Legally Speaking: The tricks of the trade

John G. Browning Mar. 18, 2008, 9:00am

Trickery and deception are things that society tends to associate with the legal profession.

Clients will sometimes ask me if I can secretly tape a conversation with a witness (I can't), or pull some other type of underhanded move, and I have to explain the strict ethical boundaries within which I have to operate.

Why do people feel that subterfuge is some form of fair play? Perhaps it is because popular culture frequently depicts lawyers engaging in one ruse or another: for example, James Spader's antics in "Boston Legal," or Tom Cruise's Navy lawyer in "A Few Good Men" bluffing with the sudden courtroom appearance of two witnesses who as it turns out (after their mere presence causes a key witness to say too much) remember nothing at all.

Or maybe it's because we see devious conduct as a part of everyday life. Police sometimes trick people evading outstanding warrants by sending them phony notices that they've won a prize or are invited to a big party – where as it turns out, the only prize is a set of handcuffs and all the party guests are wearing badges.

The former chairwoman of Hewlett-Packard resigned in the wake of a scandal about spying on members of her board. The head of a major auto insurer had to publicly apologize last year when it came to light that two private detectives hired by the company went undercover to join an Atlanta church group in order to gather damaging information on two church members suing the carrier over a 2004 traffic accident.

The private investigators had talked their way into a support group where church members discussed such things as sexual orientation or drug addiction, and taped the sessions. Despite the CEO's apology, a lawsuit was filed against the company and its detectives for fraud and invasion of privacy.

Joseph Winstead, a postal worker in Washington, D.C., told his employer he had been called to jury duty in an extended federal trial, and was serving for months – when in fact he had been excused. He stayed away from work for 144 days, fabricating paperwork to support his claim and scamming nearly $40,000 in unearned wages from the government. Winstead was caught and pled guilty to fraud charges last month – after spending some time in the federal courthouse after all.

Perhaps another reason why we associate lawyers with deception is because, well, lawyers can be devious.

Take, for example, Kevin Curry, Gary Crossen, and Richard K. Donahue Sr., three Massachusetts lawyers with previously spotless reputations. These attorneys were representing litigants in a shareholder derivative case brought by one branch of a supermarket chain-owning family against another, and they felt that the judge had "fixed" the case. So to investigate the possible bias, they concocted an elaborate ruse to pump the judge's law clerk for information.

The lawyers set up fake job interviews for the clerk in Nova Scotia, Manhattan and Boston, wining and dining him, and secretly taping the discussions. After the former clerk had made comments incriminating the judge, the lawyers allegedly revealed their true motives and threatened to expose him. The former clerk responded by going to the FBI, and then wearing a wire to secretly record the lawyers.

Although an FBI investigation determined that the lawyer's actions were "not illegal," the Massachusetts Supreme Judicial Court and the state's Board of Bar Overseers came down hard on the lawyers. Donahue was suspended for three years.

As for Curry, Chief Justice Margaret Marshall found that he "caused needless embarrassment to a judge, an attorney, and their respective families; mocked the foundations of good-faith dealings and respect for the orderly administration of justice on which the legal profession stands; and damaged the public's perception of our legal system."

Crossen's behavior, she wrote, was not "on the uncertain border between zealous advocacy and dishonorable tactics," but rather was "so egregious and extensive that the reasonable attorney could have believed it comported with the solemn ethical obligations of attorneys." Both Curry and Crossen were disbarred.

What makes this outcome even sadder is the fact that all three were prominent attorneys who should have known better – Crossen, in fact, was the former ethics counsel to two Massachusetts governors, and Donahue was a former chairman of the Board of Bar Overseers.

There have been numerous other instances of what the American Bar Association has characterized as a major debate in legal circles in recent years: can lawyers ethically participate in covert activities?

In 2000, the Oregon Supreme Court reprimanded a lawyer who posed as a doctor in phone calls to an insurance company he was planning to sue. And last year, a prominent Wisconsin criminal lawyer's conduct went to the very heart of this debate.

Stephen Hurley, who has represented clients ranging from a former governor to NFL star Ron Payne, was defending Gordon Sussman, a Madison, Wis., businessman accused of sexually assaulting a boy and possessing child pornography. Hurley wanted to show that the boy himself was accessing child pornography on his own and that Sussman had not introduced him to it. But to do that, he needed access to the alleged victim's computer.

Hurley hired a private investigator named Sheridan Glen to obtain the computer through a ruse. Glen sent the boy a letter from a phony Illinois company named Thermetric Inc., which claimed to be researching students' computer use. The letter, signed "Glen Sheridan," said "You have been selected to receive a brand new Hewlett Packard laptop computer, free of charge" in exchange for turning over the old computer.

Glen traveled to the boy's home and made the swap; soon thereafter, however, the child's mother became suspicious and contacted authorities. Although an analysis showed hundreds of pornographic images on the computer (including 28 involving children) a judge refused to allow the evidence to be admitted. Sussman was found guilty of assault and possessing child pornography; he maintains his innocence and is appealing.

Wisconsin's Office of Lawyer Recognition brought charges against Hurley, arguing that he had violated rules against engaging in "dishonesty, fraud, deceit or misrepresentation." Hurley responded by saying that the deception was justified and that it was no different than a prosecutor who oversees police sting operations.

"Given that the defense does not have the police at its disposal, this was the only means to obtain this exculpatory evidence," Hurley's lawyer wrote. "The defense was correct in its instinct as this computer did contain relevant pornography."

Other defense lawyers have voiced support for Hurley, including Jack King, spokesman for the National Association of Criminal Defense Lawyers, who said "I don't feel the guy did anything unethical as far as the professional responsibilities rules go."

In Texas, such a situation would fall under Rule 4.01 of the Texas Disciplinary Rules of Professional Conduct.

This provides that, in the course of representing a client, a lawyer shall not knowingly "a) make a false statement of material fact or law to a third person; or b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client."

So, despite what the public may think about lawyers being tricky, the legal profession really does try to hold its members to a higher standard.

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