Recently in Scandals Category
The mills of California lawyer discipline grind exceeding slow: five years after the scandal over Brar's mass-mailing of extortionate demands to small businesses under the state's unfair business practices act, and after Brar's jailing for federal tax evasion as well as well as contempt of court for pursuing legal harassment, a state bar judge has recommended that he lose his license to practice. (In the matter of Harpreet Singh Brar, PDF, via CJAC). Earlier here, here, here, here, etc.
Not so fast, he says -- the Mississippi Bar didn't file a "certified copy" of his guilty plea. (Patsy R. Brumfield, "Dickie Scruggs files to dismiss attempt to have him disbarred", Northeast Mississippi Daily Journal, Apr. 1).
David Rossmiller has ten unanswered questions about loose ends in the Scruggs scandal (Mar. 24) which elicit responses in turn (and more unanswered questions) from NMC and Lotus at Folo (plus an NMC update). These latter bloggers, by the way, have shed their anonymity and stand revealed as Oxford, Miss. lawyer Tom Freeland (NMC) and retired lawyer Jan Goodrich, now of New Smyrna Beach, Fla. (Lotus), now also joined by Jane Tucker.
Is it okay for the University of Mississippi (Ole Miss) to take Scruggs's money? "It depends on what the felony is..." Chancellor Robert Khayat is quoted as saying (Folo/NMC, Apr. 1; more). Gulfport M.D. Bill Hemeter, in a letter to the editor printed in the Biloxi Sun-Herald (Mar. 19), is claiming prescience: "I sent Chancellor Khayat the book 'The Rule of Lawyers' by Walter Olson several years ago, with a warning not to take money from plaintiff attorneys." Earlier, when Scruggs pled guilty, another university official was heard from:
"My initial reaction is one of sadness," said Samuel Davis, dean of the University of Mississippi Law School, Scruggs' alma mater. "I've known and been friends with Dick and Diane Scruggs almost 50 years now going back to our days in Pascagoula, and I feel a great sense of compassion for him and his family. And that's just a very personal reaction. I haven't really thought about the implications for the legal community or the legal profession."
Davis, who also directs the Ole Miss Law Center, said not everybody who pleads guilty is guilty and that Scruggs might have had other reasons for the move. If that were the case, Davis said, the reasons likely were good ones.
And from Sid Salter of the Jackson Clarion-Ledger (Mar. 19): "In spite of their insistence that there were no ethical lapses in their behavior on the tobacco suit, [former attorney general Michael] Moore and Scruggs still owe the taxpayers of Mississippi an accounting of the lawyers' fees and expenses that accrued from that litigation."
I'm quoted on the Melvyn Weiss guilty plea, and on the way certain crooks have successfully been passing themselves off as white knights in press coverage of shareholder and consumer litigation. (Jonathan D. Glater, "High-Profile Trial Lawyer Agrees to Guilty Plea", New York Times, Mar. 21). For more on Weiss's plea, see yesterday's post.
More Weiss reactions include a NY Sun editorial:
Mr. Weiss and his partners made their careers, and their fortunes, casting those they were suing -- insurance and tobacco executives, Swiss bankers -- as crooks. Some of them may have been, though many were not. Now these lawyers are admitting to the court that they are crooks, too. ... Congress has already acted to reform the class-action system from the "first-to-file" system that engendered the Milberg Weiss abuses. But until Congress and the state legislatures act further to reform the civil litigation system, the costs of Weiss's career will be borne by all of us.
- Well, at least he cleaned up Wall Street; so runs one common valedictory to Spitzer, but Prof. Bainbridge begs to differ (Mar. 13)(and see links at my Point of Law roundup last week).
- "Should Spitzer really go to jail because of the way he took his own cash out of the bank?" asks Larry Ribstein (Mar. 11). And indeed bank "Know Your Customer" regulations, of which I've been critical for a good long time, might now come in for much needed scrutiny (Jack Balkin, Balkinization, Mar. 13; see also). One public figure who likewise faced the prospect of a "money laundering" indictment when personal weaknesses led him into surreptitious payments was ideological antipode Rush Limbaugh, Megan McArdle reminds us (Nov. 24, 2003).
