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

By Hayes Hunt
and Jeffrey M. Monhait

The focus on the political consequences of the Internal Revenue Service scandal has overshadowed a troubling reality that a federal agency targeted specific groups of people for discriminatory treatment. In singling out conservative groups, the IRS reminded us that the McCarthy-era Red Scare is not the distant memory many would like to believe. However, the media's uniform condemnation of this conduct demonstrates how the world has changed since then. People do not quietly allow government abuses to occur. This political backlash may be responsible in part for the U.S. Department of Justice's criminal investigation into the IRS's actions. Civil lawsuits are being filed by affected groups. The critical question is what legal remedies are available to organizations singled out by the government for discriminatory treatment.

IRS REVIEWS APPLICATIONS FOR TAX-EXEMPT STATUS

Organizations seeking exemption from federal taxes must apply to the IRS for that classification. The IRS, in particular the Office of Rulings and Agreements, of the Exempt Organizations function, evaluates these applications. The majority of applications (70 percent in 2012) are approved without additional requests for information from the applicant. If the IRS needs substantially more information, the application is assigned to the Determinations Unit. A specialist in that unit sends the applicant a request for information, and after the information is received, the specialist issues a final determination letter approving or denying the tax-exemption application.

There are different types of tax-exempt groups. Charitable organizations may not participate in election activities. Social welfare organizations, agricultural and labor organizations and business leagues may engage in some campaign activities. Charitable organizations may only participate in "limited" lobbying, but the other groups may lobby in furtherance of their tax-exempt purposes.

IRS TARGETED CONSERVATIVE GROUPS

Last year, members of Congress and the media raised concerns that the IRS was targeting conservative groups' applications for increased scrutiny. Responding to these concerns, the U.S. Department of the Treasury inspector general for tax administration initiated an audit to investigate the IRS's conduct in reviewing applications.

The report of that review, published May 14, revealed that the Determinations Unit selected for enhanced scrutiny applications submitted by any organization with the words "Tea Party," "Patriots" or "9/12" in their names. Rather than using criteria developed based upon the tax laws and regulations, the IRS agents targeted specific political viewpoints for disparate treatment.

These practices reach back to 2010. The targeted groups were subjected to lengthy delays in the processing of their applications and often had to reply to burdensome information requests (including, in some cases, submitting donor lists). Some applications were pending for more than three years. The audit reviewed 296 "potential political cases," and although 108 had been approved and none denied, 160 cases remained open, pending for between 206 and 1,138 days. 

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By Hayes Hunt

Recently, the Chief Judge for the United States District Court for the Southern District of New York refused to recuse herself from a case simply because her husband and his clients may have been the victim of the defendant’s efforts to hack a computer system.  Similarly, a Philadelphia judge acquitted a defendant/police officer and his verdict raised “concerns” that the judge was married to a police officer.

Since 2009, when the Supreme Court issued its decision in Caperton v. A.T. Massey Coal Co., Inc. 556 U.S. 868 (2009), the issue of recusal has been a hot topic in civil and criminal litigation.  In Caperton, the Supreme Court ruled that a justice on the West Virginia Supreme Court violated the Due Process Clause of the Fourteenth Amendment by not recusing himself in the case.  Recusal in the case was sought after the appellant’s chairman and principal officer gave a substantial donation to the justice’s election campaign.

28 U.S.C. § 455 governs disqualification of federal judges.  Pursuant to § 455, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  (emphasis added).  A judge’s disqualification also is required in particular circumstances.  A judge is required to recuse himself when: (1) he has personal bias or prejudice towards a party; (2) he served as a lawyer in the matter; (3) he previously practiced with a lawyer involved; (4) has a financial interest in the matter; or (4) a person with whom he or she has a relationship is involved as a lawyer or party in the proceeding.  

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By Hayes Hunt and Michael Zabel

How much evidence is enough to establish the crime-fraud exception to attorney-client privilege? With its recent opinion in In re Grand Jury, Nos. 12-1697 & 12-2878 (Dec. 11, 2012), the U.S. Court of Appeals for the Third Circuit addressed the issue in the context of subpoenas issued to the former in-house counsel of a company subject to a grand jury investigation. According to the precedential opinion, a party seeking to challenge attorney-client privilege by means of the crime-fraud exception must produce evidence demonstrating a "reasonable basis to suspect" that the elements of the crime-fraud exception have occurred. This newly announced standard clarifies Third Circuit precedent and at the same time serves to highlight the split among the federal courts of appeals over how to construe the "prima facie evidence" standard for the crime-fraud exception first articulated by the U.S. Supreme Court in Clark v. United States, 289 U.S. 1 (1933).

