From the Sidebar - Trial, Litigation and The Practice of Law

By Hayes Hunt and Jeffrey Monhait

Last month, the U.S. Court of Appeals for the D.C. Circuit in United States v. Ring, No. 11-3100 (D.C. Cir. Jan. 25, 2013), upheld a conviction for bribery under the public sector honest-services fraud statute, expanding the definitions of "corrupt payments" and "official action," and thus making it easier for federal prosecutors to secure convictions under this statute. The court, in an opinion by Judge David Tatel, held: (1) implicit quid pro quo is sufficient for a bribery conviction, and no actual agreement by the public official is necessary; (2) there is "official action" when a lawyer in the Justice Department emails a secretary with the Immigration and Naturalization Service requesting expedited review of a visa application; and (3) the trial court did not abuse its discretion under the First Amendment or Federal Rule of Evidence 403 in allowing the jury to draw an adverse inference from a defendant's history of lawful campaign contributions.

The Facts

The defendant, Kevin Ring, worked as a lobbyist for Jack Abramoff. His role included fundraising for campaign contributions and developing and maintaining relationships with public officials to serve the lobbying firm's clients. Although campaign contributions were the primary means of accessing public officials, Ring treated these individuals to dinners, drinks, travel, concerts, sporting events and other forms of entertainment. A 2004 federal investigation of Abramoff ultimately led to the prosecution of Ring. At trial, he was convicted on three counts of honest-services fraud, one count of paying an illegal gratuity, and one count of conspiracy to pay an illegal gratuity, and sentenced to 20 months in prison, the opinion said.

Lawful Lobbying vs. Corrupt Bribery

The court noted that "lobbying has been integral to the American political system since its very inception." It is an enormously influential political machine. As of 2008, there were more than 14,000 registered Washington lobbyists, and lobbying expenditures on Congress and federal agencies exceeded $3 billion. "Lobbyists serve as a line of communication between citizens and their representatives, safeguard minority interests and help to ensure that elected officials have the information necessary to evaluate proposed legislation," the opinion said.

To achieve these ends, lobbyists develop personal relationships with officials, through campaign contributions and events including, for example, dinners, drinks, concerts and sporting events. As long as gifts do not constitute bribery, lobbyists are free to use them to "curry political favor," the opinion said. The line dividing legal lobbying from corrupt bribery is crossed when a gift is tied to a particular act. (See United States v. Sun-Diamond Growers of California, 526 U.S. 398, 405-08 (1999).) In Ring, the court commented that although the "distinction between legal lobbying and criminal conduct may be subtle ... it spells the difference between honest politics and criminal corruption."

The Supreme Court set the scene for Ring in Skilling v. United States, 130 S. Ct. 2896, 2907 (2010), in construing the public sector honest-services fraud statute to cover "only bribery and kickback schemes."

'Implicit' Quid Pro Quo Is Sufficient

Ring challenged the jury instructions underlying his bribery conviction for three flaws in stating: "(1) that an explicit quid pro quo was required; (2) that the official must agree to the exchange; and (3) that, at the very least, a corrupt payment must be offered." The court rejected all three challenges.

Ring claimed McCormick v. United States, 500 U.S. 257 (1991), required an explicit quid pro quo. There, the Supreme Court required an explicit quid pro quo to criminalize campaign contributions under the Hobbs Act. Ring urged the court to extend that holding to other things of value, but the court found that, in addition to the fact that it is unclear what an explicit quid pro quo requirement would look like in practice, campaign contributions are distinguishable from other things of value. In a world where political campaigns are privately funded, public officials must solicit contributions. Free lobster tails and Rolling Stones tickets simply do not serve this same purpose. Thus, there was far less concern about "criminalizing politically necessary activity or chilling constitutionally protected speech" and the court declined to impose an explicit quid pro quo requirement.

Ring also claimed the prosecution was required to prove that the public official accepted the offer. Based on Skilling's conclusion that honest-services fraud covers only bribery and kickbacks, the federal bribery statute, 18 U.S.C. §201(b), provides background for honest-services bribery. The court commented that the bribery statute "defines two separate crimes: the act of offering a bribe and the act of soliciting or accepting a bribe." Because bribery does not require that the official accept the bribe, neither does honest-services bribery. The key to bribery is intent — the intent to affect a quid pro quo, and the intent to influence an official act. Thus, the statute is satisfied by proof beyond a reasonable doubt of "intent to offer or solicit an exchange of official action for personal gain."