- Last week's New York Times article laying out Spitzer's big crusade against the sex trade, and his successful push for a law lengthening sentences for "johns", was powerful enough on its own terms. But isn't it curious that the Times exclusively and at length quoted the feminist and legal-services groups who worked as Spitzer's allies in that crusade, while not quoting a single source critical of the harsher penalties? Stephen Chapman has one corrective view [syndicated/Chicago Tribune, Mar. 13].
- Toronto law blogger Garry Wise says that unless Spitzer was diverting public moneys his fall constitutes "just another political lynching by the Monica brigade", a sentiment I find sufficiently wrong-headed that I'm provoked to jump in with a comment [Wise Law Blog]. P.S. Wise says he was referring not to the governor's downfall, but to his potential overcharging.
- How'd the press find out that "Client #9" was the governor of New York? All signs point to a prosecution leak -- the sort of underhanded tactic that should be left to the likes of, well, the departing governor himself [Frum, National Post]. Plus: Don't assume that all the ill-advised leaks came from the prosecution side [Beldar]
- Should "Kristen" sue AP and other press outlets for swiping her MySpace pics, she might prove formidable in court: "It's not often you get a case where there's someone in the room with a higher hourly rate than the lawyers." [Steyn @ NRO "Corner"].
- One reader said he had to check Overlawyered to see whether a certain story was true or a parody, so please rest assured: it's only a parody (Jason Roth, "Spitzer Sues Prostitute Over Sex Addiction", Save the Humans, Mar. 11).
The WSJ and Mississippi's WLOX have the news up on Dickie Scruggs' plea of guilty to conspiracy in the attempted bribe of Judge Henry Lackey. Earlier today, the Journal had an illuminating page-one feature on Dickie Scruggs's history of fee disputes with other lawyers. YallPolitics' server
seems to be down at the moment from traffic, but is back up now; in an email alert, YP's Alan Lange said the surprise plea came three days before the deadline for Scruggs to plead before his approaching trial. Our past coverage is here, or check our Scandals page.
Update 12:18 EST: AP coverage is here (via Rossmiller). Sid Backstrom also pleaded and, per Folo rapid updates, is cooperating with prosecutors. No deal for Zach Scruggs yet. Also per Folo, Scruggs pleaded to conspiracy in the Lackey bribe attempt but did not resolve possible charges in the DeLaughter case, per the government side.
1:16: Per Patsy Brumfield at the NEMDJ:
...The government recommended a sentence of five years in prison for Scruggs and 2 1/2 years for Backstrom. They also will pay a maximum fine of $250,000 each and a court fee. ...
Before Biggers accepted their pleas, Scruggs and Backstrom admitted in open court that they had done what the government said they had done in Count One – they had conspired to bribe Circuit Judge Henry Lackey of Calhoun City for a favorable order in a Katrina-related legal fees case....
Dickie Scruggs, arguably the most famous plaintiffs' attorney in the U.S., looked pale and thin but carried himself with a bit more control than his younger colleague at The Scruggs Law Firm, headquartered on the storied Square in Oxford.
The 61-year-old Ole Miss Law School grad and legal giant-killer, as well as Backstrom, likely will voluntarily surrender their law licenses, as has co-defendant Timothy Balducci of New Albany, who pleaded guilty in December although he was wired and cooperating with the government at least a month earlier.
"Do you fully understand what is happening here today," Biggers asked him.
"Yes, I do," Scruggs responded.
Questioned about whether he had discussed his decision to plead guilty with his attorney, Scruggs responded, "With my attorney, my wife and my family."
...* Richard Scruggs is pleading to conspiracy to bribe a state court judge, count 1 of the indictment, with other counts to be dismissed. This was an open plea, that is, no recommended sentence.
* The government expects that he will get the full five year sentence on that count. ...
* There was no mention of cooperation by Scruggs. ...
* There was an interesting and unusual disagreement with the government’s statement of facts in the plea colloquy. The government stated in its facts for both Backstrom and Scruggs that a conspiracy began in March to corruptly influence the state court judge, and Scruggs spoke to say that he had agreed to earwig the judge but not corruptly influence him in March, and that he later agreed to join a conspiracy to corruptly influence the judge. Sid Backstrom took a similar stance....
