness would apply where the prosecutor obtained an indictment charging a felony following the defendant’s appeal of his misdemeanor conviction. Even in the absence of actual vindictiveness, the Court reversed the conviction. Id. at 28-29; see also Thigpen v. Roberts, 468 U.S. 27, 33 (1984) (prosecution of defendant for manslaughter, following his appeal of reckless driving and other misdemeanor convictions, was unconstitutionally vindictive).

But not every case where charges are increased will be presumed to be vindictive. See United States v. Goodwin, 457 U.S. 368, 381-382 (1982) (presumption of vindictiveness does not apply where prosecutor indicts

201 See 18 U.S.C. § 208(a) (prohibiting, with exceptions of course, employees of the Executive Branch from representing the United States in any matter in which they, their family members or business associates have a financial interest); see also Mehler, Gleeson and James, Federal Criminal Practice: A Second Circuit Handbook, 10th Ed., Matthew Bender & Company, Inc. (2010), Ch. 37.

202 See United States Attorneys’ Manual, § 1-4.320 (F)(2) (DOJ employees may not engage in outside activities that “create an appearance that [their] official duties were performed in a biased or less than impartial manner”).

203 See Young v. Unites States ex rel. Vuitton et Fils S. A., et al., 481 U.S. 787, 808 (1987) (noting that counsel for private party may not be appointed special prosecutor in contempt action of court order in same case). 75 defendant on more serious charges following defendant’s rejection of reduced plea bargain); see also Bordenkircher v. Hayes, supra (finding no vindictiveness where defendant indicted on more serious charges after rejecting plea offer).

Selective prosecution occurs when the decision to prosecute is based upon the defendant’s race or religion, or some other impermissible basis. See United States v. Armstrong, 517 U.S. 456, 464-465 (1996).204 To prevail on such a claim, a defendant must overcome a strong presumption that the prosecutor has properly discharged his duties, as well as a judicial reluctance to second-guess prosecutorial decisions. Armstrong, 517 U.S. at 464; Wayte v. United States, 470 U.S. 598, 607-608 (1985). A selective prosecution claim should be judged “according to ordinary equal protection standards.” Wayte, 470 U.S. at 608.

Normally, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision to prosecute rests entirely in his/her discretion. Armstrong, 517 U.S. at 464. However, a defendant may be able to demonstrate that a prosecution is directed so exclusively against a particular class of persons that to prosecute them amounts to a practical denial of equal protection of law. Id. at 464-465. To establish entitlement to discovery on claim of selective prosecution, there must be credible evidence that similarly situated defendants of other races could have been prosecuted, but were not. Id. at 468. 205

Prosecutors may not selectively prosecute based on a defendant’s race. But what happens when a prosecutor declines to prosecute, arguably because of a victim’s protected class? A prosecutor in Grand Rapids, Michigan elected to not prosecute in an alleged rape case, because she believed the mentally handicapped victim was not credible. 206 The victim was unable to sequence events properly when questioned, but the victim’s mother believes this was a result of her cognitive disability and trauma from

204 Shaw v. Garrison, 467 F.2d 113, 120-122 (5th Cir. 1972)(where state prosecution was instituted in bad faith and for purposes of harassment, after defendant had taken the stand and been acquitted; district court properly enjoined state prosecutor from further prosecution of the action) (Side note: This was the famous prosecution of Clay Shaw for his alleged involvement in the JFK assassination).

205 A defendant does not have to present a prima facie case in order to justify evidentiary hearing on a claim of selective prosecution. So long as she alleges some facts in support, raising reasonable doubt about the propriety of prosecution’s purpose, a district court should conduct a hearing. However, it is still presumed that the choice to prosecute has been made in good faith for reasons of sound governmental policy. United States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981).

206 David Lohr, Michigan City Attorney Accused of Calling Rape Victim a Whore, HuffPost (Jul. 6 2018 3:05 PM), https://www.huffingtonpost.com/entry/michigan-city-attorney-accused-of-calling-rape- victim-a-whore_us_5732681ce4b0bc9cb04885b6 76 the assault. 207 The prosecutor not only questioned the victim’s credibility, but suggested she may have solicited or welcomed the assault in some way. The prosecutor also disclosed personal information about the victim to a private citizen when she made these statements. 208 In response, the victim’s mother consulted with an attorney and filed a lawsuit against the City of Grand Rapids for failing to pursue charges. 209 B. Grand Jury

Threatening a grand jury indictment to coerce a defendant into paying restitution “is wildly inappropriate and may furnish grounds for a finding of prosecutorial misconduct.” Kent v. Cardone, 404 Fed.Appx. 540 (2d Cir. 2011) (citing ABA Standards for Criminal Justice: Prosecution Function, Standard 3-3.35 (Relations with Grand Jury)).

