Ugly, But Unfair

It was a cringe-fest.  But of all the cringe-worthy parts of the 60 Minutes story, the worst was when New York lawyer Marc Koplick said this to the undercover investigator for Global Witness:

They don’t send the lawyers to jail, because we run the country.

That Koplik’s spewing is absurd and wrong doesn’t matter. He said it and it was broadcast to a whole lot of people, confirming every fear, every conspiracy theory, every hate, that people have about lawyers.

The best gloss I can put on Koplik’s outrageous and irresponsible mouth is that he uttered the words he felt would sell the investigator on giving him money, making it the pitch of a whore who will say anything for a buck. That’s being nice to this Yale law grad and former Biglaw attorney. What a piece of shit.

The 60 Minutes segment was about a setup by Global Witness about money laundering by a putative African public official who sought to spend huge sums of money, he couldn’t possibly have earned legitimately, in the United States, while concealing his identity.  They went to 13 law firms, 16 lawyers, and only one lawyer, Jeffrey Herrmann, refused to play.

The segment was long on the passionate advocacy of Global Witness, decrying the fact that the United States, and particularly its lawyers, were complicit in the money laundering of bad dudes who committed bad acts outside the country. It caught in its web James Silkenat, former president of the American Bar Association.  It was cautious in noting that the lawyers were not committing a crime, though a Columbia ethics prawf, Bill Simon, made clear that while revealing the sausage making inside a law office was unseemly, he believed it was worthwhile exposing what happened.

Steve Kroft: You think it’s valuable that the public sees it?

Bill Simon: Yeah. I think it’s very valuable. Confidentiality is for the benefit of the client, not the lawyer. But the lawyers benefit from it because conduct that goes on under the protection of confidentiality is never scrutinized by the public. And lawyers are never accountable for it. So the sting actually brings some accountability to conduct that oughta be accountable.

Notably, the lawyers involved in this sting were all business lawyers, the ones who create corporations and their kin. That there was no technical crime is predicated upon the fact that the funds involved (and the clear implication was that they were illegally obtained) were the product of crime outside the United States, such that it was not a crime to conceal the identity of the phony African official here. A moral wrong, for sure, but not a legal wrong, per se.

Whether this sort of business comes to civil lawyers with enough regularity for them to think this through is hard to say. How many people show up at a lawyer’s office with $50 million in graft money to conceal?

To criminal defense lawyers, the nature of this consultation is not only more normal, but anticipated.  People come to us all the time to seek our advice and counsel on how to better, more successfully, commit crimes and not get caught.  Consequently, we’re not taken by surprise when it happens, and we smile as we calmly explain that we represent people accused of crime; we do not help them commit crimes. No, not even for money.  Not even for a lot of money.

Is this true of all criminal defense lawyers? Sadly, no. And sometimes, they get caught doing the dirty, usually when those same clients who sought their advice get nabbed, and immediately offer to flip on their lawyer.  There’s an interesting irony in there that shouldn’t escape anyone. Play with fire, live by the sword, pick your fav slogan.

What I suspect this story represents is civil lawyers, for whom a lucrative, and potentially lawful, opportunity presented itself, but for which they were unprepared. There are perfectly lawful and legitimate reasons why people want to conceal their identities when using their funds, and that’s one of the things they do. That they were sandbagged with the deliberate stench of money illegally obtained outside the country was not something they were expecting, something they were prepared to process as the consultation unfolded.

The hope is that upon reflection and further information that confirmed that they were being asked to launder dirty money, they would refuse to do the job. Jeffrey Herrmann processed it immediately. Others, like Silkenat, took longer.

It’s unfortunate that Steve Kroft failed to offer any commentary other than that which condemned the lawyers. Not that its likely that anyone would contend that what appeared on screen was cool, but that there were legitimate reasons for people to seek legal representation to protect their privacy that didn’t involve laundering illegal funds, that these lawyers may well have started down a path of facile assumption, motivated by a decent payday, that maybe this didn’t smell as badly as it seemed to smell.  There was nothing to temper the presentation that these lawyers were just total scum, happy to be complicit in moral, if not legal, wrongs to line their pockets.

As Eric Turkewitz reminds civil lawyers who may be confronted with the opportunity to do bad, the default reaction shouldn’t be to try desperately to find a rationalization to be complicit in wrongdoing, but to just say no.

For most criminal lawyers, the strain to find something not offensive in these lawyers’ handling of the consultation is asking too much. But then, we’re familiar with potential clients asking us to do things we aren’t allowed, and would never agree, to do. These lawyers may never have had to confront being in that position, and handled it poorly.

On the other hand, there is no excuse for Marc Koplik, who is a disgrace to every lawyer with any integrity whatsoever.

