Need To Know Basis Only

Many years ago, I shared offices with a couple of guys, Paul Goldberger and Larry Dubin.  They were kinda big deals, and big deals got big fees. Their firm, Goldberger & Dubin, got big fees. Big enough that when paid in cash, Form 8300 was required by the IRS, and the form required, inter alia, the identity of the payor.

This was a problem, so they refused. The Second Circuit was unsympathetic.

Section 6050-I stops far short of the forfeiture statutes that were at issue in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) and United States v. Monsanto, 491 U.S. 600 (1989), in which the preclusion of the defendants from using seized assets to pay their attorneys was held not to violate the Sixth Amendment. Section 6050-I does not preclude would-be clients from using their own funds to hire whomever they choose. To avoid disclosure under section 6050-I, they need only pay counsel in some other manner than with cash. The choice is theirs. None of the appellants has advanced a legitimate reason why payment other than in cash cannot be made. Statements such as “[s]ome clients may not have non-cash assets” are somewhat less than persuasive. Equally unpersuasive is the argument that a would-be client might elect to take his business to an unscrupulous lawyer who would ignore the reporting requirements of section 6050-I. Although the unscrupulous lawyer might not be the client’s first choice, the Sixth Amendment does not guarantee the client the right to his first choice.  In Morris v. Slappy, 461 U.S. 1, 13-14 (1983), the Court rejected the claim that the Sixth Amendment guarantees a “meaningful relationship between an accused and his counsel.”

In sum, we hold that section 6050-I passes constitutional muster.

I hated that decision, mostly because a great deal of my work came from representing the nice folks who worked for some wonderful people who, as a benefit of employment, provided legal representation should they get arrested.  And they got arrested a lot.  They were generous with their employees, and never leaned on me to do anything other than my best work for my client. My client was never the payor, but the defendant. It was great work.

This was before the Sentencing Guidelines existed. Back then, the concern was that the employees knew that the boss would take care of them, and their families if they went down. In return, they were loyal to the boss.  The defendant never sought to snitch, not because there was pressure not to, but because it wasn’t yet the way of the world and because mutual loyalty prevailed.

But had I, as lawyer, been forced to send the IRS a form with the boss’ name on it as payor, it would have been a very different situation.  The successful bosses managed to stay that way by being low-key, low-profile. They didn’t drive flashy cars or show off their wealth. They lived quiet, otherwise law-abiding lives. They wanted to stay way below the government’s radar. Way, way below.

Then came the Sentencing Guidelines, and sentence “tolerance” shifted. No longer did a bad case mean a three-year sentence, but a ten or fifteen year sentence. Much as loyalty and love existed, that was too long, so employees started snitching. The boss was now in an awkward position, wanting to take good care of his people, but not inclined to pay for the lawyer who marched them down to 1 St. Andrews Plaza to give up the boss’ name.

Upheaval ensued. Then came the Goldberger & Dubin decision, and the system broke down altogether.  The good days were over. Snitching was rampant. Some bosses let their employees dangle in the legal wind, refusing to go anywhere near them. If the employee wanted a lawyer, it was his problem. No longer was representation a perk of employment. It was done.

Then there were lawyers disinclined to represent snitches. These lawyers were favored by some bosses, who wanted to help their people but not if it meant they would be sharing a cell.  It’s not that they wouldn’t advise their clients about the benefits of flipping, or that it was the only way they would escape a massive prison sentence, but that they wouldn’t push them to do so. Some defendants, presented with a full, fair and honest explanation of the options, chose not to become rats.

Then there were some lawyers who were inclined to do what the boss told them, meaning that they would advise a client not to rat out the boss because that’s what they were getting paid to do. In other words, they worked for the payor, not the defendant.

To the government, the latter two groups of lawyers looked pretty much the same.  It resulted in the shadow counsel problem, where the government would ask the court to appoint a secondary defense lawyer, unbeknownst to the retained lawyer, to speak with the defendant and make sure that the defendant’s desire to snitch wasn’t being suppressed by the lawyer at the boss’ behest.  Defendants, seeing opportunity, occasionally used this against both the boss and lawyer, getting a twofer on their 5K1.1 letter. The sale price was sometimes too good to pass up.

At Hercules and the Umpire, Judge Kopf asks a question: Should a federal trial judge demand to know who is paying the attorney fees?  His reason for asking is one of concern.

There have also been a few times in criminal cases when, for example, a drug or money courier might show up with retained counsel I know to be very good and very expensive, and the courier turns down a cooperation deal, pleads straight up and goes to the BOP for a very long time. Although I am always inclined to trust counsel, that makes me itch all over.

I don’t doubt the sincerity of Judge Kopf’s concern, but in response to his question, unless there is an articulable, objective reason to believe that a lawyer is violating his ethical duty to serve his client and conflicted, and consequently a defendant’s constitutional right to counsel has been undermined, it’s none of the court’s business.  If the court does get involved, it would disrupt the attorney/client relationship and impair the defendant’s ability to retain counsel of his choice.

Even if the payor isn’t his “boss,” but rather a family member, people who are not involved in federal prosecutions usually prefer to keep as far away from the government’s prying eyes as possible. People who are financially responsible often refuse to help with bond because they don’t care to be scrutinized by the government and court, and so less-than-beloved relatives remain in custody.

