Was That Wrong? Forging Wiretap Orders to Spy on a Romantic Rival.

Yet another love story lands a lawyer in the Was That Wrong column.

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

costanza

Today’s lesson comes courtesy of a Brooklyn prosecutor who suspected that a love interest was actually involved with one of the prosecutor’s co-workers. Both Above The Law and The New York Law Journal have covered on the story.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you forged wiretap orders, by cutting & pasting a judge’s signature, in order to intercept communications between your love interest and one of your co-workers.
  • Lawyer:  Who said that?
  • Supreme Court: You pled guilty to federal charges of illegally intercepting their communications.
  • Lawyer: Was that wrong? Should I have not that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing law that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do this stuff all the time.
  • Supreme Court:  Disbarred.
  • Lawyer:  Well you didn’t have to say it like that.

*************************

Here are the prior entries in the Was That Wrong? Hall of Fame

Advertisements

North Carolina Extends Rule Requiring Disclosure of Exculpatory Information to ALL Lawyers

It’s been quite a week for my Dad.

Not only did he share a great story that I recounted as I presented Justice Dooley with the VBA’s Matthew Katz Award for Judicial Independence, he also cued me into a new ethics rule in North Carolina.  (My dad moved to NC several years ago).

Most of you have a general understanding of the “Brady Rule” or “Brady violations.”*   Brady v. Maryland is the case in which the United States Supreme Court held that the government violates an accused’s right to due process when it withholds exculpatory evidence that is “material either to guilt or to punishment,” and regardless of whether the prosecutor acted in good or bad faith.

As do all states, Vermont has a disciplinary rule that imposes duties upon prosecutors.  It’s Rule 3.8.  Rule 3.8(d) requires a “prosecutor in a criminal case”

  • “[to] make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by order of a tribunal.”

I’ve consistently stated that, in my opinion, Rule 3.8 is more broad than Brady.  The ABA’s Standing Committee on Ethics & Professional Responsibility is of the same opinion.  Similarly, in a disciplinary case decided in 2015, the D.C. Court of Appeals held that Rule 3.8 “requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements” of Brady and its progeny.

I bolded “prosecutor in a criminal case” for a reason.  In Vermont, and every other state, the disclosure requirement applies to the prosecutors who are prosecuting a case.  In 17 states, the rule applies to information discovered after a conviction.  But again, only to prosecutors.

Until now.

My dad mentioned it to me when we spoke two days ago.  I looked it up this morning, and he was right.  As the ABA Journal reports here, North Carolina adopted a rule that requires all lawyers, including lawyers in private practice, to reveal exculpatory evidence of which they become aware after a conviction.  More specifically, the rule, which is here, applies when

  • “a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted.”

The rule requires the lawyer to disclose the evidence or information to the appropriate prosecutorial agency, as well as to the state or federal public defender.

As more wrongful convictions come to light, I expect more states will follow North Carolina’s lead.

In any event, a good weekend for my dad.  And it might get better.  Not only is he rooting for North Carolina, he’ll win a not insubstantial amount of money in my pool if South Carolina wins it all.  He’s got things pretty well covered.

***************************

*Speaking of the Brady Rule and Brady violations, long-time readers know my feelings on Tom Brady, his role in the genesis of this rule, and the vast, repeated, and numerous ethics violations committed by Brady and the Patriots.