Had she been working off a case, having gotten caught for her own misdeed and doing what she could to save her own skin, there might have been some comfort taken in the parity of scoundrels. After all, there is no honor among thieves, so it would have been entirely understandable for one person devoid of integrity to save her own skin at the expense of another.
But that wasn’t the case at all, and her decision to become Informer 3838 was one of conscience.
In what is considered one of Victoria’s biggest legal scandals, it was revealed on Monday morning that the female criminal barrister, who operated as Informer 3838 from 2005 to 2009, gave police information about hundreds of criminals.
Some of the criminals were on the lawyer’s own client list and among the biggest names in Australia’s underworld, including jailed drug lord Tony Mokbel and his associate, drug trafficker Rob Karam.
She was a lawyer. A criminal barrister. And she served in that function while ratting out her own clients, as well as others.
In a searing judgment released on Monday afternoon, the High Court said the lawyer fundamentally and appallingly breached her obligations to her clients and the court.
The High Court said the prosecution of each convicted person was corrupted in a manner that “debased fundamental premises of the criminal justice system”.
“The public interest in preserving EF’s anonymity must be subordinated to the integrity of the criminal justice system,” the judgment reads.
Had this happened here, one has to wonder whether the court would have ever learned of the snitch, given our amenability to “parallel construction.” As long as law enforcement can manufacture a somewhat credible claim as to how they learned things they could never lawfully learn, courts do their best to believe and let it slide. After all, the alternative is unthinkable.
“But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield.”
Informer 3838 was promised anonymity by law enforcement, and the court acknowledged both the importance of an informant’s anonymity as well as the value of informants to the system. But this time, when the rat was a criminal defense lawyer, it was too much to take. And for Informer 3838, this meant a lot of angry people.
Informer 3838 claimed her information led to the convictions of hundreds of people.
“There were a total of 386 people arrested and charged that I am specifically aware of based upon information I provided to Victoria Police, but there are probably more because as you would know, I did not always know the value or use of some of the intelligence that I was providing,” she wrote in a letter to police command in 2015.
It would appear that this lawyer was fairly successful, representing some not insignificant people in her practice. Presumably, she was making a decent living at it and was good at her craft. So why would she snitch on her clients, knowing that her duty as a lawyer was to preserve their confidences, to zealously defend them?
She had a mix of motivations for turning “supergrass”, the Court of Appeal concluded, including “ill health, feeling trapped in the criminal world of her clients and frustrated with the way criminals used the system and wanted to be rid of Tony Mokbel and his associates”.
These are all legitimate concerns for any lawyer, any person. The work of criminal defense isn’t for everybody, and managing it in a way that doesn’t trap a lawyer in the world of clients can be difficult. Lines are blurry, and there are aspects of gangster life that can be seductive, particularly for people with a weak moral compass.
But these are reasons to walk away. Go do mergers and acquisitions if criminal defense doesn’t suit you. Or better yet, become a prosecutor. But do not do the one that that fundamentally corrupts a greater system than one lawyers feelings of frustration and dissatisfaction. Don’t rat out clients.
The other half of this tale of systemic corruption relates to law enforcement’s acceptance and use of a lawyer’s violation of her fundamental duty to her clients. That this was “disgraceful misconduct” requires little discussion. That they encouraged Informer 3838 to violate her oath and undermine the system was inexcusable.
But that she did so, that she chose to do so, because her feelings overcame her duty, is the aspect that is most disturbing from the lawyer’s perspective. Much as Michael Cohen appears to have violated confidences, which may or may not be lawfully justified by the crime/fraud exception, at least there is some comfort to be taken from the knowledge that he did so because he was dirty, which may well have been the reason he was that client’s “lawyer” to begin with. It certainly wasn’t his legal acumen.
But for Informer 3838, her feelings alone about the work she was doing, her own health, the people with whom she was working, was all she needed to abandon her integrity, her oath and her responsibility to the law. Non-lawyers may well applaud her, seeing her snitching as a virtue to the higher calling of law and order. But for lawyers, our highest calling is to honor our duty. Or at least, it used to be before feelings were all that was needed to abandon our oath, our clients, our duty.
Everybody has feelings. Do we each get to decide whether our feelings are good enough, important enough, to overcome our responsibility to our clients? Informer 3838 felt so. Her clients thought they had a lawyer, and instead they had a snitch. Can any rational client be certain that his lawyer won’t have similar feelings to Informer 3838? Can the client be certain that the lawyer won’t decide that her feelings trump his rights?