Every good lawyer knows, of course, that the attorney-client privilege does not offer absolute protection of his or her communications with a client. One important exclusion from the realm of attorney-client privilege is the crime-fraud exception, which, in the words of the Supreme Court, "assures that the seal of secrecy ... between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime." (See United States v. Zolin, 491 U.S. 554, 109 S. Ct. 2619, 2621, 105 L. Ed. 2d 469 (1989).) A party seeking to overcome attorney-client privilege through the crime-fraud exception must introduce prima facie evidence that (1) the client was committing or intending to commit a fraud or crime, and (2) the attorney-client communications were in furtherance of the alleged fraud or crime.

Federal circuit courts have offered differing articulations and conclusions over what constitutes prima facie evidence. Some courts have held that the evidence proffered must be sufficient to allow the court to require the privilege holder to come forward with an explanation for the evidence offered against the privilege. (See, e.g., United States v. Boender, 649 F.3d 650, 655 (7th Cir. 2011).) Other courts, such as Grand Jury, look for evidence that, if believed by a fact-finder, would establish the elements of an imminent or ongoing crime or fraud. A third group of circuit courts requires a reasonable basis in the evidence to believe that the attorney's services were used by the client to foster a crime or fraud. (See, e.g., In re Grand Jury Proceedings, 417 F.3d 18, 23 (1st Cir. 2005).)

In adopting the "reasonable basis" standard, the Third Circuit acknowledged that its own past pronouncements of what constitutes prima facie evidence under the crime-fraud exception had been "not particularly helpful." In Grand Jury, however, the court took care to define the contours of the "reasonable basis" standard. "It is intended to be reasonably demanding, neither speculation nor evidence that shows only a distant likelihood is enough," the court wrote. "At the same time, the party opposing the privilege is not required to introduce evidence sufficient to support a verdict of crime or fraud or even to show that it is more likely than not that the crime or fraud occurred."

The factual circumstances of Grand Jury present additional items of interest for in-house counsel. In the case, ABC Corp. (a pseudonym used by the court) and two of its principals were subjects of an ongoing grand jury investigation into an alleged criminal tax scheme. As part of its investigation, the federal government served subpoenas on three former in-house attorneys of ABC Corp. Both ABC Corp. and its former employees asserted attorney-client and work-product privileges, and the government invoked the crime-fraud exception in response. The district court then ordered the former in-house counsel to comply with the subpoenas.

Although the order was not directed at ABC Corp., the company sought immediate appeal under the Perlman doctrine, a rule established in Perlman v. United States, 247 U.S. 7 (1918), which allows a privilege holder to immediately appeal an adverse disclosure order without being held in contempt first by the court when the privileged information is in the possession of a disinterested third party, who will likely disclose the information rather than be held in contempt of court. The Third Circuit found that the former in-house attorneys were indeed disinterested third parties who would likely be unwilling to be held in contempt to protect ABC Corp.'s privilege. Applying the Perlman rule, the court therefore found jurisdiction to hear ABC Corp.'s appeal. 

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In Brief: Jose Garces, Iron Chef, Author and Restauranteur. 10 Q Interview 

You grew up in Chicago, what was on the table at a Garces’ family dinner? 

“My family relied on a lot of Latin staples: arroz con pollo, arepas, empanadas, ropa vieja and fritada.  My mother is an accomplished cook, and her meals were always hearty and very complete, with a protein, a starch and vegetables that ranged from things I loved (sweet roasted peppers) to things that frightened me (the vivid green of an avocado is not the most comforting thing to a kid…!)”

You beat Bobby Flay in melons to become an Iron Chef, did that victory change anything for you?

“I took on Bobby Flay as a challenger, and that experience led to me being cast on The Next Iron Chef, but it was several more battles before I was actually named the winner and became an Iron Chef myself.  I would say that Battle: Melon was a defining moment for me because it was my first time in Kitchen Stadium, and I think I showed the judges – and Iron Chef Flay – that I was ready and able to compete on that level.”

Did the Food Network lawyers tell you what it meant to be named an Iron Chef?  If so, what does it mean?

“Ha, ha. The first question people want to know is how it works behind the scenes at a taping of Iron Chef America.  If I reveal anything, my Food Network contract states that I will have to pay $1 million dollars to the Food Network.  That’s about all their lawyers ever needed to tell me!”

Tell us a little bit about Luna Farm.

