Thursday, February 23, 2012

Hand Gestures

A conviction for federal witness tampering involves moral turpitude per se and thus requires disbarment, according to an opinion issued today by the District of Columbia Court of Appeals.

A provision of the District of Columbia Code (11-2503(a)) has been interpreted to make disbarment mandatory for a moral turpitude conviction. had this post on the criminal case:

...the evidence at trial showed that [the attorney] tampered with a potential witness. According to testimony, on November 12, 2003, a Special Agent of the Federal Bureau of Investigation contacted the relative to conduct an interview regarding her knowledge of matters relating to the drug conspiracy, including the whereabouts of the girlfriend’s minor son. Blair advised the relative not to tell the FBI about the drug dealer’s cash from the safe, and that if the FBI asked about the money, to provide false information. A witness testified that Blair even had her rehearse hand gestures to make when questioned by the FBI.

The attorney's obstruction of justice conviction was reversed on appeal by the United States Court of Appeals for the Fourth Circuit.

The court affirmed a conviction under 18 U.S.C. section 1957. The court majority found that the "safe harbor" provision of the statute for payment of legal fees did not ptotect the attorney's conduct:

Congress did not, for example, intend for § 1957(f) to empower a drug lord to sprinkle money around to hire counsel for his underlings.   This would undermine the attorney-client relationship.   Where would the lawyer's allegiance lie in such a situation?   Would it run to the person the lawyer represents or to the kingpin footing the bill?   The possibilities for serious conflicts of interest are significant, and the unity at the core of the attorney-client relationship would be fractured.   No longer could we be sure that the attorney was truly the client's champion, acting in the client's best interest.   Indeed, the personal probity that allows defense counsel to effectively represent the accused would be compromised, if not lost.   Congress drafted § 1957(f) to avoid this damaging state of affairs and stay true to the personal nature of Sixth Amendment rights...

However one may view the matter, [the attorney's] conduct falls far outside the safe harbor provision.   [He] used someone else's criminally derived proceeds to bankroll counsel for others.   Specifically, he drew on Rankine's drug money to fund the legal defense of the man charged with murdering Rankine and others.   See supra p. 763 n.2. (Bernard eventually pled guilty to murder during a conspiracy to distribute drugs.)   Id.

To apply § 1957(f)(1) on these facts would invite the worst kind of abuses.   It would subject the ethical standards of the bar to the most formidable pressures and temptations.   It would enable the Al Capones of our day and time to underwrite counsel for their underlings, thus maximizing the power and leverage of the top figures in criminal syndicates.   And it would compromise the attorney-client relationship for their subordinates by creating an appearance at least that the lawyer may be more attuned to and protective of the interests of the czar funding the defense than to the actual accused.   It takes little effort to envision the numerous circumstances in plea negotiations and at trial where the interests of someone heading a criminal enterprise may be sharply at odds with those of one or more of its members, but Blair's position would place attorneys in a situation so riddled with conflict that courts would be hard-pressed to uphold it.

Allowing those in [the attorney's] position to freely fund counsel for their associates carries other risks as well.   Among the great assets the accused enjoys in our system is the unquestioned integrity of the criminal defense bar.   In one sense, the attorney-client relationship is an indissoluble bond.   But in another, there is a degree of separation in that an attorney whose own integrity is complete and unquestioned is able to champion those accused of the worst sort of crimes.   This duality has served the interests of justice, and we should be loathe to let it go.   Yet if criminal figures are permitted and encouraged to take criminally derived proceeds from others in order to bankroll attorneys for still others, what would we have then?   If the public or the jury should come to associate attorneys more closely with underlying criminality, the chief loser will be that person whose rights the system is solemnly sworn to defend.   We do not have that now, and we pray we never will.

 Chief Judge Traxler dissented on this point:

I cannot subscribe to the view that the “safe harbor” provision Congress created to shield criminal defense attorneys from prosecution under § 1957 is no longer effective.   I do not believe this view is consistent with the statute.   Moreover, I am troubled by the potential fallout from the elimination of the protection Congress afforded legitimate criminal defense attorneys when they accept bona fide legal fees from clients charged with or suspected of drug trafficking and other criminal conduct.

[The attorney's] conduct was unquestionably reprehensible, and it was particularly offensive to members of the legal profession.   The actual text of the statute, however, constrains me to conclude that the two transactions in question—which secured competent, legitimate criminal defense attorneys for Saunders and Bernard—are exempt from prosecution under § 1957(f)(1).

(Mike Frisch)

Bar Discipline & Process | Permalink

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