At the federal level, prosecutorial misconduct in a grand jury presentation requires the showing of prejudice. Bank of Nova Scotia v. United States, 487 U.S. 250, 256-257 (1988).210 Though a federal prosecutor is accorded great latitude in the scope of evidence permitted for grand jury presentation, as opposed to trial,211 a District Court does have the supervisory power to dismiss an indictment based upon prosecutorial misconduct that violates statute or the Federal Rules of Criminal Procedure. United States v. Mechanik, 475 U.S. 66, 74 (1986) (O’Connor, J., concurring).

A prosecutor may not utilize “fundamentally unfair tactics,” and may

207 Id. 208 Id. 209 Id. 210 This is not necessarily the case under state law. Contrast People v. Huston, 88 N.Y.2d 400, 408-409, 668 N.E. 1362, 1368 (N.Y. Court of Appeals 1996) (affording relief where “the integrity [of the Grand Jury proceeding] is impaired and prejudice to the defendant may result”); N.Y. C.P.L. 210.35 (5). Under federal law, even with prosecutorial misconduct present, if competent evidence exists that would otherwise support the indictment, the charge will stand absent evidence where the “votes of the grand jury were based on their bias resulting from the prosecutors remarks.” United States v. Riccobene, 451 F.2d 586, 587 (3rd Cir. 1971); see also United States v. McKenzie, 678 F.2d 629, 633 (5th Cir. 1982) (prosecutor’s response to grand jury vote being tied was improper, but not serious enough to invalidate an indictment based on competent evidence); United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983) (noting that one challenging an indictment carries the difficult burden of demonstrating that the prosecutor engaged in flagrant misconduct which deceived the grand jury or significantly impaired its ability to exercise independent judgment).

211 See Fed. R. Evid. 1101 (d)(2) (rules inapplicable to grand jury proceedings); accord Costello v. United States, 350 U.S. 359, 362-364 (1956) (holding that a federal indictment may be based entirely upon hearsay; the court noting that “[g]rand jurors [have traditionally] been selected from the body of the people and their work was not hampered by rigid procedural or evidential rules”); United States v. Calandra, 414 U.S. 338, 344-345 (1974) (concluding that evidence obtained in violation of defendant’s Fifth Amendment privilege against self-incrimination will not invalidate indictment); United States v. Mandujano, 425 U.S. 564, 581 (1976) (noting that a witness has no right to counsel in the grand jury room).

77 not obtain an indictment based upon false evidence. United States v. Ciambrone, 601 F.2d 616, 622-623 (2d Cir. 1979).212 The District Court’s supervisory power to dismiss may be utilized where prosecutorial misconduct “is so systematic and pervasive as to raise a substantial and serious question about the fairness of the process which resulted in the indictment.” Bank of Nova Scotia, 487 U.S. at 259. The court’s powers to do the right thing also extend where misconduct by the prosecutor “may have influenced substantially the grand jury’s decision to indict” and where “there is grave doubt as to whether the decision to indict was so influenced.” Id.

Unfortunately for defendants, the supervisory power of the courts to create rules of grand jury procedure “is a very limited one, not remotely comparable to the power they maintain over their own proceedings.” United States v. Williams, 504 U.S. 36, 50 (1992).213 However, if prosecutorial misconduct is sufficiently egregious, a court may refer the prosecutor to a state bar or similar body that disciplines unprofessional attorney behavior. E.g., United States v. Beckett, 706 F.2d 519, 522 (5th Cir. 1983).

In 2015, the attorney for twelve year old Tamir Rice accused an Ohio prosecutor of manipulating and abusing the Grand Jury process. 214 Tamir was shot dead by a Cleveland police officer. Tamir’s attorney believes the prosecutor manipulated the grand jury to contrive a ruling of exoneration. 215 The officers shot young Tamir in a matter of seconds when they mistook his toy gun for a real one. The prosecutor hired expert witnesses, which is uncommon for a prosecutor to do for a grand jury indictment, and had them testify that the officers’ conduct was reasonable and justified given the circumstances.216 The prosecutor also allowed the officers to read prepared statements, and did not question them, a courtesy that would never be extended to a regular citizen. 217

C. Use of False Evidence at Trial

It is serious misconduct for a prosecutor to obtain a conviction through

212 A prosecutor must act in good faith in securing an indictment. United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979).