Ring's final challenge to the instructions was that they failed to require that the defendant intended to offer a quid pro quo exchange. Both sides agreed this element was necessary, and the court found that the jury was properly instructed as to this element. Instructions must require, and these did, "a specific intent to influence official acts, an intent that the official realize or know that the corrupt exchange is being proposed, and a showing that the gifts were conditioned upon the official act or agreement." The court concluded that the mens rea element, rather than the conduct itself, distinguishes legal lobbying from corrupt bribery. 

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By Hayes Hunt and Jillian Thornton

Giving your opinion on politics or complaining about the boss to your friends via Facebook is so commonplace and rampant that few people probably stop to think about the consequences of their posting. Less thought is given to the magnitude of a Facebook user “liking” something — a photo, a status update, a fan page, etc. Yet, these actions can have very significant consequences for the person behind such activity. The legal realm is still adapting to the changing landscape of social media with somewhat incongruous legal results, depending on who your employer is and, in some cases, exactly what your Facebook or other social media activity was.

For instance, Facebook use and freedom of speech are at the center of a highly publicized legal battle in Virginia. In that case, titled Bland v. Roberts, government employees of the local sheriff were fired when it was discovered that they openly supported the sheriff’s election opponent, in part because one of the employees “liked” the opponent’s Facebook page. The trial court ruled that “liking” something on Facebook is not protected free speech under the First Amendment. The case is now on appeal, and Facebook has filed an amicus brief, arguing that “liking” a political candidate is a form of verbal expression and/or symbolic expression similar to other constitutionally symbolic expressions such as wearing an armband or even burning the American flag. According to these groups, such activity should be protected as a substantive statement of political support. The fact that the decision ruling against protecting the activity as free speech has been so highly publicized illustrates the broad concern how the First Amendment will interact with our social media use.

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Originally published in The Champion, November, 2011

Do You Believe That I'm Innocent?

On occasion, some clients desper­ately insist that their lawyer must believe they are innocent. A tempered response goes something like this:

Your innocence is not the stan­dard. The burden of proof is beyond a reasonable doubt and it is the government's burden.

Any verdict in your case will be "guilty" or "not guilty." A judge or a jury cannot render a ver­dict of "innocence" or "not proven." My ethical obligation is to be a zealous advocate for you and you alone. A rare exception to my duty will arise if you decide to testify and commit perjury, which you will not. What is right and wrong is a moral question, not an ethical one. If you are inno­cent, which you are presumed to be, we will need to prove it to the government to get your case dismissed. That proof of innocence can help in my con­versations with the prosecutor and, more importantly, create reasonable doubt if we try the case. I'm not here to judge you or the conduct of which you are accused. I'm your lawyer.

The defense attorney can use the same answer when people ask, "How can you represent someone that you know is guilty?"

Am I Going to Jail?

Am I going to jail? This is the other delicate question the defense attorney will hear at the initial client interview. If the case involves a minor criminal charge and likely to result in some sort of diversion program, counsel should go ahead and answer "no" even if the guidelines suggest a 90-day sentence. In federal court this is less likely and throwing out unmiti­gated and non-negotiated guideline numbers can be as frightening as a prognosis from Dr. Nostradamus. This judgment call depends on defense counsel's evaluation of the client's anxiety and familiarity with the criminal justice system. Defense counsel should let the client know it is still far too early in the process to advise him of the likelihood of a lengthy term of incarceration. There's nothing more shocking to a client than to add up all the charges and talk about a 200-year consecutive sen­tence. An overview of concurrent and consecutive sentencing may be over­whelming and put a premature end to the interview. If the circumstances involve a clear mandatory sentence, such as a gun enhancement, then counsel should let the client know about it during the initial interview.

How Much Do You Charge?

After completing the fundamen­tals of the client interview, counsel can talk to the client about a retainer and the estimated legal fees. The lawyer should not underestimate the cost of defending the case. There is nothing more problematic to the attorney‑client relationship than the lawyer demanding more money from the client in the middle of the case because the lawyer failed to properly provide an accurate budget.

There may be pressure to sign up the client, and the lawyer wants the work. However, it is a huge profession­al mistake for the lawyer to suggest a discounted rate when the lawyer knows the case will cost more. Many times a potential client will tell the lawyer that another lawyer quoted him a much lower price for legal represen­tation. Counsel should be honest and respectfully disagree with the other lawyer's estimate. Counsel should not demean or criticize the other lawyer, even if counsel does not have a favor­able opinion of the other lawyer. Being small and petty during the interview only serves to dissuade a potential client from hiring the lawyer. The attorney should sell his understanding of the law, advocacy skills and creative problem-solving, but should refrain from saying had things about other lawyers and business competitors. The lawyer should always take the high road because his reputation with other practitioners, judges, and prosecutors is one of his most valuable assets. The lawyer's integrity will ultimately attract clients and allow the lawyer to give them the best possible defense.