“Luna Farm is a 40-acre retreat in Bucks County, PA for my family and me.  It’s reclaimed farmland, and my farm manager, Alex McCracken, and I have worked together to develop it into a working farm, reseeding fields, sowing indigenous edibles, even building a ‘foraging trail’ that I can wander for inspiration.  It’s also a place of leisure and fun for my family and I, especially the kids, who love the freedom to explore and ‘run wild’ throughout the property.” (Click here for photos of Luna Farm)

Does Luna Farm raise heritage animal breeds and crops?

“At the moment, Luna Farm is home to a few chickens, but is primarily agricultural, focusing on plants, vegetables, fruits, nuts and mushrooms.  We also raise honeybees, both for their assistance in pollination and as a means of perpetuating an endangered local species.”

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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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By Hayes Hunt and Jonathan Cavalier

So how can employers implement beneficial, effective criminal background screening in their hiring processes while ensuring that they remain in compliance with the law? A few simple steps will go a long way.

1. Draft a written background check policy that complies with the law.

Any employer choosing to use criminal background checks as part of a hiring process should have a policy. The policy should be written in clear, plain language and made available to applicants. It should state that the employer will use the background check to search for criminal history that has a direct relationship to the job at issue, and that only those criminal convictions will be considered. The policy should also expressly state that the employer is an equal opportunity employer and that it will not discriminate on the basis of any protected characteristic in the use of background checks or in hiring decisions. Finally, the employer may consider providing candidates not hired because of the existence of criminal convictions the opportunity to discuss the conviction with the employer.

2. Follow the policy in performing background checks and making hiring decisions.

If an employer has a background check policy, it must be followed. All applicants for a given job should be screened. Screening must not be used selectively or on an individual basis. Doing so is a recipe for a discrimination lawsuit. The employer must also make sure that anyone involved in hiring or background screening is trained on the employer's policy and on how to implement and follow it. Interviewers should be prepared to field questions from applicants about the screening policy and what it means if an applicant has a criminal conviction. Finally, the employer must abide by the policy and only consider convictions that have a direct impact on the applicant's fitness for the particular job at issue.

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By Hayes Hunt and Jillian R. Thornton

With regard to privilege review, lawyers utilizing predictive coding of ESI need to be especially vigilant not to inadvertently produce privileged documents. Although predictive coding can be used to assess privilege as well as relevance, lawyers need to evaluate the benefit compared to the risk of disclosure. Under the federal rules governing clawback, a "disclosure of a communication or information covered by the attorney-client privilege or work production protection ... does not operate as a waiver in a federal or state proceeding if (1) the disclosure is inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure," as well as reasonable steps to correct the error. Thus, whatever method of ESI review lawyers use, it must rely on reasonable steps to prevent disclosure. This is a subjective standard, and lawyers using predictive coding would be wise to carefully document the process of how they code for privilege. In at least one federal case, the court has held that a party waived its right to attorney-client privilege by mistakenly producing privilege documents after employing a faulty keyword filter. See Victor Stanley v. Creative Pipe, 250 F.R.D. 251 (D. Md. 2008). Part of the court's decision was based on the defendant's "regrettably vague" explanation of how the keywords were developed, how the search was conducted and what quality controls were employed. Thus, the need for precision in designing the search program and extensive quality control is obvious.

Given the ever-expanding universe of ESI, most lawyers would be wise to consider using computer-assisted review and especially predictive coding. After all, the research has shown that predictive coding is more precise, makes fewer errors and identifies more relevant documents than human reviewers. This should not come as a surprise when one considers the differences in opinion among lawyers about what information is "relevant." When you add millions of pages of documents, fatigue plays a role for human reviewers. Based on these factors in addition to the dramatic saving of time and money, it is clear that predictive coding and similar methods are going to revolutionize how we conduct e-discovery.

Published in The Legal Intelligencer on June 27, 2012

By Hayes Hunt and Jillian R. Thornton

A decade ago, document review meant a small militia of lawyers sitting in a windowless warehouse surrounded by bankers' boxes full of paper documents. Now, thanks to extreme information inflation, the bulk of document review takes place electronically. In order to keep up with the enormous volume of electronically stored information, lawyers have employed a method featuring a combination of keyword searches and manual review. Most importantly, e-discovery can be responsible for 70 to 90 percent of the client's cost of litigation. However, recently, the universe of ESI has expanded in exponential fashion. Exabytes have devoured the smaller gigabytes in the ESI pond. What's next? Predictive coding.

Predictive coding is being used to run algorithms that allow for computer characterization of a massive set of electronic data for a fraction of the cost of more traditional methods (i.e., a cadre of lawyers). Case law is now catching up to the technology and various judges are giving the green light for lawyers to employ predictive coding in e-discovery without running afoul of the rules. The proper use of predictive coding, especially in large-data-volume cases, provides huge benefits for lawyers and clients: Predictive coding of ESI takes much less time, saves a lot of money and is often as accurate or more accurate than manual review. Of course, predictive coding also can be problematic if, for example, privileged documents are disclosed.