213 The District Court’s role as an overseer of the grand jury is limited. The quashing of indictments must not subvert the prerogatives of the prosecutor and grand jury unless there is a clear basis in fact and law for doing so. United States v. Samango at 607 F.2d at 881. 214 Emily Shapiro, Tamir Rice Case: Prosecutor Abused, Manipulated Grand Jury Process, Family Attorneys Say, ABC News (July 10, 2018 7:12 PM) https://abcnews.go.com/US/tamir-rice-case-prosecutor- abused-manipulated-grand-jury/story?id=35979452 215 Id. 216 Id. 217 Id. 78 the use of false evidence. The knowing use of false testimony is “perhaps the most grievous accusation that can be leveled against a prosecutor.” United States v. Wallach, 935 F.2d 445, 473 (2d Cir. 1991). It is improper whether the prosecutor affirmatively elicits such evidence (see Miller v. Pate, 386 U.S. 1, 7 (1967)) or merely “allows it to go uncorrected when it appears.” See Napue v. Illinois, 360 U.S. 264, 269 (1959) (where prosecutor failed to correct witness’s false testimony that he had no agreement with prosecution).

The standard for analyzing false evidence claims depends upon “the materiality of the perjury (for example) to the jury’s verdict and the extent to which the prosecution was aware of the perjury.” Wallach, 935 F.2d at 456.218 D. Brady

The Supreme Court in Brady v. Maryland, 373 U.S. 83, 87 (1963), held that due process requires the prosecution in a criminal case to turn over evidence that is favorable to the accused when the evidence is material to guilt or punishment -- irrespective of good or bad faith by the prosecution. 219 See also Giglio v. United States, 405 U.S. 150, 154 (1972) (Brady rule applied to require the disclosure of evidence relevant to the credibility of key government witnesses); United States v. Bagley, 473 U.S. 667, 682 (1985) (recognizing that evidence withheld by the government is material [requiring a reversal] only if there is a reasonable probability that the result of proceeding would have been different had the evidence been disclosed); Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir. 2009); Thompson v. Connick, 553 F.3d 836, 842-843 (5th Cir. 2008) (Brady violation led to defendant’s conviction; defendant won 14 million dollar § 1983 suit); cert. granted 130 S.Ct. 1880 (2010).

218 A criminal conviction must be set aside when a prosecutor elicits testimony he or she knows or should know to be false, or allows such testimony to go uncorrected - - unless there is no reasonable likelihood that the false testimony could have affected the judgment of the jury. Shih Wei Su v. Filion, 335 F.3d 119, 126-127 (2d Cir. 2003). In one case, the government’s failure to correct testimony that they knew to be false was not excused on the ground that defense counsel had been given a document revealing pertinent information, since the prosecutor reinforced the deception through a misleading examination of witnesses. United States v. Barham, 595 F.2d 231, 243 (5th Cir. 1979).

219 When there are a number of Brady violations, a court must analyze whether the cumulative effect of all evidence suppressed by the government raises a reasonable probability that its disclosure would have produced a different result. United States v. Sipe, 388 F.3d 471, 490-493 (5th Cir. 2004) (where the prosecutor suppressed evidence that [1] its star witness personally disliked defendant, [2] the criminal history of one of the government’s testifying, and [3] that certain benefits were accorded to the witnesses; Brady was violated).

79 Although a materiality analysis under Brady’s disclosure requirement entails an examination of the nature and strength of the prosecution’s case, it does not require the defendant to prove that he would have been acquitted had the suppressed evidence been disclosed. Spicer v. Roxbury Correctional Institute, 194 F.3d 547, 557-562 (4th Cir. 1999) (witnesses prior inconsistent statement to his attorney that he did not see defendant on day of the alleged crime was “material” under Brady).