[See also WSJ law blog and later NMC post, as well as WikiScruggs on "earwigging" as a Mississippi tradition.]
3:18: The Jackson Clarion-Ledger reports: "As part of the plea deal, federal prosecutors agreed to defer prosecution of Scruggs' son, Zach Scruggs, who agreed to give up his license to practice law." [N.B.: NMC @ Folo has a very different take, and other sites are also questioning the C-L's reporting on this point.] Folo at its temporary bivouac has PDFs of the Scruggs and Backstrom pleas and underlying facts, as does David Rossmiller. ABA Journal coverage includes the text of a forthcoming article by Terry Carter on the affair, written pre-plea. Other reactions: Above the Law ("has Scruggs employed bribery as a tactic in other matters -- e.g., the tobacco cases that made him famous ...?"), Beck and Herrmann ("What a week. First Spitzer, and now Scruggs. What goes around, comes around."), TalkLeft, Michelle Malkin, NAM Shop Floor ("So what are the odds that this was Dickie Scruggs' first and only crime during his decades-long career as a trial lawyer?").
6:27: Roger Parloff wonders whether Scruggs will cooperate, and whether the statute of limitations might have run already on tobacco skullduggery. NMC @ Folo wonders what prosecutors will make of a slew of fresh documents from the Scruggs Law Firm, or whether perhaps such documents have already had an effect. Not so surprising a plea, says Jane Genova at Law and More, but rather "widely expected".
Client #9, also known as Eliot Spitzer, enthusiastically enlisted in a crusade for tougher anti-prostitution laws and specifically for steps to raise the penalties for "johns" who patronized the women involved. The campaign bore fruit, and in his first months as Governor Spitzer signed into law what advocates call "the toughest and most comprehensive anti-sex-trade law in the nation". Among other provisions, the law "lays the groundwork for a more aggressive crackdown on demand, by increasing the penalty for patronizing a prostitute, a misdemeanor, to up to a year in jail, from a maximum of three months." (Nina Bernstein, "Foes of Sex Trade Are Stung by the Fall of an Ally", New York Times, Mar. 12).
The Money Laundering Control Act of 1986 was meant to criminalize the practice of "smurfing", or evading reporting requirements on the transfer of large sums of cash by breaking the sums down into transactions below the threshold. ("Smurfs" were low-level operatives who agreed to go into banks repeatedly making deposits slightly below the trigger amount.) Who'd've imagined the law would trip up the best-known white collar crime prosecutor of our era? Newsday has the story, which has a Long Island angle:
Spitzer last year had wanted to wire transfer more than $10,000 from his branch to what turned out to be the front for the prostitution ring, QAT Consulting Group, which also uses a number of other names, in New Jersey, the sources said.
But Spitzer had the money broken down into several smaller amounts of less than $10,000 each, apparently to avoid federal regulations requiring the reporting of the transfer of $10,000 or more, the sources said. The regulations are aim to help spot possible illegal business activities, such as fraud or drug deals.
Apparently, having second thoughts about even sending the total amount in this manner, Spitzer then asked that the bank take his name off the wires, the sources said.
Bank officials declined, however, saying that it was improper to do so and in any event, it was too late to do so, because the money already had been sent, the sources said.
The bank, as is required by law, filed an SAR, or Suspicious Activity Report, with the Internal Revenue Service, reporting the transfer of the money that exceeded $10,000, but had been broken down into smaller amounts, the sources said.
"The bank did the right thing," said one source familiar with the situation. The name of the bank could not immediately be determined.
But the source added that "we then got lucky" in singling out Spitzer and the ring.
Millions of SARs are generated each week and flow into the Internal Revenue Service nationwide, but an analyst at the regional IRS office in Hauppauge [L.I.] noted Spitzer's particular SAR and singled it out for attention to criminal investigators, the sources said.
The assumption, the sources said, was that Spitzer was being victimized either by a blackmailer or an impostor. The agents also speculated that perhaps the governor was involved in some sort of political corruption, the sources said.
If there were no other organized crime connections, that's the kind of crime that might well result in a no-prison time recommendation and sentencing calculation for a first offender pleading guilty and cooperating.
