|Some careers are known to be risky, but the practice of law typically is not one of them. Yet lawyers are exposed daily to the scary risk of criminal consequences for the practice of law. Terry Christensen, a respected member of the California bar, hired a private investigator, Anthony Pellicano, for a client's divorce case. Christensen now finds himself charged in a criminal indictment, which alleges that the investigator conducted illegal wiretaps and Christensen used information gleaned from the wiretaps to secure a litigation advantage.1 Christensen faces two counts of conspiracy and wiretapping.2 Whatever the outcome of the case, Christensen--a civil attorney litigating a civil case--has been charged with crimes, and the fact that he may be vindicated at trial will do little to remedy the damage to his reputation.
Unfortunately, situations like Christensen's are not unique. More typically, civil litigators, whose very role some consider to be obstructionist, are charged with obstruction of justice rather than conspiracy. This is so because under current law, the line between laudable, ethically mandated, zealous advocacy and criminal obstruction of justice is not always clearly demarcated.
Consider a scenario in which a lawsuit challenges a drug manufacturer's advance knowledge of risks posed by one of the company's drugs. A subpoena calls for production of all studies conducted by the company regarding the drug. The manufacturer's lawyer knows the company created an affiliate company expressly to study the effects of the drug, and that the affiliate, but not the named party defendant, is in possession of the study. Should the lawyer obtain a copy of the study from the affiliate and produce it? Alternatively, should the lawyer direct an associate to send a letter to opposing counsel indicating that the manufacturer possesses no documents responsive to the subpoena request?
Or consider the situation in which a lawyer is defending a corporate client on civil fraud allegations. The opposing party has issued a deposition subpoena to an employee of the corporate client. The corporation's lawyer does not realistically think the employee has any criminal fraud exposure and therefore concludes that the employee does not need representation separate from corporate counsel. Later, however, a question is posed in the employee's deposition, the answer to which may be harmful to the company. Should the corporate attorney counsel the employee to invoke his Fifth Amendment right to remain silent and not answer the question, or even advise the employee of the existence of that right?
Suppose another attorney is hired by the corporation's lawyer to represent the employee and to advise him whether to assert his Fifth Amendment right in the deposition. The new lawyer's fees are paid by the corporate client. The new lawyer recognizes that if the corporation's lawyer is pleased with his performance, further referrals of business will likely follow. The witness's lawyer also recognizes that his client's testimony will be harmful to the corporation's legal interest but his client is unlikely to suffer criminal prosecution. Should the new lawyer advise his client to assert his Fifth Amendment right and decline to answer?
As these scenarios and many others illustrate, even lawyers whose practice is limited entirely to civil litigation may find themselves enmeshed in situations calling for a nuanced understanding of criminal law. The legal ethics rules in many states are silent or vague on a number of topics, including the dilemmas posed by these scenarios.3 Compounding the problem is the fact that all attorneys are ethically required to zealously represent their clients.4 As a result, an attorney may, in some instances, be ethically bound to approach the line between ethical and unethical conduct. Because most states' ethical codes are silent as to the precise location of that line, or define the line by reference to the criminal code, the de facto or de jure ethical line is drawn when the attorney's conduct becomes criminal.5 This may mean that ethically representing a client requires attorneys to strive for the best result for their clients using all methods just short of committing a crime.6
A conservative approach advocated by some commentators is to never communicate to a nonclient witness anything that could be perceived as legal advice.7 That approach, however, leaves unresolved many questions for a corporate attorney like the one in the second scenario, defending a corporate client and pondering how to counsel a corporate employee witness, unless he or she is prepared to recommend that the corporate client hire an attorney for every potential employee-witness in the lawsuit. In addition, adopting a conservative approach to challenging ethical questions may result in the lawyer's representation falling below the standards of zealous advocacy. Indeed, in the context of criminalizing attorney conduct, Justice Antonin Scalia has warned of the dangers of chilling legitimate advocacy.8
Nuts and Bolts of Obstruction of Justice Law
Criminal practitioners refer to "obstruction of justice" as a collective term for a series of federal crimes. Conduct by a lawyer may constitute obstruction of justice in violation of Title 18 United States Code Sections 1503 or 1512, if the following elements are present:
1) The existence of a "pending proceeding."
