Crime & Federalism

Computer Associates hired Kaye Scholer to represent Irene Salvatore, the vice president of the company.  Computer Associates was under investigation for numerous criminal violations, and ultimately, several executives were indicted. Acting on the advice of counsel, Ms. Salvatore fully cooperated with the investigation.  She was ultimately fired, though fortunately was never indicted.

Ms. Salvatore sued Kaye Scholer lawyers, arguing they had a conflict-of-interest when representing her.  Her claim is interesting - and if what she alleges is true - it is also meritorious.

First off, there's nothing unusual about a company paying its executives' legal fees for business-related investigations: many executive compensation packages require the company to do so.  The lawyer, though paid by the company, still owes her loyalty to the executive.  So long as the lawyer remembers that these situations are an exception to the he-who-pays-the-piper rule, there is nothing problematic with such an arragement.

However, according to Salvatore's complaint, Kaye Scholer lawyers only advised her of one option, and it just so happens that the one piece of advice they gave her, was the piece of advice favorable to Computer Associates.  If this is true, then it indeed seems like the lawyers were not looking out for Ms. Salvatore.

Good lawyers would have (and, indeed, the Kaye Scholer lawyers might have) told Ms. Salvatore that she need not cooperate with the internal investigation, but that failure to cooperate with the investigation would likely mean she would be fired.  An off-the-cuff advisement go like this:

Irene, you don't have to cooperate with the investigation. But since you're an at-will employee, you will likely be fired if you don't cooperate.  However, if you have done anything wrong, cooperating will not only get fired, but might also get you indicted.  And even if you did nothing wrong, you still might be fired as companies under investigation often scape-goat executives.

The choice is yours, of course, but if you did anything  even remotely against the rules, I would advise against cooperation.

Ms. Salvatore might have nonetheless cooperated after being advised of her options.  But according to her complaint, she was not given those options.  If that is true (and her claims have not been tested at trial, so there's no reason to presume they're true), then it would seems that her lawyers did have a conflict-of-interest.  After all, why would a lawyer not fully advise his client?

It will be interesting to see what happens with this case.  I'm no expert on legal malpractice actions, so I wonder what her measure of damages will be.  She was fired, after all, but she should have been fired if she had received a full advisement.  Anyhow, I expect this case to settle quickly.  It's bad enough that Kaye Scholer has already had it's name in the New York Law Journal.  Continuing fighting the case would likely lead to more publicity.  When it comes to ethical issues and lawyers, it's untrue that all publicity is good publicity.

I am sure I am not alone in getting bizarre emails. Check this one out. I am hoping the writer dies a timely death, and soon.

Has Connecticut gone mad?  It sure seems so, as they are now requiring applicants to its state bar to disclose whether or not they are depressed.  Specifically, applicants are now required to answer this question:

During the last ten years, have you been treated for any of the following: ... major depressive mood disorder ..."

What do you all think?  Should an applicant be required to disclose this?  Does the public need protection for someone who has suffered depression?

UPDATE: Raymond Ward comments here.

The long knives are out, sharp and dangerous on the Connecticut Supreme Court this week. I half expect to see the head of one of the justices on a pike when next I appear at the courthouse.

It all started when former Chief Justice William Sullivan abruptly announced his retirement. The governor, Jodi Rell, a Republican caretaker filling the balance of a term left vacant when Gov. John G. Rowland was convicted of a felony and packed off to prison, appointed the court's lone Republican to be chief justice. His name is Peter Zarella. The Legislature asked for time to prepare for confirmation hearings. "No," cried the governor: "I want what I want when I want it."

What Rell got was egg all over her face and all over the facade of the Court.

It turns out departing Chief Sullivan sat on a controversial decision in which Zarella was part of a majority that voted to keep certain court records private, a decision sure to anger some lawmakers. Rather than publishing the decision in due course, Sullivan directed that it float in limbo for a while, hoping the Zarella nomination would be pushed through before anyone got too wound up.

When fellow justices wondered what became of the decision, all Hell broke loose. The acting chief, David Borden, has now written a letter to the Judiciary Committee complaining of misconduct by the former chief. And Sullivan himself has fessed up to manipulating publication of the decision to benefit his favored son. Undeterred by all this sleaze, the Republican majority of the state's Judiciary Committee nonetheless voted to approve the nomination. Soooooooo-eee

This morning, Zarella is playing pope.Quite a fella, that Zarella He has withdrawn his nomination because he won't get a full hearing before the Judiciary Committee and therefore can't be appointed during the current term of the Legislature. In other words, he is not closing the door to appointment. He just wants to be asked again. That's the same old Karaoke sung at the College of Cardinals where soon-to-be Popes are expected to modestly decline the nomination before accepting.

This unseemly gamesmanship on the state's highest court is discouraging. Is the court doing justice, or are the justices merely doing one another in?

Former Chief Justice Sullivan will not be remembered for decisions of brilliance, or for leadership of the Court during a period of growth and achievement. He will be remembered as a man appointed Chief Justice by a governor convicted of corruption and sent to prison. He will be remembered as the chief who played politics and got caught, causing scandal and undermining public confidence in the Court.

I hear that Oyez may no longer be the means by which the court is opened. Some thought is being given to a cry of Sooooooo-eee.

I stumbled across a good little book last weekend that is worth sharing. It's called Tort Reform, and it was written by Paul Ruschman.