AP also covers the smurfing charges, while Scott Greenfield has thoughts on the gradual erosion of financial privacy; I opined on some related matters in Reason a while back. WSJ law blog and Andrew McCarthy @ NRO discuss other charges that prosecutors might conceivably deploy against the governor. McCarthy, incidentally, contends that "innocent people in legitimate cash businesses have no concern" from the reporting requirements, which is not what I've heard.
More details from Wednesday's NYT: It appears bank Suspicious Activities Reports separately directed investigators' interest to Spitzer's transactions and to the escort service front, QAT Consulting, and then the two investigations converged. "When he was New York State’s attorney general, Mr. Spitzer himself used the reports [SARs] to make his cases."
I've got a piece in this morning's National Review Online on some of the ironies of the Spitzer scandal, which recalls echoes of the former prosecutor's own "imperial CEO" rhetoric and may hinge on a crime -- the "structuring" of cash transactions -- whose enactment was very much part of the trend toward more ferocious white-collar law enforcement that you might call Spitzerization. (Walter Olson, "Saving Spitzer", Mar. 11). P.S. I've also rounded up a lot of web coverage of the scandal over at Point of Law.
A helpful reader sends along the following information about the offense of "structuring", which federal investigators are reportedly looking at closely in connection with the Spitzer affair:
If Spitzer structured cash transactions to evade reporting requirements, he may be guilty of a felony. 31 U.S.C. 5324 prohibits certain actions by any person who acts with the purpose of evading the reporting requirements of Section 5313 (Currency Transaction Reports). The definition of structuring for purposes of currency transaction reporting is found at 31 C.F.R. 103.11(gg). The elements of the structuring regulations are:
A person acting alone, in conjunction with others, or on behalf of others,
Conducts or attempts to conduct,
One or more transactions in currency,
In any amount,
At one or more financial institutions,
On one or more days,
For the purpose of evading the reporting requirements of 31 C.F.R. 103.22 (requiring CTRs).
The definition is specifically written to include those transactions which occur beyond a single business day and transactions which are conducted through more than one financial institution, but only if the purpose of the transaction(s) is to evade the reporting requirements.
The reader adds: "The IRS Manual on the BSA structuring provisions is here."
More: Kerr @ Volokh, WLS @ Patterico, Daniel Gross @ Slate , Mark Steyn ("Almost every white-collar federal offense - wire fraud, mail fraud - boils down to 'paying for the train ticket'"), American Lawyer, ABC News, as well as my new piece @ NRO.
Yet more, from Eric Turkewitz: "It seems likely that an amount in excess of $10,000 must be at issue if this is what was being investigated, which means more of a mess than Eliot already has. And to tickle the bank to act, it may be a sum well in excess of that amount, because I wouldn't think an investigation would be opened if they simply saw two transactions of, say, $6,000 each a few days apart. There could be substantially more at play here."
You know you want to discuss it, so go ahead (news reference).
Judge Biggers grants the prosecution's unusual request, citing not only media coverage and its potential to subject jurors to "intimidation or harassment", but also the "past attempts by the defendants to interfere with the judicial process". (Patsy Brumfield, "Scruggs-Backstrom Case: Jurors will be nameless, for both sides", Northeast Mississippi Daily Journal, Mar. 6; Folo and more; Rossmiller; order in PDF format).
Turns out when Bill Lerach cut his plea deal with the feds, they not only agreed to spare him prosecution on other matters, but also agreed not to press charges against former Milberg lawyers (and current Coughlin Stoia partners) Patrick Coughlin and Keith Park over their dealings with Torkelsen. Another sign, perhaps, that Lerach managed to cut himself and his circle a good deal in the plea negotiations. (WSJ law blog, Mar. 6; earlier).
According to a lawsuit filed by Chase, two Coral Springs attorneys are scamming their clients by promising to eliminate their debts, and then diverting debt payments for legal fees to file meritless lawsuits challenging credit card debts. The attorneys general of Florida, North Carolina, and West Virginia are also involved, and the Florida bar has moved to suspend the license of Laura Hess. "Defendants' ulterior goals are to extract fees from card members who should be paying the money to Chase to satisfy their debts and to maliciously harass Chase in an improper (albeit unsuccessful) attempt to coerce the elimination of their clients' legitimate debts." (Bud Newman, "Chase Bank Accuses Florida Law Firms of Running Debt-Relief Scam", Daily Business Review, Mar. 6).