In considering whether the prosecution’s failure to disclose exculpatory evidence undermines confidence in a trial’s outcome, the court must undertake a balanced evaluation of the nature and strength of both the evidence that defense was prevented from presenting, as well as the evidence each side presented at trial. United States v. Jernigan, 492 F.3d 1050, 1053-1057 (9th Cir. 2007) (where the prosecutor’s failure to inform a bank robbery defendant that other nearby banks had been robbed after her arrest and detention [by a woman closely resembling the defendant] constituted a Brady violation).

There may not be suppression of evidence for Brady purposes if the defendant could have learned of the information through reasonable diligence. Nor should there be suppression when the defendant and the state have equal access to the information. Johns v. Bowersox, 203 F.3d 538, 545 (8th Cir. 2000); but see Monroe v. Angelone, 323 F.3d 286, 301 (4th Cir. 2003) (under Brady, the prosecution has a duty to disclose material even if it may seem redundant; redundancy may be factored into the materiality analysis, but it does not excuse disclosure obligations). E. Improper Examination of Witnesses

It is misconduct for a prosecutor to make “a conscious and flagrant attempt” to bolster the government’s case by relying on inferences arising from a witness’s present invocation of the Fifth Amendment privilege. Namet v. United States, 373 U.S. 179, 186 (1963). It is further improper for a prosecutor to cross-examine regarding a witness’s prior invocation of her Fifth Amendment privilege before the grand jury. See Grunewald v. United States, 353 U.S. 391, 424 (1957).

It is improper for a prosecutor to ask a defendant on cross-examination whether an FBI agent was mistaken or lying to the extent that the agent’s testimony differed from the defendant’s testimony. United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987). A prosecutor may also not ask a character witness whether the witness’s opinion of the defendant would be different if the defendant were, in fact, guilty of the crime. United States v. Oshatz, 912 F.2d 534, 538-540 (2d Cir. 1990).

80 A prosecutor may use a prior conviction to impeach a witness. But the scope of the examination is strictly limited so as to avoid confusion and unfairness to the witness. A prosecutor is also required to minimize the risk that a juror might infer guilt based on a previous conviction. United States v. Harding, 525 F.2d 84, 88-89 (7th Cir. 1975). Where the government breaches a stipulation not to offer evidence of the defendant’s prior convictions, or to cross-examine him on that point, reversible error has occurred. United States v. Shapiro, 879 F.2d 468, 470-472 (9th Cir. 1989).

The admission of testimony that a defendant lacked physical or emotional reaction when confronted with a large amount of marijuana is tantamount to evidence of silence, and violates the Fifth Amendment right against self-incrimination. In this context, the court will consider the extent of the comments made by the witness; whether an inference of guilt from silence was stressed to the jury; and the extent of other evidence suggesting defendant’s guilt. United States v. Velarde-Gomez, 269 F.3d 1023, 1029- 1031 (9th Cir. 2001) (recognizing that the government may not use evidence of defendant’s post-arrest, post-Miranda silence at trial for impeachment or during its case-in-chief).

Finally, while examining a defendant, a prosecutor may not make a personal statement based on outside knowledge that he possesses concerning the case. United States v. Lowrimore, 923 F.2d 590, 593-594 (8th Cir. 1991) (where the prosecutor improperly commented during questioning of defendant that he had previously seen defendant testify was improper). F. Summation

As New York’s highest court has enunciated:

(a)lthough counsel is to be afforded ‘the widest latitude by way of comment, denunciation or appeal in advocating his cause’, summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits. 220

Summation comments must be considered in light of the entire record to determine whether defendant was deprived of her right to a fair trial. This determination takes into account the nature and seriousness of the

220 People v. Ashwal, 39 N.Y.2d 105, 109, 347 N.E. 564, 566 (N.Y. Court of Appeals 1976) (internal citations omitted). Indeed, a prosecutor may “strike hard blows, [but] he [or she] is not at liberty to strike foul ones.” Berger, 295 U.S. at 88.

81 misconduct, whether the defense counsel invited the remarks; whether the court’s instructions to the jury were adequate; whether the defense was able to counter the improper argument through rebuttal; and the weight of the evidence against the defendant. United States v. Durham, 211 F.3d 437, 442 (7th Cir. 2000).