The same is true of retaining counsel on behalf of a defendant, where the payor is willing to help with money, but less so by getting his name spoken openly in court.  He may want to help. He does not want to be Investigated or have his name put into a government databank.  He definitely doesn’t want to be associated with whatever crime is charged. Nor should he be. There is an adage that no good deed goes unpunished, but it’s meant to be taken figuratively.

If there is a firm basis, susceptible to articulation and scrutiny, to justify the court’s involvement, that’s one thing.  The court is not merely a neutral, but the ultimate guardian of the defendant’s constitutional rights, including his 6th Amendment right to conflict-free counsel.  But protection of one prong of a right can’t come at the expense of another.

So the rule would be to stay the hell out of the matter until there is a damn good reason to get involved. It would cause far more harm than good.  The relationship between lawyer and client is none of the court’s business unless there is a need to know.


17 thoughts on “Need To Know Basis Only

    1. Alex Stalker

      Maybe in the interests of being concise, all your comments could be in the form of a haiku? This one is close. You’re almost there.

      1. John Barleycorn

        I think this cross volley between the judge, who dare goes there and our esteemed host puts yet even a few more things clearly into perspective for me.

        I don’t think even the most elegant haiku could do it justice.
        Not a bad idea though Alex.

        I can tell you one thing though. Even from the cheap seats out here in right field it’s plain to see there is a heck of a lot more going out “there” on the field of play than is readily apparent.

        Not everyone, myself included, has the tools and discipline to take the field.

        I think this post and the post by the judge it responds to, do a pretty good job highlighting yet another subtle but very critical aspect of the game.

        It is all very interesting to contemplate and watch though especially considering that it’s no game.

  1. nidefatt

    Beyond your own need for employment, is there some reason people should agree with your lament? You appear to be describing a collapse of organized crime. Is that not a good thing? Why not question the ethics of the paid professional who appears on the “boss’s” dime? If your concern was the rights of the defendants, it seems a system that offered “shadow counsel” would be best under the circumstances you describe.

    1. Patrick Maupin

      The government appears to have more than its share of bad actors. Are you seriously going to question the ethics of an attorney simply because he is on the boss’s dime, yet not question the ethics of an attorney who is on the government’s dime?

      1. SHG Post author

        Some PDs have a bit of a negative attitude toward private counsel. Not sure if that’s the case here, or why, if it is, but they seem to equate getting paid with unethical conduct.

        1. Mike

          He’s a PD? Unreal. Could he be more antagonistic to the defendant’s rights? And you wonder why defendants ask if PDs are real lawyers.

    2. James

      Did I miss the parade? Was Dubin and Golderberger v US the bullet that won the war on drugs?

      All this does is fuck-over the absolutely lowest man on the totem pole and saves the bosses from having to pay. This is the hysteria of folks who are too smart to realize they’re absolutely insane. They’ll toss laws, destroy aspects of your constitution and deny the ethics of the attorney involved all so they can fail again tomorrow.

      Even if it’s not the bosses paying, but rather a family member… Do they deserve to be investigated, have their lives be dissected under the gaze of the state? How do we know that abuela’s cheque wasn’t cut from her coke empire, how can we be sure she isn’t a rvial to the Sinaloa without ripping up her life? We need to be sure, cuz drugs!

      This is what institutionalized failure looks like, laws designed around the outlier that snatches up everyone else. Rules governed by mania so people can feel useful while they annihilate lives and get themselves ready to lose tomorrow.

    3. SHG Post author

      I see I’ve gotten here a bit late, and others have already replied. I anticipate that some readers will be able to see not only the express things mentioned in my posts, but extrapolate from that how it would play out and the consequences. Some can. Some cannot. The ones who cannot ask questions like yours. There are a bunch of permutations on the theme, none of them good for the defendant. Your question, frankly, is deeply disturbing, as you see no issue with undermining the constitutional rights of those you delightfully describe as “organized crime”?

      So you, like many prosecutors, only think the people you deem worthy deserve to have constitutional rights? Not what one would expect from a public defender. Perhaps you would be more comfortable at the other table?

  2. Charlesmorrison

    The entire idea of inquiring into the defense counsel-client relationship, in any manner, ought to feel inherently wrong to other attorneys. Maybe not the general public, but that is understandable as they don’t really have a foundation to appreciate the relationship as attorneys and clients do.

    Seriously, having someone else look into whether a defense attorney “is really looking out for the client ” is offensive.

    And, isn’t this all handled by the plea colloquy anyway? According to every appellate court I’ve ever seen, when the defendant responds affirmatively that no one has coerced or pressured them into taking the plea, etc. that’s the end of it. There’s no way the attorney could have possibly pressured them, right? Motion to withdraw plea denied!

    Is it only when someone else is footing the bill that the defendant’s words are less than gospel in that respect.

    However, as I write this, perhaps my position is changing as I consider the possibilities for everyone to have a third party inquire into the work the attorney’s are doing. If shadow defense counsel is cool, I propose shadow prosecutors and judges as well. If we have reason to believe a prosecutor is being unreasonable or hiding Brady material, I can secretly ask for a shadow special prosecutor to review the case and the file. If the judge is denying reasonable requests or incorrectly ruling on pre-trial motions, I’ll request a shadow judge that can step in and ensure the judge acted appropriately.

    Or, is it just us that must be looked after?

    1. william doriss

      Excellent thinking and a v. good comment. I have had thoughts along these lines/coming close to
      this, but not nearly as well articulated. Bravo! You get the First Prize of the day.

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