A recent study by Rand Corp., which includes 57 case studies from eight large corporations, shows that the cost of e-discovery can be grouped into three main categories: collection, processing and review. Amazingly, the review phase accounted for 73 percent of the costs incurred during e-discovery. Predictive coding works to drastically reduce the number of documents that are manually reviewed by lawyers. Here's how it works: The first step in the process is that lawyers review a small sample of documents and code those documents for relevance or privilege or subject matter. The software then studies the sample set and applies the coding principles that it has learned to a larger set of documents. Then, the lawyers review the computer-coded documents to further teach the program how to code. This program continues until the software identifies only relevant documents. After coding is finished, the software can be used to select a small, random population of documents for lawyers to perform quality-control checks. If errors are found, the lawyers code more sample documents until accuracy of the coding reaches an acceptable level. Then the review is complete. The software can reduce the documents that need to be manually reviewed from a set of 2 million, for example, to only 3,000 to 5,000 documents. Assume it takes a lawyer 60 seconds to review a one-page document and you can easily do the cost-effective math of predictive coding.

Published in The Legal Intelligencer on June 27, 2012

by: Hayes Hunt and Jonathan R. Cavalier

Companies now frequently use social media to vet applicants, with some even going so far as to force applicants to permit company employees to access their various social media sites.

With Facebook expected to hit the 1 billion user mark in August and more than half of Americans using at least one social media platform, the importance of social media in business and everyday life will only increase. Lawyers have no choice but to become familiar with the various social media platforms, the issues these platforms create for their companies, and the pitfalls and advantages they present in management and litigation.

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by:  Hayes Hunt and Jonathan Cavalier

Over the past decade, many European countries have passed laws mandating that individuals and employers report criminal conduct.  In the United States, however, individuals are typically not required to report criminal conduct that they have observed.  Likewise, employers have no general duty to report criminal conduct by their employees. 

However, not all situations are created equally, not all crimes are treated the same, and exceptions exist that may require employers to report the criminal actions of their employees.  Consider the following scenario:

 SCENARIO: A Fortune 500 company is committed to developing a family-friendly workplace.  The company has developed industry-leading flex initiatives, benefits for working mothers, and extended pregnancy and child-care leave programs.  The company has won numerous awards and is recognized as one of the best places to work for workers with children.  One of the company’s newest initiatives is an on-site, company-owned daycare center for children of employees.  One daycare staffer notices that a 5-year-old child frequently arrives at the center with suspicious bruising on his arms and legs.  What obligations does the employer have in such a situation?

All 50 states have passed laws regarding the reporting of suspected child abuse.  While some states require anyone who reasonably suspects child abuse to report it most states define certain specific groups of professionals that must report such abuse.  These groups typically include types of jobs that require regular interaction with children, like teachers, doctors, social workers and law enforcement officers.  These laws generally require the reporter to call a designated reporting hotline and provide the suspected abuser’s name and other identifying information.  Some states allow the reporter to remain anonymous.  In most states, a good faith report of suspected child abuse provides immunity for the reporter. 

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By Hayes Hunt and Jonathan Cavalier

Published in The Legal Intelligencer on March 21, 2012

“HALLOWED BY HISTORY, BUT NOT BY REASON” – Second Circuit Stays Judge Jed Rakoff’s Challenges to the S.E.C.’s Policy of Settling Without Admissions of Wrongdoing

On March 15, 2012, a panel of the Second Circuit Court of Appeals granted a stay of the district court litigation brought by the Securities Exchange Commission against Citigroup Global Markets, Inc.  The district court had rejected a settlement and consent judgment agreed upon by the parties in a decision which threatens to disrupt the S.E.C.’s longstanding policy of settling cases without demanding an admission of wrongdoing.   

The decision stems from litigation filed by the S.E.C. against Citigroup alleging the company knew in early 2007 that the bottom was falling out of the market for mortgage-backed securities (in which it was heavily invested) and housed those assets within a new billion-dollar fund, which it positioned as an attractive investment option, rigorously vetted and selected by an independent investment advisor.  By doing so, Citigroup was able to offload much of its toxic mortgage-backed securities at a premium.  By the S.E.C.’s measure, Citigroup netted $160 million in profit while the investors in the fund lost $700 million.

