"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, February 3, 2016

Will Preet Bharara prosecute prominent Manhattan attorneys for participation in an attempt to engage in international money laundering and wire fraud?

 In August of 2015, 16 men were arrested as a result of a police sting to reveal sexual predators against minors.

"During "Back to School," investigators posed as minors, both boys and girls while online and identified suspects who were trying to meet children for sex. When the suspects arrived for a sexual rendezvous with the minor child at an apartment in Pearland, they were met instead by officers of the Pearland Police Department, who arrested them."

Let's look at the important features of the sting.

16 men who were arrested showed up for a promised sex with a minor while believing they were talking to minors.

They were not.

They were talking to adult police officers.

Yet, mistake of fact like that is no defense in criminal law.

Actually, reportedly, 1200 men were arrested in Florida recently during such stings.   

It is also reported that allegedly "many of the men whose mugshots sheriffs have been paraded in made-for-TV press conferences were not seeking to meet children online, according to a yearlong WTSP-TV investigation. Instead, they were looking for other adults when detectives started to persuade them to break the law."

Of course, to me this is a very fickle justification.   You know it is a crime to have sex with a child, so no amount of "persuasion", especially coming from a child (the men did not know they were talking to police officers), should sway an adult man into actually showing up with the intent to have sex with a minor.

The same happens in California.

The same happens in all other jurisdictions of the United States.

Because - once again - if you are doing something with the belief that what you are doing is illegal, and are still doing it (like arranging for a meeting for sex with a minor, even not knowing that it is not a minor you are talking to) - that is still an attempt to commit a crime.

And, the same principle that mistake of fact is usually no defense applies to all other crimes.

Mistake of fact is a defense only in those extremely rare occasions where "when a criminal defendant misunderstood some fact that negates an element of the crime. For instance, if an individual is charged with larceny but believed that the property he took was rightfully his, this misunderstanding negates any intent to deprive another of the property".

When adult men are invited by a minor (as they believe) to have sex with that minor, and go to that meeting, that is not the kind of mistake of fact that will get them out of conviction for attempted crime, with the resulting prison term, registration as a sex offender, and their whole life ruined - and for a reason, BECAUSE THEY BROKE THE LAW, so they have only themselves to blame.

Let's now look at another sting, and attempts by a variety individuals and entities, from the "stinging" advocacy group itself, to a "former Treasury Department" official to two - gasp! - law ethics professors, one from Columbia Law School, one from Rutgers Law School - to explain away that crimes were not committed by attorneys who agreed to consider a proposal to bring dirty money from a corrupt African public official into the U.S. to clandestinely buy real estate, a yacht and a jet - for a fee.

The Global Witness Group:

"None of the lawyers broke the law".

 New York Times:

"... none of the lawyers are accused of criminal wrongdoing"

Recently, I wrote in a blog about the sting operation of a UK-based advocacy organization, Global Witness Group, where the group's investigator with a German accent, without disclosing that it was a sting, obtained attorney-prospective client interviews with 16 Manhattan (New York City) lawyers and asked them, in videotaped interviews, whether they would be able to provide services to an African public official who would like to buy expensive property in the U.S. (a yacht, a jet, expensive real estate) in such a way that neither his identity nor the source of the money would be traceable.

Reportedly, only 1 out of 16 interviewed attorneys, Jeffrey Hermann, refused to consider the deal.

"Herrmann raised questions about the Foreign Corrupt Practices Act, which makes it illegal to bribe foreign officials. Even if no Americans paid bribes, Herrmann said, he wasn’t interested in the new client. “This ain’t for me,” he said. “My standards are higher.”

Mr. Hermann also refused to refer the "prospective client" to anybody else, because Mr. Hermann simply wouldn't do it, his "standards are higher than that" and "people will be insulted".

See also the report on this incident of the American Bar Association - all the more important that one of attorneys who actually agreed to consider such a client, was the then-president of the American Bar Association. 

A former Treasury Department official interviewed by "60 minutes" - that also aired a report on this incident - indicated that "
“There’s a clear pitch consistently presented in every one of these tapes of what amounts to an incredible number of red flags that scream corruption". 

And you know what is really great?

Reportedly, "lawyers who were named in the report, or their representatives, told The Times that they took issue with Global Witness’s undercover methods".

For those lawyers, it is the exposure that is to blame, not their dishonesty and readiness to provide legal advice in facilitation of a fraudulent scheme, and I do not mean here Mr. Hermann.