Little dogs bark, big dogs don't have to.

My entire article was published in the 11/11 issue of The Champion published by the National Association of Criminal Defense Lawyers.

By Thomas G. Wilkinson, Jr. and Michael P. Zabel

Can joint representation with independent counsel remedy a conflict of interest? In a recent criminal case in the U.S. District Court for the Western District of Pennsylvania, a federal judge denied the public defender’s request to withdraw over a conflict of interest from a prior representation and instead ordered the public defender to obtain separate counsel who could independently manage any claimed conflict. When later accused of bias against the defender’s office, the judge voluntarily recused himself from 17 ongoing criminal cases.

Conflict, Withdrawal, and Independent Counsel
The dispute over the alleged conflicts arose in United States v. Vue,No. 2:09-00048 (W.D. Pa. Sept. 20, 2010), a case in which the Federal Public Defender (FPD) had been appointed to defend Youa Vue, a convicted felon who was indicted for possession of a firearm. When the FPD learned that it had formerly represented the confidential informant whose information was used to obtain the search warrant for Mr. Vue’s home, the FPD sought permission in consecutive motions to withdraw from the case, claiming that its representation of Mr. Vue would conflict with its former representation of the informant.

Judge Arthur J. Schwab denied both motions, finding that neither motion was “specific or illuminating with regard to the nature of alleged conflict, nor did it set forth any particulars about the former representation . . . and how that might conflict with the representation of Mr. Vue.” As a protective measure, the judge ordered the FPD to secure, as part of a joint representation effort, separate counsel who could represent Mr. Vue with regard to areas in which the FPD had a conflict of interest. Judge Schwab further observed that the FPD had a safe harbor in Pennsylvania Rule of Professional Conduct 1.16(c), which states that “[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

The Interests of Criminal Justice
In rejecting the FPD’s requests to withdraw or to stay the proceedings against Mr. Vue pending appeal, the judge also criticized “a certain few [assistant federal public defenders’] increasingly common practice of filing numerous, boilerplate motions for extensions of time,” which, in at least one prior case involving the FPD, had kept a criminal defendant incarcerated for a longer period than his actual sentence required. Judge Schwab noted that in the Vue case, the FPD had filed nine motions for time extensions over a period of almost a year, threatening Mr. Vue’s and the public’s right to a speedy trial, and that further delays ran a similar risk of Mr. Vue serving time beyond his sentence.

The presence of independent counsel (without withdrawal by the FPD), the judge found, therefore not only protected the FPD against breach of its professional duty but also protected the defendant’s rights and served the interests of justice by allowing sentencing to proceed more quickly.

Prophylactic Recusal
After Judge Schwab denied its requests to withdraw, the FPD filed motions in 21 other criminal cases being presided over by the judge. The FPD requested that Judge Schwab recuse himself from the cases because of alleged bias shown by the judge in the Vue case against the FPD office. In his initial response, Judge Schwab offered to recuse himself from those cases, provided that the FPD submit an affidavit from each defendant that the defendant had read and approved the FPD’s request. The U.S. Attorney’s Office requested that the judge reconsider.

In subsequently ruling on the motions for disqualification, Judge Schwab looked to 28 U.S.C. § 455, the statute governing disqualification of federal judges, and found that “no reasonable observer … would find any bias or lack of impartiality . . . toward the [FPD] or any of the dedicated and professional Assistant Public Defenders in that Office, let alone toward any of their clients.” Lack of bias notwithstanding, Judge Schwab also held that the circumstance “calls for unusual measures to prevent what has real potential to disrupt the fair and orderly administration of justice.” The judge then voluntarily recused himself from 17 of the 21 cases, and from all future criminal cases involving the FPD through the end of 2011.

In three of the four cases from which the judge did not recuse himself, he found it against public interest and the “prudent use of judicial resources” to do so. Appeals in those three cases are currently pending before the Third Circuit Court of Appeals; all three appeals concern, in part, the denial of the FPD’s motions to disqualify. In the fourth case, new counsel was appointed for the defendant and the FPD was allowed to withdraw.

Thomas G. Wilkinson, Jr. is a member of Cozen O'Connor's Commercial Litigation Practice Group and heads the firm’s alternative dispute resolution practice. He concentrates his practice in business litigation, business torts, complex insurance coverage, and professional responsibility matters.

Something has changed dramatically about the way we communicate: we don't talk to one another. We text, tweet, "like", and comment as an alternative to speaking and listening. Why speak when we can merely type? Professionally, we email rather than go through the emotional rollercoaster of having a dialogue with clients, colleagues, or adversaries. My favorite is leaving a voicemail message for someone and receiving an email reply asking "what's up?" Genius! 