2) The defendant must know or have notice of the proceeding.
3) The defendant must endeavor to obstruct justice.
4) The defendant must act corruptly with the specific intent to obstruct
or interfere with the proceeding.
5) The defendant's conduct must have the natural and probable effect of
interfering with the proceeding.9
No specific methods of obstruction are enumerated in the statutes. This means that any actions can constitute obstruction if done with the requisite intent.10 Indeed, the statutes cover conduct that is otherwise entirely legal. For example, the First Circuit upheld a conviction of an attorney who advised his client to invoke his Fifth Amendment right.11 In so doing, the court soundly rejected the notion that for attorneys, a corrupt motive may not be found in the absence of an independently illegal act.12 As a result, no act, not even traditional litigation tasks, are excluded from the realm of prosecutable conduct.
When lawyers retained to defend a client in a civil lawsuit respond to a document subpoena, talk to a prospective witness, or advise their client, these actions presuppose a pending proceeding and the lawyers' knowledge of the proceeding. Because a lawyer's goal is typically, at least in part, to impede his or her adversary's search for the truth, and because limiting access to the truth can be seen as obstructing justice, almost by definition a lawyer's conduct may approach obstruction of justice. The critical question is whether the conduct was committed with the requisite intent. Accordingly, there is no lawyerly conduct, no matter how "traditional," that is, ab initio, clearly exempt from the purview of criminal obstruction of justice law.
Given the fine line between zealous advocacy and obstruction of justice, attorneys facing criminal prosecution have advocated for a special privilege due to the unique nature of their ethical duty.13 Courts have resoundingly rejected such arguments, holding that as long as an attorney acts with the requisite intent, he or she can be prosecuted for obstruction of justice.14 Far from recognizing a privilege, some courts have held attorneys to an even higher standard than other parties in obstruction of justice proceedings, explaining that attorneys possess a "heightened awareness" of the law and have a "sophisticated understanding of the type of conduct that constitutes criminal violations of the law…more so than an ordinary individual."15
Congress recently passed a statute containing a defense uniquely available to attorneys. Under the statute, attorneys do not commit a crime when they "provid[e] lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding."16 However, this defense suffers from the same basic problem as the criminalizing statutes--it does not define or enumerate any specific legal representation services. This defense requires the legal services to be "lawful," that is, done without corrupt intent. Accordingly, if a legal service is done with corrupt intent, it cannot be a "lawful legal representation service." As a result, this defense merely returns the focus of the inquiry to whether the act was done with the requisite intent.
To understand obstruction of justice as applied to the legal profession, it is crucial to understand that the whole issue comes down to the intent element: If the lawyer was acting "corruptly" while practicing law, he or she is guilty; if the lawyer was acting in good faith, he or she is not. Looking to how courts have defined "corruptly," neither the Ninth Circuit's definition--"the specific intent to obstruct justice"17--nor the Fifth Circuit's definition--"acting with an improper motive"18--sheds much light on what conduct falls within and without the confines of the law. For lawyers, the scariest holding was the one in which the Seventh Circuit stated that the fact that an attorney's actions were "motivated by his attempt to protect his client from prosecution" was of no significance because those same actions demonstrate that the defendant-lawyer "clearly intended and corruptly endeavored to obstruct justice."19 Clearly, the definition of the intent element leaves something to be desired.