40 comments on “Ugly, But Unfair

  1. losingtrader

    Speaking as an armchair psychologist (no idea what that means but my high school freshman English teacher used it to describe one of my papers) I think this is about something else–oh, say , maybe Brafman took Shkreli instead of him coming to you.

  2. Patrick Maupin

    To criminal defense lawyers, the nature of this consultation is not only more normal, but anticipated.

    It seems likely that experienced criminal lawyers would always have at the back of their minds that any given situation could be a sting, as well.

    These lawyers may never have had to confront being in that position, and handled it poorly.

    Sucks to be them, fodder for the TV ratings wars. The only silver lining in this cloud is that it might nudge a few smart but naive attorneys into thinking about scenarios they had never contemplated, and having the correct response ready on auto-pilot. That will have the added bonus of making both this sort of sting operation and the purported crime it represents far more unlikely to be successful in the future.

    1. SHG Post author

      The problem is that the damage to lawyers’ trust and reputation will be exacerbated nonetheless, and the harm to those who aren’t corrupt African officials is already happening. Because of the one-sided nature of this story, and the huge audience that watched it, there will be Menckian harm done.

      1. Turk

        The worst part about the harm to attorneys is that it remains hidden in the minds of people, only to reveal itself when they become deeply cynical jurors. And then harms the clients.

        1. SHG Post author

          The “worst part” is relative. I suspect it’s somewhat different from a PI lawyer’s perspective than a CDL. It’s always worth remembering that our cynical juror issues are different, and that the creation of news crimes and means of investigation is more of a problem for CDLs than jurors who always assumed all defendants to be guilty.

      2. Patrick Maupin

        Hmm, maybe I didn’t emphasize only enough. 60 Minutes certainly didn’t help, but OTOH, with their own low rep, it’s hard to imagine they’re going to damage lawyers too much. Doesn’t the lawyer-hating crowd watch Fox News? Time will tell.

        As far as legal damage goes, it’s become increasingly apparent that Conservation of Outrage means that the ever-present compulsion to DO SOMETHING cannot be reigned in; only redirected. Maybe if we get the outrage directed away from the War On Drugs, we can change the equation with Quaaludes and Prozac for all.

        1. SHG Post author

          60 Minutes certainly didn’t help, but OTOH, with their own low rep, it’s hard to imagine they’re going to damage lawyers too much.

          Imagine how much more comprehensible and meaningful this sentence would be had you not used “their” and “they’re,” clarifying who you were talking about. I assume you mean “lawyers,” but then, you write “they’re going to damage lawyers too much,” meaning “lawyers are going to damage lawyers too much.” Because that makes no sense at all. Clarity matters.

          1. Patrick Maupin

            SHG is a demanding taskmaster. SHG requires simultaneous brevity and clarity. Fortunately, SHG doesn’t seem to mind when SHG used as an initialism. This sometimes makes it easier to meet these twin goals when commenting on one of SHG’s posts.

          2. Patrick Maupin

            “60 Minutes certainly didn’t help, but OTOH, with 60 Minutes’s own low rep, it’s hard to imagine 60 Minutes is going to damage lawyers too much.”

            I can never figure out whether to add that second s after the apostrophe.

            1. SHG Post author

              Never would I have suspected that to be the sentence you intended. And I am against the use of the second “s,” though others disagree.

  3. Patrick Maupin

    Never would I have suspected that to be the sentence you intended.

    I obviously assumed too much for the reader’s mindset. The reporting that 60 Minutes did on Audi and Benghazi were exemplars of the reality TV genre — bad enough to almost make some of Fox’s reporting actually look fair and balanced.

    1. SHG Post author

      It’s not that I can’t imagine 60 Minutes being unbalanced, and made that clear in my post. It’s just that there was nothing in your sentence that suggested to me that the vague “they” referred to 60 Minutes.

      1. Patrick Maupin

        Although studies have shown that redundancy is useful in language, computer programmers hate repetition so much that they actually have a rule against it, because a computer program is essentially a contract that is made with an intransigent hostile party who remembers everything you told it, analogous to the worst genie-misinterpreting-wish stories.

        A computer should have figured out that the first noun in that sentence was the subject for the entire sentence, but as you point out — a human, not so much.

        My apologies for the lack of clarity.

    1. SHG Post author

      The story failed to offer any balanced commentary. Not that the criticism of lawyers was necessarily wrong, but it left the viewer stupider for having watched it because of the lack of balance.

      1. Jake DiMare

        The context: “Yeah, but technically what they did isn’t illegal.” doesn’t materially change our shared perception that these guys are lowlives in expensive suits. Or was the 60 minutes piece intent to leave us believing they are also criminals?