Update: See also Mar. 6 Business Week; on-line at the self-reported Rip-Off Report; and WATE (Tennessee), Apr. 2. "'The programs typically require financially strapped consumers to pay fees up front, so they make money whether or not any useful services are performed,' says Philip Lehman, an assistant attorney general in North Carolina."
Some developments of the past ten days or so:
* In major blow to defense, Judge Biggers denies motions to suppress wiretap evidence and evidence of similar bad acts [Rossmiller]
* Balducci says he and Patterson got $500K from Scruggs to influence AG Hood to drop indictment of State Farm, motive being to advance civil settlement [Folo]
* Sen. Trent Lott says he's a witness, not a target, of federal investigation [Anita Lee, Biloxi Sun-Herald]
* In effort to get Zack Scruggs indictment dismissed, his lawyers dwell on switch from "y'all" to "you" as implying shift in persons addressed from plural to singular [Folo first, second; Rossmiller first, second; on a "sweet potatoes" point, NMC @ Folo and sequel; also]
* DeLaughter/Peters branch of scandal reaches deep into Jackson legal community [Adam Lynch, Jackson Free Press]
* Article in new American Lawyer notes that Scruggs's ambitious suits have lately hit a big losing streak, notably those against HMOs, nonprofit hospitals and Lehman Brothers [Susan Beck]. And Lotus catches an interestingly lawyerly wording on John Keker's part [Folo]
* I'm quoted and this site is discussed in an article on blog coverage of the case; my lack of clarity as an interviewee probably accounts for Scruggs being said to have addressed audiences at the Manhattan Institute "a few" times, when if memory serves the correct reference is "twice". [Patsy Brumfield, Northeast Mississippi Daily Journal (Tupelo) @ Folo]
Do they often do business this way? The law firm of Coughlin Stoia, known as Lerach Coughlin before the departure of now-disgraced Bill Lerach, has been vying for lead counsel status in a shareholder class action against Coca-Cola. Now Roger Parloff at Fortune "Legal Pad" (Feb. 28) reports that a special master on the case has recommended that the firm be disqualified for "extremely troubling" conduct which it then defended after exposure using "pretextual" arguments. It seems two former Coke executives approached the law firm of Milberg Weiss (predecessor before its split of Coughlin Stoia), one of them in possession of more than 3,000 company documents he'd taken on departure, many stamped "confidential". The law firm then agreed to pay the execs at least $75,000 to serve as "consultants", part of the deal consisting of access to the documents, which it then used in its complaint.
When the consulting agreement came to light more than a year ago, Coughlin Stoia lawyers backed [Greg] Petro’s claim that neither he nor they had thought he was taking Coke documents without authority because, among other things, Petro had been ordered, when terminated, to “clean out his office.” Special Master [Hunter] Hughes found that such a command could not “rationally be construed to authorize Petro to walk off with company documents, any more than it authorized him to take the company’s desk, chairs, and computer.”
Hughes also rejected arguments that the firm was not really buying the documents, just entering into a consulting agreement, and a public-policy style argument that Petro’s conduct should be condoned because he was a whistleblower trying to expose corporate wrongdoing.
In a footnote, Hughes found that public policy arguments weighed in the other direction: “On a very practical level, for the Court to give Plaintiffs’ counsel a pass on this conduct, would simply invite terminated employees, particularly of public companies, to on a wholesale basis remove company documents following their termination in hopes they can sell them should the company be sued.”
This looks pretty major, pattern-and-practice-wise:
John B. Torkelsen, a former expert witness for Milberg Weiss, has agreed to plead guilty to perjury, admitting he lied to a federal court judge in a securities class action case about how he was getting paid.
Prosecutors in the Milberg Weiss case have been eyeing Torkelsen for years.
I wonder whether this will put a crimp in the image rehabilitation op-ed stylings of Bill "My Only Sin Was To Love the People Too Much" Lerach. The implications could ripple out to other class-action firms as well: "In an announcement about the plea agreement on Thursday, prosecutors claim that Torkelsen was retained by several firms" and that the other firms engaged in misbehavior akin to that of Torkelsen's handlers at Milberg. (Amanda Bronstad, "Former Milberg Weiss Expert Witness Agrees to Plead Guilty to Perjury", National Law Journal, Feb. 29). Our earlier coverage of Torkelsen is here.
