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.