Fans of email boast that it permits them to multitask. However, emailing while you are with another person, is, at best, rude and worse, demeaning since you are letting the person know that they are unworthy of your full, undivided attention. Behaving in such a manner around a client means you aren't interested in working for your client. 

Using social media and smart phones has become an obsession. Have you ever watched somebody light a cigarette and then another smoker immediately follows suit? Monkey see: monkey do. Next time you are out, watch your friend or colleague check her blackberry. You invariably will do the same thing. It ends the conversation. You stop talking. Bad habit, you should quit.

Failing to watch and listen during a conversation means you cannot communicate effectively. One study conducted at UCLA suggested that 93% of effective communication between people is dictated by nonverbal cues. What is lost is the credibility of the speaker. Particularly for litigators, we can't evaluate the sincerity of our client and belief in her case. We need non-verbal cues, such as posture and facial expression, to get a sense of whether our client will make a good witness. Similarly, if we are texting, tweeting, or sending an email, we are not talking or listening to the person in front of us. Voice and tone are tremendously important in evaluating a speaker for honesty and candor. Our loved ones and colleagues may have more tolerance for our multiple interests, however, our clients are not paying us to be distracted and inattentive.

Turn your smart phone, blackberry, i-pad off and pay attention to the person or client in front of you. Kick the habit.

By Thomas G. Wilkinson, Jr. and Lindsey E. Wilkinson

It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes.   But can the urge to dig up dirt on opposing parties cause lawyers and their staff to overstep the line into 'risky business' practices or even  potential for lawyer disciplinary consequences?  

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I need to get to Toledo.  I can fly PennAir or OhioJet, same flight times.  I am a preferred member on PennAir and receive “free” upgrades, bonus miles, and all the things which make me believe PennAir prefers me.  PennAir wants to charge me $1,000 for the privilege of flying to the home of the Mud Hens while OhioJet will get me to the Glass City for only $200.

I came across Tim Harford’s column, Dear Economist: Do Loyalty Schemes Damage the Economy?, in the Financial Times. Harford discussed frequent-flyer programs that incentivize an employee selecting their preferred airline rather than the cheaper alternative to the detriment of their employer.  I got curious.  

Do I, as a lawyer, have an ethical obligation to find the lowest airfare? 

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Good morning Mr. Employee.  Thank you for meeting with me.   Sitting next to me is Ms. Auditor and she will be taking notes of our interview.  I am the lawyer for the company you work for.  I’m here to ask you about the big problem your employer needs to figure out.  It is my understanding that you may have facts and information about the big problem.  Let’s talk.

There is a fine balance in explaining to your client’s employee that you want to have a privileged conversation with the employee, however, you are not his lawyer.  You need the employee to be candid and honest.  That honesty may incriminate the employee and benefit your client-company.  It is an awkward moment when you begin the interview by clearly informing the employee you are not acting in his interest even though you work for the same company. 

Every lawyer has some variation of warnings derived from the Supreme Court decision Upjohn v. United States, 449 U.S. 383 (1981).  The Upjohn warnings generally include the following:

• I represent the corporation.  I’m not your lawyer;
• I’m going to ask you questions regarding the big problem; our conversation is privileged.  It is the company’s choice of whether or not to waive that privilege.  If the company decides to waive the privilege, the information you provide may be disclosed to others;
• You can talk about the big problem to others.  However, you may not talk about what you and I say during this interview to other employees or third-parties with the exception of your lawyer, if you choose to hire one; and
• Are you willing to be interviewed regarding the big problem?

Once you have provided the employee with sufficient Upjohn warnings, the attorney-client privilege is maintained by the company.  The problem occurs when the company self-reports the employee’s criminal conduct and the employee obviously wants to keep his inculpatory admissions privileged.  The employee’s personal attorney sends your client-company a letter stating that the employee reasonably believed he was being represented by you at the interview.  You respond with an affidavit from the auditor and a letter explaining that you provided adequate Upjohn warnings.  Now it is up to a judge.  Could you have done something differently to alleviate your new big problem?  Yes.

At the end of the interview you can ask the employee to sign an acknowledgement that you provided Upjohn warnings.  Write each warning out on the acknowledgement.  Remind the employee that you gave the Upjohn warnings at the start of the interview and that the acknowledgement merely serves as his or her written confirmation of receipt of those warnings.  Make sure the employee initials each warning on the document. 

Timing is important.  If you give the employee an acknowledgement form at the beginning of the interview you will likely intimidate the employee.  The employee will be suspicious and, more importantly, less open and honest in providing answers.