A review of some fact-specific cases sheds a little more light on the definition. In United States v. Cintolo, during a grand jury investigation an attorney advised his client to invoke his Fifth Amendment right and suffer contempt charges even though he had immunity.20 The First Circuit found that the attorney's advice was motivated not by a desire to protect his client but for the purpose of shielding other individuals--those who would be inculpated by the client's testimony.21 As a result, the First Circuit affirmed the finding that the attorney-defendant had acted corruptly and was therefore guilty of obstructing justice.22
In United States v. Cioffi, an attorney advised a nonclient witness to invoke his Fifth Amendment right in an SEC investigation and suggested that some benefit--the forgiveness of a loan that a third party had made to the witness or avoidance of harm to the witness's wife--might flow to the witness if he did so.23 Even though the evidence could be interpreted as the attorney inquiring of the status of the cancer-stricken wife of the witness rather than threatening the wife's demise, the Second Circuit not only affirmed the attorney-defendant's conviction for obstruction of justice but also rejected the notion that advising a nonclient witness to invoke his Fifth Amendment right is protected conduct.24
In contrast, the Fifth Circuit perceived no impropriety in an attorney's contacting counsel for a codefendant to impress upon him the danger of his client's testifying and to remind the attorney of his client's Fifth Amendment right to remain silent.25 Also, the Supreme Court has firmly established that in appropriate circumstances it is permissible for attorneys to offer such advice to their client, even if the advice to invoke the Fifth Amendment right would inevitably lead to less information being supplied and, consequently, justice being obstructed.26
In United States v. Cueto, the Seventh Circuit affirmed the obstruction of justice conviction of an attorney who, during a pending covert federal investigation, obtained a state court injunction barring an undercover federal investigator from interfering with his client's business operation and requested that the state attorney's office criminally prosecute the agent.27 Although this conduct is ostensibly legal (independent of obstruction of justice) and motivated, at least in part, by a desire to protect his client, the Seventh Circuit upheld the attorney's conviction because the attorney, in addition to his role as advocate for his client, had also entered into a business relationship with his client and personally benefitted from his client's continued business operations.28 In other words, the court was satisfied that Cueto's actions were "corrupt" because he personally benefitted from them as opposed to his client being the sole beneficiary.
The common theme derived from these cases is that courts appear to find corruption when there is a departure from the traditional role of a lawyer advising a client for the benefit of only that client. Cintolo was protecting a third party, Cioffi was giving legal advice to a nonclient, and Cueto was protecting himself. Courts first seem to distinguish between an attorney acting in the best interests of a client and an attorney acting in someone else's interests and then reason that if an attorney is acting in someone else's interests, he or she must not be acting in the best interests of the attorney's client and is therefore acting corruptly.
There are other significant factors in determining whether a situation poses a risk of an obstruction of justice charge for a lawyer. First, a lawyer is not shielded from obstruction of justice liability merely because the proceeding in which a corrupt act takes place is civil or because the government is not a party to the proceeding.29 A lawyer who destroys documents responsive to a subpoena issued in a civil lawsuit is clearly in violation of obstruction statutes. Moreover, while much ink has been spilled regarding the type and duration of the pending proceeding that is required as an element of a federal prosecution for attorney obstruction of justice,30 it is clear that a postcomplaint prejudgment civil lawsuit constitutes a pending proceeding.31
Second, although the violation of federal criminal obstruction of justice law requires an endeavor to obstruct a federal proceeding, a lawyer engaged in a state litigation can still be liable for federal obstruction of justice if his or her conduct has the collateral effect of undermining, for example, a federal investigation.32 By contrast, obstructing a California state litigation that has no bearing on any federal investigation33 would be prosecutable, if at all, under California state law. California state obstruction of justice law is much narrower than federal law. California law makes criminal only certain discrete acts such as subornation of perjury,34 solicitation of perjury,35 and obstructing a police officer during the performance of his or her official duties.36 In California there is no crime defined as general obstruction of justice; however, conspiracy to obstruct justice is a crime under California law.37
Third, it is not necessary for a lawyer's act to actually obstruct justice. Even if, for example, the lawyer who destroys a subpoenaed document delivers another copy of the document to the propounder of the document subpoena, a prosecution for obstruction of justice could still lie. That is because the crime punishes mere "endeavors" to obstruct justice.38 An "endeavor" encompasses a broader range of action and includes any effort that has the natural and probable effect of interfering with justice.39
Fourth, a lawyer who engages in "misleading conduct" may be found to obstruct justice.40 Federal law provides that misleading conduct toward a possible witness to "influence, delay or prevent" testimony or to withhold, alter, or destroy a "record, document or other object" is a felony. Misleading conduct includes 1) omitting information so that a part of a statement is misleading, 2) creating a false impression, or 3) creating a false document.41
Lastly, it is important to bear in mind that the government can secure an indictment of a lawyer without alleging that the lawyer was not providing legal services.42 Even if the lawyer was in fact providing lawful legal services, that fact alone cannot achieve dismissal of an indictment. Accordingly, even an attorney who is vindicated at trial has nonetheless suffered the stigma of public indictment.
