The set-up: Potential client calls you on the phone. He says he is representing a government minister from a mineral-rich West African nation — he won’t say which one. But his (unnamed) principal needs legal help in order to move millions of dollars into the U.S. — consisting of what the representative candidly describes as “tainted money” and “gray money;” actually, bribes the government minister has received in exchange for grants of mineral rights.
Do you take the bait and schedule a meeting to discuss representing the client? Do you accept an engagement?
Secret tapes
That, in fact, was the set-up for the 60 Minutes segment on money-laundering and the U.S. legal system on January 31; you can watch it here.
Of course, the “representative” of the unnamed West Africa government official was in fact an imposter who was working with Global Witness, a British-based public advocacy group. But shockingly, 13 law firms scheduled meetings with the supposed client to discuss representing his anonymous principal. That was out of 50 firms the imposter called.
The resulting interviews with the “client’s” representative were secretly videotaped, and some might appear to suggest that the lawyers involved were willing to advise the “client” in carrying out an illegal money-laundering scheme.
Glass half-full?
So far, so bad. One lawyer, though, rejected the bait, saying that “it ain’t for me,” and raising questions about the Foreign Corrupt Practices Act. That’s nice, but what about the other 12 firms?
My friend Brian Faughnan, over at Faughnan on Ethics, has some interesting comments. Among other things, he suggests that the proverbial glass might actually half-full. Yes, 12 firms were potentially on thin ice, ethically speaking, if the “client” had been real, and if the secret tapes accurately reflected their conduct. But 37 firms wouldn’t even meet with the guy. That’s a 75 percent score for the smart folks. The American Bar Association’s response to the 60 Minutes segment is here.
I don’t think that 75 percent is anything to brag about, necessarily. Lawyers need to be far more responsive to the big red flags that were abundant in the fake scenario portrayed in the videos: unnamed African countries, anonymous principals, and above all, money that was candidly described as “tainted.”
Ethical duties at risk
Everyone should be aware of the knife edge that your jurisdiction’s version of Model Rule 1.2(d) puts you on. You can never “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” You can and should “discuss the legal consequences of any proposed course of conduct with a client.”
And, as Comment [9] explains, you are not precluded “from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. … There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.”
Where the line between these two polarities is located is the ethical challenge that we all face. But a significant minority of the lawyers in the 60 Minutes segment flunked the test. That’s a disappointment, and adds to a media image of the legal profession that is sadly too common.