Similarly, the Sixth Circuit’s standard by which courts determine the flagrancy of a prosecutor’s statements is whether they tended to mislead the jury or prejudice defendant; whether statements were isolated or among a series of statements; whether the statements were deliberate or accidentally made before the jury; and the total strength of the evidence against defendant. United States v. Francis, 170 F.3d 546, 549-550 (6th Cir. 1999). 221

A prosecutor should not appeal to a jury’s fears and passions in summation - - thus improperly deflecting the jurors’ attention from issues of fact on the question of guilt or innocence to that of achieving vengeance and protection of the community.222 A prosecutor has a duty not to make comments during her summation that would inflame the jury and prevent them from fairly assessing the evidence presented to them. United States v. Mannava, 565 F.3d 412, 414 (7th Cir. 2009) (where prosecutor’s incessant harping at trial that defendant had attempted to rape a 13 year old girl was reversible error; as these comments implied intent to use force where no such evidence had been presented).223

A prosecutor may not personally vouch for the credibility of witnesses or the truth of the government’s evidence. United States v. Miller, 116 F.3d 641, 683 (2d Cir. 1997). As the Second Circuit has observed,

The American Bar Association Standards for Criminal Justice declare: "It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or guilt of the defendant." ABA Standards for Criminal Justice, Standard 3-5.8(b) (1980) (hereinafter cited as "ABA Standard (number)"). The

221 See also United States v. Drummond, 481 F.2d 62, 63-64 (2d Cir. 1973) (reversal of conviction warranted based on prosecutorial misconduct, where prosecutor repeatedly expressed his personal belief in defendant’s guilt, attempted to bolster the testimony of government witnesses, persisted in asking irrelevant and argumentative questions, and made improper comments on the evidence); but see United States v. Farmer, 583 F.3d 131, 147 (2d Cir. 2009)(government’s misuse of the defendant’s nickname “murder” did not cause substantial prejudice, as defendant’s guilt was supported by overwhelming evidence).

222 See generally People v. Davis, 256 A.D.2d 474, 475, 683 N.Y.S.2d 276, 277 (N.Y.2d Judicial Department 1998). 223 Compare Martin v. Parker, 11 F.3d 613, 615-617 (6th Cir. 1993) (finding it improper for prosecutor comparing defendant to Adolf Hitler; was clear error that denied defendant his right to a fair trial). 82 policies underlying this proscription go to the heart of a fair trial. The prosecutor is cloaked with the authority of the United States Government; he stands before the jury as the community's representative. His remarks are those, not simply of an advocate, but rather of a federal official duty-bound to see that justice is done. The jury knows that he has prepared and presented the case and that he has complete access to the facts uncovered in the government's investigation. Thus, when the prosecutor conveys to the jurors his personal view that a witness spoke the truth, it may be difficult for them to ignore his views, however biased and baseless they may in fact be.

United States v. Modica, 663 F.2d 1173, 1178-1179 (2d Cir. 1981) (other internal citations omitted); United States v. Simtob, 901 F.2d 799, 805-806 (9th Cir. 1990) (prosecutorial vouching for credibility of principal government witness, which included a dramatic offer of immunity to witness, was reversible error).

A prosecutor may not “convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant.” United States v. Young, 470 U.S. 1, 18 (1985); see also United States v. Rodrigues, 159 F.3d 439, 451 (9th Cir. 1998) (combination of prosecutor’s misstatement of the law with unwarranted attack on defense counsel’s integrity was prejudicial to the point of denying defendant her right to a fair trial. 224

A prosecutor may not comment of the defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 614 (1965); but see United States v. Robinson, 485 U.S. 25, 34 (1988) (where defense counsel argued that government had not allowed defendant to explain his side of the story, prosecutor could comment that defendant “could have taken the stand”); but see United States v. Johnston, 127 F.3d 380, 396 (5th Cir. 1997) (prosecutor’s comments on defendant’s failure to testify was not manifest if there is an equally plausible explanation for prosecutor’s remarks, which must be considered in context of the entire case).

Finally, absent a timely and specific objection225 to comments in closing arguments, there is no appellate review unless errors assigned constitute plain error affecting a defendant’s substantial rights. United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. 1981).