Applying the Law
In the scenario in which an attorney is faced with a decision whether, in response to a document subpoena, to produce a document in possession of a corporate affiliate, the ethical code does not address the issue other than in the general duty of an attorney to be a zealous advocate. The constraint on this duty, found in criminal law, dictates that it is a crime to conceal or destroy documents responsive to a document subpoena.43 So how do these rules operate in conjunction with one another?
The threshold question asks whether the document is responsive to the subpoena. If, on the one hand, the document is not responsive to the subpoena (that is, because there is no such study in possession of the company), then there is no affirmative obligation to produce the study. A narrow reading of the subpoena may reach this result. If the attorney concludes that despite the fact that the study is not technically responsive to the subpoena, it is relevant to the proceedings and produces it, this attorney may have violated his ethical duty to zealously represent his client and may have exposed himself to malpractice charges. In the absence of an affirmative obligation to produce the document, the attorney is barred from harming the client. Thus, if the document is not responsive to the subpoena, it probably cannot be produced even if the attorney believes that some sense of justice requires it.
If, on the other hand, the document is responsive to the subpoena, must the attorney produce it? To be sure, it is a crime for the attorney to conceal or destroy the document. However, the Ninth Circuit was clear that mere failure to produce documents, without more in the way of actions or conduct, does not constitute an intent to obstruct the proceeding in which the documents were subpoenaed.44 Indeed, the U.S. Supreme Court reversed a contempt conviction of an attorney who had counseled his clients not to respond to a subpoena duces tecum because the attorney acted in good faith.45 So one could imagine some response to the subpoena that does not involve the production of the document but also does not constitute active concealment or destruction.
Assuming the lawyer is not going to produce the document requested by the subpoena, the lawyer would presumably have an associate communicate that fact to opposing counsel. This would typically be accomplished via a letter stating there is no document responsive to the subpoena. The danger in this action is that if a lawyer directs an associate to write a letter omitting material information--that there is a document on point but not in possession of the subpoenaed corporate entity--the lawyer has arguably engaged in misleading conduct toward another person with intent to cause or induce a person to withhold a document from an official proceeding in violation of 18 USC Section 1512(b). It is important to remember that any conduct can be construed as obstruction of justice, so the fact that the lawyer's statement is literally true (there is in fact no company study responsive to the subpoena) is not a defense. Unlike the crime of perjury in which literal truth is an affirmative defense,46 there is no literal truth defense to obstruction of justice.
Once one recognizes that the lawyer may have committed the actus reus of a crime, the question becomes has the lawyer done so with the requisite mens rea? If the lawyer is acting corruptly, he or she will be found to have obstructed justice; if the lawyer is acting in good faith, he or she will not. To complicate matters, most, if not all, of the evidence of good faith will lie in the attorney's own mind. The Section 1515(c) good faith defense offers little protection because it essentially inquires into the nature of the attorney's thoughts. While there do not seem to be any prosecuted cases of attorneys under this theory, the defense is seemingly weak. If some other evidence were to surface (for example, if the lawyer had a personal stake in the outcome of the litigation or the lawyer was acting in the best interest of someone other than the nominal client), it may be enough to tip the scale in favor of prosecution. Although the rule of lenity--in an ambiguous statute an action that is not clearly prohibited is legal47--offers some solace, it is of little comfort to practicing attorneys who must risk indictment to fulfill their ethical duties to their clients.
The second scenario tackles the issue of a lawyer for a corporate party dealing with the corporate client's employee, who is a witness. In preparation for the witness's upcoming deposition, perhaps the corporate lawyer has reviewed his correspondence and has debriefed the witness. The lawyer may not think the witness has any personal exposure but is aware of conduct by the employee that may be harmful to the lawyer's corporate client.
Practitioners facing this situation must be aware of criminal obstruction of justice law, which provides that intimidation or misleading conduct toward a possible witness to "influence, delay or prevent" testimony is a crime. Given these parameters, lawyers could very well face obstruction of justice liability if they mislead a witness into thinking that it is in the witness's best interest to invoke his or her Fifth Amendment right when, in fact, the lawyers are counseling the witness to invoke the Fifth Amendment in order to protect their client.