It is a very basic book identifying fault lines in the debate about whether the tort system needs reforming, and it's part of a series of works called "Point/Counterpoint." Chelsea House appears to have published a couple of dozen other volumes on public policy issues in the law. Volumes that caught my attention include Phyisican-Assisted Suicide, Search and Seizure, and The War on Terror.

There is a brief bibliography at the end of this volume that I found useful. If you want a quick and generally reliable introduction to Tort Reform, here is the place to start.

Consider the following: Municipality X permits its police chief to go to trial in a claim arising under 42 U.S.C. Section 1983. The claim at trial is that the chief plays favorites with supporters of the mayor. Officers get punished for arresting the mayor's friends.

The jury is outraged, and awards $100,000-plus in compensatory damages to an officer punished by the chief, and a whopping $5 million in punitive damages. The chief fails to put on evidence of his capacity to pay in front of the jury. Post-trial, the chief claims he is broke, and cannot even post bond for the verdict.

In post-trial evidentiary hearings the court learns that the chief, who was defended by municipal counsel, was never informed that he might be responsible for punitive damage. The chief was never informed that he might need separate counsel. The city had previously paid punitive damages on behalf of the chief and others. And the the decision on whether to pay punitive damages on behalf of a municipal employee is typically made well after the verdict and post-judgment motions are decided.

What's worse, the city defended the chief and also had an insurer involved. The chief was apparently not even informed that the case could have been settled for a sum well below the verdict. His counsel and the insurance company rejected the settlement. The city moved to withdraw post-judgment, leaving the chief to find separate counsel.

The defendant has filed a remittitur motion.

It is common for municipalities to play hide-the-ball with indemnification decisions, often awaiting rulings on post-judgment motions so that they can hide behind the meager assets of municipal employees at post-judgment proceedings. That is apparently what is being done in this case as the committee responsible for deciding indemnification has not yet made a decision.

Does this pass any conceivable smell test? (I have been brought in to this case to assist on post-judgment indemnification issues, so my nostrils are a little to close to the action.)

My sense is that a powerful argument can be made that the city should be compelled to pay the entire award in this case. Not only has it poorly served the chief, it is playing what amounts to a shell game with the court. A city that agrees, sort of, to underwrite constitutional torts ought to be required to pay the whole judgment. Let taxpayers then decide at the polls if this is a practice the city should continue.

From time to time I stumble on a pleading that almost makes all the paperwork associated with lawyering worthwhile.

In today's pile of stuff to read comes a written motion by a prisoner. He complains that his terms and conditions of confinement are harsh, cruel and unusual. He demands relief. He is, after all, a pretrial detainee. However, he is also a realist.

So after requesting relief and concluding that the state would not give it, he asks to be killed. "[T]he defendant would rather die than continue to be tortured" by certain guards. I love the caption: Defednant's Motion to Die Mandamus.

I believe he is still alive.

This article is way off-topic, but it's too interesting not to link to.  Check it out.

A person who represents himself has a fool for a client.

I was reminded of that maxim while reading an article on the Lynne Stewart conviction in the current issue of the American Criminal Law Review (ACLR). "The Conviction of Lynne Stewart and the Uncertain Future of the Right to Defend," Vol. 43, No. 1, Winter 2006.

Stewart was convicted last year of lending material support to a terrorist organization.  Does her prosecution and conviction spell the end of aggressive criminal defense?

The conviction arose from or her conduct during the course of her representation of Sheik Abdel Rahman, a 65-year-old Moslem cleric doing life plus 65 years for, among other things, conspiring to blow up the World Trade Center and for soliciting crimes of violence against Egyptian President Hosni Mubarek. Conditions of his confinement include a prohibition on communicating with his followers outside prison walls.

But he still has a right to counsel. So he was, and I presume remains, free to consult with counsel. He just can't use counsel as an intermediary to communicate with others. Ms. Stewart agree do do so.

Stewart's downfall was not in providing aggressive defense to the Sheik. Her downfall was letting her politics cloud her judgment. She has long spoken out in favor of "directed violence" as a means of combatting policy objectives she dislikes. When she represented the Sheik, she was, in effect, representing views to which she subscribed. Her judgment was clouded.

I find it far easier to represent folks with whom I share little common ground. All this prattle about "loving" your client and "walking in his shoes" obscures the attorney-client relationship. We defend folks in need and are their advocates within the rule of law. Hence our simultaneous roles as officers of the court and advocates.

Stewart became part of the case she was defending. She became a tool of the Sheik because it suited her private views. She let her representation of the Sheik become personal.

I was dismayed by the conviction of Lynne Stewart, but not terrified. This is not the beginning of the end of aggressvie advocacy. My tail has not shriveled and I do not sit whimpering in the corner during trial. But I do take pains to make sure my role as advocate remains simply that.

The ACLR piece is a good overview of the Stewart case, and of the challenges of representing defendants in cases in which the Government overreaches in terms of limitations on attorney-client communication. Its discussion of what to do when the Government asks you to sign a statement agreeing to these limitations is particularly useful.

Stewart's conviction is a sad event. But it is an event she brought upon herself by shedding her role as mere advocate to become a participant.

Kip's post on Bill Gates is written in a context totally unrelated to jurisprudence, and yet, it best illustrates why so many of us hate so-called balancing tests.  Just about anything can become a "legitimate" interest.