Another Connecticut attorney has gone to jail after pleading guilty to a crime and had his license suspended for a long time. One of the purposes of criminal prosecution is general deterrence; some of us aren’t learning the lesson.
The lawyer I write of, Bradford Barneys, as reported of in the Tribune a few days ago, got 30 months for his involvement in a mortgage fraud scheme. Judge Antonio Robaina took his license away for six years. That didn’t come as a surprise to me. I recently had a lawyer-client who lost his license for seven years when Judge Robaina, unimpressed with his claims that he didn’t know his nonlawyer partner in a mortgage originating company had gone beyond “creative” and into criminal stretching of the truth, wrote a strong opinion chastising him for blaming others for his own sins.
My client and good friend, Corey Brinson, is presently in federal prison in Pennsylvania for his role in a stock “pump-and-dump” scheme. (Corey gave me permission to write about his troubles in the hope that his problems might help others avoid similar fates.) His tale is similar to other lawyers I have prosecuted or represented, all dealing with the collateral consequences of a criminal conviction. There have been many in the past few years.
The general pattern in these cases is that a client comes to the lawyer needing help with a business matter. That’s what we do, right? We have tools, access to systems, credibility and cachet that business folks do not. For a fee, we’re glad to help, regardless of the fact that we may have no substantive knowledge of the business enterprise.
Often, it turns out that the matter requires little hard work and the fees are pretty good. The relationship gels so nicely that the client will offer the lawyer a “taste” of the action, letting him or her on the inside track and giving up a share of the profits. Many lawyers find this hard to walk away from. Practicing law is hard and often not that profitable. Business seems to be an easier way to make good money with little risk other than time and modest effort. The die is cast.
From what I read about Barneys, it was alleged that he began helping a client with a foreclosure rescue business. At some point, he supposedly realized the client was not doing what he promised and was instead lining his own pockets. Yet he persisted in helping him.
The slide into becoming a criminal co-conspirator is a gentle one. It’s kind of like when you put a lobster in warm water and gently turn up the heat. Often, bad deals are mixed in with legitimate ones. By the time the lawyers realize something is amiss, it’s too late. Some exit quietly but do nothing to derail the enterprise. Many persist until a guy shows up with a search warrant. The result is the same.
With the harsh light of retrospective analysis, prosecutors charge willful blindness or conscious avoidance, pointing out that lawyers, if anyone, should have been able to see that the enterprise was criminal or, even if initially legitimate, had been subverted for bad ends. In the few cases that have been tried, juries have not hesitated to find against the lawyers. Faced with the “trial tax,” most lawyers take plea deals. That’s when I have met most of them.
In retrospect, there’s a point where hard questions should have been asked but weren’t. Even if there were questions, many of us went into law because we had no head for business. We buy the clients’ stories or get lost in the minutiae of the explanation. Couple this with ethical duties to keep clients’ matters secret and there’s certain trouble ahead.
I have had occasion to speak with a few lawyers who I could see were heading into deep water, following the lure of the “surefire business deal.” Some of the schemes seemed so transparently criminal that it was beyond me that the lawyer had gotten so far into it. When queried, they usually repeated the song and dance their clients had been singing to them. I don’t know if some of them were duped by their con-artist clients or just very dumb.
The Rules of Professional Conduct allow us broad leeway to walk away from clients if they’re involved in fraud or criminal activity. The problem with just walking away from a criminal conspiracy is that often you’re required to do more—to take affirmative action to shut the thing down. Blowing the whistle on a client is a hard thing to do. But it may be what you need to do if you’ve become a co-conspirator.
Mark Dubois, a former Connecticut chief disciplinary counsel, is with Geraghty & Bonnano in New London.