Knowledge of the Cioffi case is crucial. Attorney Cioffi was convicted of obstruction of justice for meeting with a witness, encouraging him to invoke his Fifth Amendment right, and offering the witness a benefit--forgiveness of a $25,000 loan--and avoidance of some detriment--harm to his wife--if the witness invoked his right.48 If Cioffi had not offered the benefit, would he still have committed obstruction of justice? That is, if Cioffi had merely met with the witness and encouraged him to invoke his Fifth Amendment right, would that have been enough to sustain a conviction? There does not appear to be a case on point, but the Third Circuit has recognized that the language of 18 USC Section 1512 is broad enough to encompass criminal responsibility for a lawyer advising a nonclient witness to invoke his or her Fifth Amendment right.49 Given this case law, the prudent lawyer would be wise to avoid advising nonclient witnesses to invoke their Fifth Amendment right.
Attorneys who "merely inform" witnesses of the existence of their Fifth Amendment right as opposed to advising its invocation could also face exposure, particularly if the "mere information" would be interpreted by a reasonable person as advice to assert the Fifth Amendment right. Attorneys should bear in mind that courts have deemed that "whatever the contours of the line between traditional lawyering and corrupt intent may be, they must inevitably be drawn case-by-case."50 As a result, with no case law on this point, attorneys in this situation must risk indictment in order for a court to determine whether their behavior was zealous or criminal.
Ultimately, the best solution for lawyers in this situation is to ensure that another attorney is involved in the case exclusively to represent the interests of the witness. Case law protects an attorney who conveys an encouragement to invoke a Fifth Amendment right through the filter of an attorney representing the witness.51 Apparently, if the witness in the second scenario has his own counsel, the corporate client's lawyer may be able to persuade the witness to invoke his right while knowing the witness will get the benefit of independent legal advice.
This scenario posits that the corporate client's lawyer enlists the aid of another lawyer to represent the witness, the newly retained lawyer recognizes that his legal fees are being paid by the corporate client, and the corporate client's lawyer is a good source of future referrals. The corporation and its lawyer will be pleased if the employee asserts his Fifth Amendment right. Can the newly retained lawyer thus counsel the witness to invoke the Fifth Amendment on these bases? The answer is, of course, no. The lawyer must put the personal benefits of the invocation out of mind and focus solely on the best interests of the client. The newly retained lawyer may advise the client to invoke the right or not, but the advice must be based solely on what will most benefit the lawyer's client.
If a witness's lawyer allows external motivations to influence his or her counsel, the lawyer is no longer acting with good faith, since the advice is based on factors other than the best interests of the client. On the other hand, if the lawyer does not allow external motivations to influence his or her thinking and considers only the best interests of the client, although the lawyer is not guilty of obstruction of justice, the lawyer still may not be in the clear. Most crimes, and obstruction of justice is no exception, are prosecuted based on the actus reus of the crime, not the mens rea, because it is impossible for a prosecutor to know with certainty what goes on in another's head. The scenario in which the lawyer considers motivations extraneous to the best interests of the client may, from the prosecutor's vantage point, look exactly the same as the scenario in which the lawyer does not consider such motivations. Both scenarios posit a lawyer with a personal financial interest advising his or her client to invoke the Fifth Amendment right and the client does so, resulting in evidence being suppressed. As a result, the virtuous lawyer may still be charged even though he or she has not committed a crime.
Nevertheless, there are some steps lawyers can take to create exculpatory evidence regarding virtuous intent and thereby reduce the likelihood of being charged. One option is to draft a memo to file detailing a lawyer's thinking at the time of counseling the client to invoke his or her Fifth Amendment right. Another option is to consult a legal ethicist. If an ethicist sanctions a lawyer's conduct, then the lawyer may have both a defense and a witness to testify on his or her behalf. Unfortunately for the practicing attorney, obstruction cases against attorneys turn on very fine lines--and some of them involve an inquiry into the lawyer's thinking. Exculpatory evidence will help a lawyer avoid conviction but will not necessarily avoid indictment or the accompanying embarrassment or harm to the lawyer's reputation.
There are situations in which the line between zealous advocacy and
obstruction of justice is hazardously vague and relies on invisible evidence
of the inner thoughts of a practicing attorney. Because the distinction
in obstruction of justice law between criminal and legal is so fine, and
the repercussions so severe, civil litigators must acknowledge that if
they are not aware of the law of criminal obstruction of justice, they
may be doomed to violate it--or come perilously close.