Monthly Archives: February 2016

Lawyers Behaving Badly

60_minutes I have watched the 60 Minutes story, Anonymous, Inc. (link here), only once and have just skimmed the report by Global Witness, so let me start by saying that these are very preliminary assessments – but on first blush, what I have seen is quite disturbing: a dozen lawyers from different firms, when presented with the opportunity for a significant fee, provided preliminary advice on how to help a potential client “scrub” dirty money by explaining how to structure transactions to hide the source of the funds (in contrast, a thirteenth lawyer who was approached refused to provide any advice or assistance to the potential client). There are a wide number of ethical questions raised: do the prescriptions of Model Rule 1.2(d) apply to prospective clients?; to what extent do the lawyers in the video “know” that the prospective client has obtained the funds through crime or fraud?; what obligation exists to perform due diligence to determine if the funds are the result of crime or fraud, etc.? (Two prominent ethics experts, who provided an opinion about the conduct of the lawyers involved in the story, have expanded on their views here).

There are also some very interesting behavioral questions: why would these lawyers, who presumably are aware of the ethical prohibitions against assisting fraud and criminal conduct, seemingly skate toward (or over) the edge of permissible conduct so easily? Merely out of greed and avarice or because of powerful behavioral factors, such as partisan bias, where advancing a (potential) client’s interest trumps the formal rules prohibiting such conduct? Is cognitive dissonance at play: once the lawyer starts to provide advice on how to structure a transaction to protect anonymity is there a need to rationalize the behavior as consistent with the ethical rules? Is motivated reasoning afoot – allowing the lawyers to convince themselves that the rules are ambiguous enough that the advice (and the potential hefty fee) is permissible? How about moral disengagement — after all, the misbehavior that produced the dirty money happened far away, across the globe, with no identifiable (or at least immediately salient) victims? Per this last point, is this an example of ethical fading, where the business aspects of the decision (how to provide the potential client with technical advice on how to hide the source of the funds) crowded out the ethical considerations involved? These are just some of the questions that jumped out at me as I watched this disturbing video.

I will spend more time thinking about these issues, posting more as I delve deeper.

(Disclosure: The CEO of Global Witness, which led this undercover investigation, and I worked together for many years and we are friends).

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