In October 2011, the S.E.C. sued Citigroup for negligence in federal court in the Southern District of New York.  At the same time, the S.E.C. filed suit against an individual Citigroup employee, alleging that Citigroup knew that it would be difficult, if not impossible, to offload the mortgage-backed securities as part of a bundled fund if it disclosed the negative projections for those securities.  While the case against the individual included specific allegations that Citigroup acted with fraudulent intent, the S.E.C. omitted those allegations from its complaint against Citigroup.

At the same time that the S.E.C. filed suit against Citigroup, it submitted to the court a “Consent Judgment,” which was, in effect, a settlement of the S.E.C.’s negligence charges against the company.  Under the terms of the proposed settlement, Citigroup consented to an injunction prohibiting it from future violations of Sections 17(a)(2) and (3)of the Securities Act and was required to implement internal measures to prevent the kind of negligence alleged in the complaint from happening again.  Citigroup also agreed to turn over its $160 million in profit to the S.E.C. (plus $30 million in interest) and to pay a civil fine of $95 million.

In a practice long adhered to by many federal agencies,  the settlement included language that Citigroup was agreeing to the consent judgment “without admitting or denying the allegations of the complaint.”  While the S.E.C. does not permit companies to settle while denying all wrongdoing, it has typically allowed companies to settle without admitting violations. 

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By:  Hayes Hunt and Brian Kint

Originally published in The Legal Intelligencer

Last month, Congress quickly shelved the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) after incurring vocal public outrage led by web giants such as Google, and Wikipedia. SOPA and PIPA both sought to require the blacklisting of websites that facilitate online piracy. For example, search engines would have to exclude offending sites from search results and third-party payment processing companies like PayPal could not do business with them.

As originally drafted, the laws would have required internet service providers to block offending websites -- an internet "death sentence." The controversy over SOPA and PIPA puts into focus the tension between intellectual property rights and First Amendment free speech realities that many general counsel should bear in mind as their companies navigate the high seas of the Internet Age.

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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.

Originally published in The Champion, November, 2011

Basics of a Client Interview

A lawyer can meet a client in many ways, including a referral by court appointment or in the waiting room of the lawyer's office. For purposes of this article, let's assume this is the lawyer's first discussion with a potential client who is unfamiliar with the criminal jus­tice system. This is a 360° interview — the lawyer and the client are evaluating each another. The client is deciding not only whether to retain the lawyer, but more importantly, whether he trusts the lawyer. Ultimately, will the client accept the lawyer's advice?

The lawyer must not forget obvious etiquette. Desiring to make a good impression, the lawyer should dress the part. The lawyer should dress as if he is the one being interviewed, not the one asking the questions. He should wear clothes that he would put on if he were interviewing for a job.

Information Available Before the Client Interview

It is not unusual for the attorney to have very limited information prior to the interview. The attorney may have only an indictment, a criminal com­plaint, or bail paperwork. If lucky, she might have an affidavit or police report related to the charging documents. She should print out the criminal codes and statutes in advance since she will need to review the elements and definitions of each charged crime with the client. She should explain Rule 16, or the state equivalent, regarding the timing of dis­covery and the government's disclosure obligations. Counsel should let the client know the procedural reasons for the lack of documentation at this stage and when she expects to receive more information. Depending on the charges, counsel may want to provide the client with a copy of the U.S.C.C. Sentencing Table or similar state guidelines.

Confident Lawyers Don't Brag

Too many lawyers dominate the interview and, in doing so, fail to listen to the client. The lawyer's job is to listen and advise, not overwhelm the client with big words or the salesmanship of convincing the client to hire the lawyer. Counsel will get to that crucial point with the client by establishing trust, not by barking like a chained junkyard dog looking for a fight. Self-aggrandizement is not necessary. Confidence is crucial, but bragging is for those lawyers who lack it. If counsel needs to tell the client he is a great lawyer, then counsel is not a great lawyer.

Chest-pounding and aggressive posturing served Tarzan well in the jun­gle, but those same traits are not valu­able while interviewing the client. Conversely, if the attorney believes the client will hire him based on his ability to be loud and profane, the attorney should consider a different career. He is a lawyer, not a late-night comedian or talk show host.

Counsel should explain the basic principles of the attorney-client privi­lege. This is counsel's opportunity to let the client know counsel is a zealous advocate in the client's corner. The client must know that the attorney will not disclose information learned through privileged conversations. After talking about privilege, the client will likely be more candid about the matter at hand.

Defense counsel should not suggest he has a personal relationship with the judge or government lawyers. A profes­sional relationship and experience, if any, with the court or prosecutor, are all that matters and prevents any ethical concerns. If counsel does not know the judge or the prosecutor, before the inter­view he should contact somebody that might know them.

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

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.

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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