224 See Fed. R. Evid. 103 (a)(1). 225 See Fed. R. Crim. Proc. 52 (b); Fed. R. Evid. 103 (d 83 G. NYS Bill to Create Prosecutorial Misconduct Commission

The New York State Assembly recently passed a bill that would create a body to independently investigate prosecutorial misconduct.226 The bill now awaits the governor’s approval, and will take effect in 2019 if approved, barring any legal challenge. Advocates of the bill say it will prevent wrongful convictions and save the State money by avoiding re-trials, while adversaries of the bill suggest it may be unconstitutional.227 H. Civil Claims for Prosecutorial Misconduct

Prosecutors are entitled to absolute immunity when they engage in activities “intimately associated with the judicial phase of the criminal process” Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and done “in the course of [their] role as… [an] advocate for the State.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). This immunity includes a claim for damages for “initiating a prosecution.” Imbler, 424 U.S. at 431.

A defendant may be eligible for attorney’s fees and expenses where a not-guilty verdict is the result of a prosecution where “the position of the United States was vexatious, or frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” 18 U.S.C. § 3006A (addressing “[a]dequate representation of defendants”); see also United States v. Braunstein, 281 F.3d 982, 996 (9th Cir. 2002) (where “government’s position was so obviously wrong as to be frivolous”). I. A Defense Attorney’s Ethical Obligations

“Don’t just sit there…do something,” whispers the accused to his attorney. The prosecutor has done something improper. Now what? It’s time to zealously protect your client’s rights. However, an attorney pursuing his (or her) client’s cause is “limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.” Nix v. Whiteside, 475 U.S. 157, 166 (1986).228

226 Dan Clark, Bill to Create Prosecutorial Misconduct Commission Approved by NY State Assembly, New York Law Journal, (July 10, 2018 3:05 PM) https://www.law.com/newyorklawjournal/2018/06/19/ny-das-association-takes-stand-against-prosecutorial- misconduct-commission/ 227 Id. 228 See ABA Model Rules of Professional Conduct (“MRPC”) Rule 3.3 (a)(3) (a lawyer must not “offer evidence that the lawyer knows to be false” and “may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false”); MRPC Rule 8.4 (d) (a lawyer must not “engage in conduct that is prejudicial to the administration of justice”); see also Mehler, Gleeson and James, Federal Criminal Practice: A Second Circuit Handbook, 10th Ed., Matthew Bender & Company, Inc. (2010), Ch. 12. 84 The right to counsel guaranteed by the Sixth Amendment is indeed the right to effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 687-688 (1984), the Supreme Court ruled that to establish ineffective assistance of counsel, a defendant must demonstrate (1) that counsel’s performance fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the outcome. The goal, however, is not to grade counsel’s performance, but to ascertain whether the attorney’s conduct caused an unreliable outcome. Id. at 688.

And while it is the client that should always maintain control over the defense, “[t]he adversary process could not function effectively if every tactical decision required client approval.” Taylor v. Illinois, 484 U.S. 400, 418 (1988). Counsel need not pursue a legal issue if it seems strategically unwise to raise. Jones v. Barnes, 463 U.S. 745, 753-754 (1983). However, certain decisions remain personal to the defendant. E.g., Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942) (the decision to forego a jury trial); Boykin v. Alabama, 395 U.S. 238, 242-244 (1969) (the decision to plead guilty); Brookhart v. Janis, 394 U.S. 1, 7-8 (1966) (the decision to plead not guilty).229

Other choices by defense counsel constitute a deprivation of effective assistance. For instance, failure to file a suppression motion may amount to ineffective assistance where the issue has merit, and there is a reasonable probability that absent the excludable evidence, the verdict would have been different. Kimmelman v. Morrison, 477 U.S. 365, 375, 385 (1986). The failure to investigative and present important mitigating evidence in a capital sentencing proceeding may also constitute ineffective assistance. Williams v. Taylor, 529 U.S. 362, 396-397 (2000); see also Wiggins v. Smith, 539 U.S. 510, 537-538 (2003) (considering counsel’s failure to follow up on investigative leads). 230

There is, of course, a strong presumption that defense counsel has performed reasonably. Even the best of attorneys may not necessarily represent the same client in the same way. But some errors raise a presumption of prejudice for Strickland purposes. This is a rare scenario, where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” E.g., United States v. Cronic, 466 U.S. 648, 659, 662 (1984) (where lawyer was ill-prepared and inexperienced during complex white collar criminal prosecution).

229 The Strickland standard applies to both the guilty plea context (Hill v. Lockhart, 474 U.S. 52, 57 (1985)), as well as on appeal. Smith v. Murray, 477 U.S. 527, 536 (1986). 230 However, counsel’s “duty to investigate does not force defense lawyers to scour the globe on the off-chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). 85