Alan Lange and commenters are jumping in to excerpt some of the more damning excerpts (YallPolitics Feb. 19; more). And in the department of curious wordings, from the Jackson Clarion Ledger: "Circuit Judge Bobby DeLaughter has told federal authorities he became aware in 2006 that some people were trying to improperly influence him to rule in favor of lawyer Dickie Scruggs in a Hinds County legal-fees dispute. DeLaughter told authorities he didn't know whether he was influenced [emphasis added] but says he's followed the law in all his rulings." (Jerry Mitchell, "Judge: Efforts to sway made", Feb. 24).
Big news day in the Scruggs scandals: a judge has turned down defense motions to throw out the charges and to suppress the evidence, a hearing on those motions has showcased the testimony of government informant Tim Balducci, and the government in responding to the motions has released extensive and often quite damning transcripts of the wiretap conversations among the principals. Folo as usual provides the most in-depth coverage, with posts on the judge's rulings here and here, on the hearing and Balducci's testimony here and in numerous preceding posts, and on the wiretap transcripts here and in numerous preceding posts. David Rossmiller is on the judge's ruling here, and on the hearing and transcripts here. More: Patsy Brumfield, NEMDJ, was at the courthouse.
Picking through the rich contents of the transcripts and Balducci's testimony is going to keep Scruggsians busy for a good long time. In the meanwhile, some odds and ends:
* Want to review all the major events of the central alleged bribery case, skillfully narrated in chronological sequence? Of course you do. Folo's NMC has it in six parts beginning here and ending here (follow links to find those in between).
* Mississippi legislature won't give AG Jim Hood authority to wiretap
his enemies suspected white-collar criminals. Gee, wonder why that might be? [WLBT via Lange] Plus: description of Hood as a Pez dispenser coughing out multi-million-dollar cases for his chums [Rossmiller]
* More Hood: prosecuting the accused judge-bribers "would be like prosecuting a relative" [Salter, Clarion-Ledger, Rossmiller, Folo]. Give back tainted money? "That's up to DAGA [Democratic Attorneys General Association]" [Lange]
* Small world, Mississippi: member of arbitration panel that awarded Scruggs huge fees was later hired by the tort potentate for legal work [Lange]
* Blogosphere has been a major source for breaking news on the scandal [LegalNewsLine]
* Liberal columnist Bill Minor recalls when a certain Sen. McCain let Dickie Scruggs and Mike Moore run their tobacco lobbying campaign out of his Hill office [NEMDJ via Folo; more at PBS "Frontline" and NY Times]
Large corporations have long argued that class action lawyers are nothing more than extortionists who shake down big companies every time their stocks fall, forcing them to settle or risk fiscal ruin from a big jury verdict. Given what’s known now about how Lerach operated his law firm, it's hard to say that the perception is only spin.Mencimer, though, gives too much credit to Lerach's self-serving "corporate crime fighter" identity. Lerach sued indiscriminately. To the extent that a small proportion of the defendants in Milberg Weiss cases were actual wrongdoers, it was a function of a stopped clock being right twice a day. It was because Lerach sued so often without actual evidence of wrongdoing that his early suit against Enron was dismissed: when faced with the biggest corporate scandal in history, Lerach couldn't actually make the case until after the fact. Given that the decades of jail time Enron and WorldCom executives are facing, and the fact that a Lerach suit was at least as likely to be against the innocent as the guilty, it's hard to say that the Lerachs of the world added much in the way of deterrence of corporate wrongdoing, as opposed to the deterrence of corporate investment. All Milberg Weiss and its successors accomplished was to transfer wealth from investors to their own pockets, with a taste for the politicians like Bill Clinton and other Democrats who helped weaken or block efforts to reform the securities laws. Ken Lay raised a fraction as much money for Republicans without any sort of quid pro quo, yet his relationship to Bush has gotten far more attention than Lerach's relationship to the Democrats and the favors they did for him at the expense of everyday investors.