        1. SHG Post author

          I can’t be responsible for you reading challenges. You have a tendency to pull out one line, as if that’s all there is. Try harder.

          1. Jake DiMare

            I do have a tendency to look at the big picture in a way that I am aware drives you crazy. Sorry senpai. It’s how my brain works and why I’m so good at the ways I am useful to society.

  4. DRF

    My reaction to the story was much like yours. It would have been interesting — and fairer — for the “investigators” to call these lawyers back a week later and then tell us what the lawyers said. I suspect at least some of the lawyers would have said that, having considered the circumstances and, perhaps, having conferred with colleagues, they would not be comfortable with the engagement.

    1. SHG Post author

      Had the investigator called back a week later, it would have been a far more meaningful test of the lawyers’ integrity than sandbagging them. But he didn’t, and the show went on.

  5. pavlaugh

    Koplik’s comments were scummy for sure, but I don’t get why anyone (especially a criminal defense lawyer) is calling the proposed transaction, in general, a “moral wrong” when the transaction would be legal. Plenty of people might say you’re morally wrong for getting charges dismissed against a defendant based on a “technicality” like an illegal search or insufficient indictment. I doubt you think you’re committing a “moral wrong” when you do that. And I don’t see a significant distinction here. Lawyers zealously using the laws available to benefit clients. If there’s a problem with the law, then there’s a problem with the law, and the Legislature or whoever can fix it.
    Full disclosure, of course, I haven’t watched the 60-minute special.

    1. SHG Post author

      The only reason the concealment transaction wouldn’t be illegal here is that the underlying crimes were committed outside the jurisdiction. Facilitating someone’s successful commission of a crime is a different issue than defending someone accused of committing a crime. I don’t abet crime; I defend against prosecution. The two are distinct. It has nothing to do with whether I can legally get away with it, but that I choose not to abet crime. I would hope most lawyers would make the same choice as a matter of morality and personal integrity.

      1. MasJeans

        Was what they were proposing even completely legally clear?

        My general (completely uneducated and worthless) intuition about the state of Federal criminal statutes is that there would be something like the Foreign Corrupt Practices Act waiting in the wings to screw these guys if they actually went through with it.

        Could a particularly feisty prosecutor pin something on them for something like this, handling business affairs that they theoretically know are the result of criminal behavior overseas?

        1. SHG Post author

          It’s impossible to say whether it was “completely legal” since there was a huge lack of detail (because it was all a fake). That said, the jurisdiction would seem to negate much of the problem, and the FCPA doesn’t apply to an Africa official engaged in corruption in Africa (even though US prosecutors might disagree, as they believe they have worldwide jurisdiction). Is it possible facilitating it coming in the US could be illegal? It’s possible, but off the top of my head, I can’t think of a reason why.

          1. Patrick Maupin

            > off the top of my head, I can’t think of a reason why.

            Maybe the money was made by pimping underage girls to American sex tourists.

  6. OEH

    Writing on a completely different topic, Judge Kozinski uses a similar reasoning:

    “It makes no sense to give police, who often have to act in high pressure situations where their lives may be in danger, only qualified immunity while giving prosecutors absolute immunity. It is a disparity that can only be explained by the fact that prosecutors and judges are all part of the legal profession and it’s natural enough to empathize with people who are just like you.” (Crim Proc 2015)

    I suspect there is probably some truth to the idea.

    1. SHG Post author

      I think Judge Kozinski’s math is very wrong here. It’s not about the legal profession, as notably only prosecutors get absolute immunity, not defense lawyers. Rather, that judges see prosecutors as holding a unique position as some sort of “ministers of justice” on behalf of the public, and thus forgiven their sins for the greater good of enforcing the law and protecting the people from crime. It’s a special subset of the profession, and the courts’ largesse does not extent to the profession as a whole.

      1. Alex Bunin

        Judge Kozinski is generally a very smart guy, but I agree that his scales of justice are askew here. Speaking of bad math, did I hear that law prof say that the former ABA President was laudable because he also threatened to give up the client if the deal turned out to be a crime? I do not think merely being told about a potential crime creates an exception to the attorney-client privilege. I get told about potential crimes all the time, but unlike these guys, I explain why it is a bad idea. I don’t call the DA.

          1. Alex Bunin

            Sounds like a real boon to crime fighting. I will just get clients to sign a confession at the initial interview in order to facilitate plea bargaining. See, this is why they need lawyers — expedience.

  7. Willis

    Thanks for linking to the 60 Minutes transcript. I misread one of the names as “Chairman Gooch”, which for whatever reason amused me greatly.

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