By the way, in providing such legal advice - and a lot of it was provided at those preliminary interviews already - attorneys who gave it completely disregarded the possibility that they are violating the prohibition of providing help with legal advice to a terrorist organization.

After all, it could have been such a terrorist organization that posed as an "African minister's representative" trying to get blood-tainted money into the country.

And lawyers readily started to share their knowledge about which European country is stricter on banking regulations than the other, what size of banking institution and money management firm is better to choose to "scrub" the money before bringing it into the country, some lawyers even offered their IOLA trust accounts to conceal identity of the clients and source of money.

I can tell you one thing.

Mr. Hermann spotted the problems right away and said no.

Other attorneys were not green law school graduates.

Their statements on video indicated knowledge and readiness to share that knowledge for a hefty fee (50 to 100 thousand dollars for a setup and 25 thousand dollars for yearly maintenance of the account for Marc Koplick, for example) as to:

  • which country to go to to start the process of money laundering (Koplick used the euphemism of "scrubbing"),
  • which banking institutions will not be willing to risk their reputation with "honest graft" (Koplick's phrase, meaning "corrupt") money for "less than a billion dollars", and which would consider the puny 16 million dollars offered by the prospective client, a corrupt African official.

If Klonick did not know what was asked of him was illegal, why would he go into his lengthy explanation that lawyers will never go to jail, because they write laws for themselves, enforce them for themselves, have lunch with judges who are their law school classmates and thus, get to be a "privileged class" who "run the country" and, once again, do not go to jail - when other people do, if they broke the law.

Hermann knew right away, but Klonick did not?

It is not important that money did not pass hands, and it is not important that retainer agreements were not signed.

What is important that some legal advice as to how to "scrub" the money and how they usually do that (the kind of knowledge attorneys imparted in interviews was very clearly part of their prior experience, it is not commonly available) WAS ALREADY GIVEN.

That is enough to prosecute these attorney for an ATTEMPT of engaging in international money laundering scheme, an ATTEMPT in wire fraud.

When the president of the American Bar Association tells a person who approaches him with all the red flags on screaming of international corruption that "Mr. Silkenat told the investigator that "there may be 'other banking systems that are less rigorous on this than the U.S.' and that 'we could provide you with the list of countries where the banking systems require less detail on ownership or source of funds,'” Mr. Silkenat already told a potential international terrorist that THERE ARE different standards in different banking institutions and that ALREADY could have provided material help to terrorists.

Two LAW ETHICS professors (William Simon of Columbia Law School and John Leubsdorf of Rutgers School of Law) found that attorneys Koplik, Jankoff and Ross violated their ethical obligations in the following way:

 What the two esteemed professors acknowledged here is that the three lawyers "offered advice to [the Global Witness Group's] investigator by volunteering various suggestions for designing such transactions and asserted their ability to design and implement them without making serious efforts to determine whether it will be lawful to do so for the putative client".

That's it.

The advice was offered with a belief that they are talking to a prospective client ready to pay these attorneys big money.

In my opinion, unless Marc Koplick is correct in saying that "attorneys never go to jail" because they are "members of privileged class", "run the country", write its laws, selectively enforce them and have judges with whom they are law school classmates, bar co-members and with whom they have lunches, "bend over backwards to be courteous" for them.

Once again - a sting against a sexual predator who believes he is going to a meeting with a minor to have sex with that minor, while the person who invited him was a 50-year-old male police officer produces a valid criminal charge and a conviction on such grounds is valid, because such a mistake of fact is not a defense.

It works the same way where the crime is an attempt at international money laundering and wire fraud.  The fact that attorneys did not know that who they were talking to was not a representative of an African minister, but an undercover investigator of international corruption, makes no difference.

Same as it is still a crime of attempted sex with a minor for those sexual predators to show up at the meeting set up by the police while believing they set up a meeting with a minor, participation in an attempt for international money laundering is still a crime, where attorneys engaged in (as professors Simon and Leubsdorf admitted in their opinion) giving ADVICE as to various schemes of money laundering while their only mistake was not that they may be engaged in an illegal activity, but the identity of their "putative client".

So - I wonder if our favorite champion of justice and fighter against corruption Preet Bharara will pick up these attorneys and turn them into a criminal grand jury.  All of the attorneys who made suggestions as to how to form shell companies and gave hints that some countries and some banks are "less restrictive than others", to a corrupt international public official, should be criminally prosecuted, same as those men who showed up for sex with a minor.

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