Imagine that you and the company you work for are under federal investigation. The company's lawyer sends you a letter offering to jointly represent you and the company. The company's lawyer also notes that based on her "present knowledge of the facts," she does not anticipate that any conflicts between you and your company.
Do you accept?
You had better think twice, especially if the company's lawyer is Lois Rosenbaum. See United States v. Stringer, No. 06-20100 (9th Cir. 2008) (opinion) (stating that Rosenbaum handed over "potentially incriminating evidence" about one client, "apparently in order to further of interests" of her corporate client).
An employee named Mr. Samper allegedly made a fraudulent accounting entry (the "Swedish Drop Shipment"). Although the government was investigating Samper and his employer, FLIR, the government did not uncover the existence of the Swedish Drop Shipment. After concluding its investigation, the SEC filed a civil complaint:
The SEC civil complaint, filed on September 30, 2002, two years after the joint representation began, did not allege a charge relating to the "Swedish Drop Shipment." After Rosenbaum received a copy of the complaint, she called the SEC Staff Attorney, disclosed the existence of the "Swedish Drop Shipment," and facilitated SEC interviews with [another company employee] in order to enhance the level of FLIR's cooperation with the government.
Rosenbaum also sent a memo to the SEC that contained possibly privileged communications she had with Samper about the transaction. The criminal indictment later charged that Stringer and Samper created the false entry. Thus Rosenbaum, while representing ... FLIR, apparently in order to further the interests of FLIR, assisted the SEC’s investigation.
Id. at *9719. The attorney-client privilege is as close to religious dogma as exists in the law. Here, the attorney-client privileged was allegedly breached in order to benefit another client. Unfortunately, the evidence against Samper won't be suppressed because:
there was no deliberate government interference here. The government did not deliberately intrude into the relationship between Samper and Rosenbaum when it accepted potentially incriminating evidence from Rosenbaum, nor was Rosenbaum a government informant whom the government sought out.
Id. at *9729. Noting that Rosebaum was not a government informant could indeed be damning her with faint praise. The case is unfortunate. If the Ninth Circuit's allegations are true, Rosenbaum's conduct is scandalous.
Even if the allegations are true, it is also unlikely that Sampler could win a legal malpractice lawsuit against Rosenbaum. Although I have not researched Oregon law: Under the law of most states, you cannot win a malpractice suit against against your criminal lawyer unless you are factually innocent. Here, it seems Sampler may be guilty - though we'll need to await a jury's final say-so.
The only justice Mr. Samper will get is on this blog page. Maybe Samper's story will spare others his fate. Though, alas, it's little solace to a person to have his life serve as a cautionary tale.