Of Snitches and Privileges

500 Pearl Street and white-collar crime

500 Pearl Street and white-collar crime

White-collar writer Walt Pavlo of @Forbes and 500 Pearl Street quotes us this morning in his insightful @Forbes article about the attorney-client privilege.  In particular:

Federal prosecutors want to know who knew what, and when [about the GM ignition-switch problem].  However, GM’s lawyers and former lawyers are bound, like all lawyers, to uphold the attorney-client privilege.  A privilege clients enjoy with their lawyer to openly discuss matters with the assurance that their comments will not be disclosed to others.  While the media, Congress and the general public may want an individual(s) held accountable, that information should not come from GM’s lawyers who have been intrusted with confidential information.

Every defense attorney knows more than any judge, jury or prosecutor will ever know about their client.  That is a cornerstone of how our adversarial justice system works.  We have a right to an attorney and we disclose everything to that attorney trusting that we will be treated fairly by justice.  Can you imagine a trial where an attorney testifies against her own client?  Neither can I.  Corporate lawyers charged with compliance have a client also, the company.

“The purpose of the attorney-client privilege is to find out the truth, to openly discuss truth, to encourage the client to openly discuss the truth with his or or her lawyer,” according to white-collar defense attorney Jack Sharman of Lightfoot, Franklin, White LLC.   “At the back end of our justice system, at trial,” he continued, “there’s no doubt that the privilege restricts the availability of some information, some of which is important, but the privilege encourages candor at the front end.”

Having covered a few white-collar trials I can tell you that legal motions by both prosecution and defense lawyers to suppress trial evidence are as common as moths around a porch light.  In those cases,  getting to the truth at trial is a bit tougher since the incentive is to win, not necessarily to discover the truth.  So what good is truth at the front end?

“Your duty as a lawyer is to the client only, whether that is a company or an individual.” Sharman, who also has more of his own views on the GM fallout, said.  “When a lawyer tells the client that the information they are disclosing is protected, then that provides an environment, an incentive, for the person to speak the truth.”  While that “truth” may not be disclosed, it may be acted upon.  “If an employee tells a company lawyer that they have seen something inappropriate or unlawful, that does not prevent the lawyer from speaking up within the organization,”  Sharman said.  Perhaps this did or did not happen in the GM case but the internal report by Anton Valukas found no intentional cover-up at the company and the release of that information disclosed more truth about the case than had been previously disclosed.   So truth has its place and the privilege of confidentiality promotes speaking up rather than hindering it.

Read the full Forbes article here: The Role Of Lawyers In Compliance Should Not Include Snitching.


Privilege, Corporate Silence and Saul Goodman

"This attorney-client privilege issue gives me a headache."

“This whole attorney-client privilege issue gives me a headache.”

We are past Labor Day, and just as well.  Marked by the GM internal-investigation report’s criticism of some of the company’s internal lawyers, the summer was not kind to internal lawyers generally and to the attorney-client privilege particularly.  Consider, for example, the FCPA Blog‘s note on how life is tough for internal counsel.

Even more notably, there is apparently a federal criminal investigation of GM that includes the conduct of the lawyers:

Prosecutors could try to charge current and former GM lawyers and others with mail and wire fraud, the same charges Toyota faced, said a former official who worked on the Toyota case. But, they would need to have clear proof that the employees knew the cars were faulty and then deliberately withheld that, the former official said.

The investigation could be hindered by attorney-client privilege, according to legal experts, but that privilege can be waived by GM or pierced by a “crime-fraud” exception that allows disclosure of information intended to commit or cover up a crime or fraud.

The notion of privilege has taken a beating in recent weeks, as shown in a New York Times “Dealbook” article (Keeping Corporate Lawyers Silent Can Shelter Wrongdoing) by Steven Davidoff Solomon, a professor of law at the University of California, Berkeley:

[U]nless a whistle-blower steps forward, the [attorney-client privilege] principle remains strong. Despite the widespread involvement of its legal staff, General Motors successfully invoked the privilege to help keep silent on the ignition scandal it eventually faced. Even the Justice Department changed its guidelines in 2008 to remove a provision that penalized companies for invoking the privilege.

The result is that companies have a great incentive to shift anything hinting at legal trouble to their in-house counsel to ensure that it is protected from disclosure. The in-house legal department thus becomes the “cover-up and damage control” arm of the company.

. . . .

Is it time to cut back privilege or even end it to prevent companies from hiding corporate crimes?

And, here’s further commentary from Lucian E. Dervan at the White Collar Crime Prof blog, focusing on the Delaware Supreme Court opinion in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW,Del. Supr., No. 614, 2013 (July 23, 2014): Privilege, Corporate Wrongdoing, and the Wal-Mart FCPA Investigation.

It’s enough to make a law-abiding internal lawyer (and even the supporting-cast outside counsel) feel like Walter White’s lawyer, Saul Goodman, in Breaking Bad:

What’s to be done?

Here are my thoughts in 140 seconds:

We have written on GM and the privilege before: How To Avoid Being GM’ed: The Wrongs and Rights of Clients and Lawyers.  In particular:

It is by no means inconceivable that bills will be introduced seeking to impose, in GM-like situations, a Sarbanes-Oxley style “reporting” requirement on internal lawyers (or outside counsel, or both), coupled with a “private attorney general” concept and whistleblower bounties.  As in the SOX, internal-investigation world, if the matter is sufficiently serious, you may need two law firms: one firm that does an investigation and prepares a report that we all know will end up in the hands of the Government, and one firm that provides advice to the company (or the board, or a committee of the board) and over whose work we hope to maintain privilege.  We have addressed internal investigations and related problems before.

Indeed, it is instructive to compare the anti-privilege sentiment in its most pitchfork version with the recent decision of the D.C. Circuit in the KBR matter, which was a resounding reaffirmation of privilege in the internal-investigation context.  As we pointed out in It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision:

It is noteworthy that the D.C. Circuit clarifies the rule such that it applies in all contexts: civil, criminal and administrative.  The attorney-client privilege is, to some degree, in derogation of the search for the truth, at least in the first instance.  Yet, lawyers learn things from clients that the lawyers then do not have to reveal because we believe that, on balance, “truth” is ultimately best served in an adversarial system by a tool that encourages clients to tell their lawyers the truth.

This is an often overlooked point.  Frequently, clients do not tell lawyers the whole truth, at least the first time a discussion arises. This is particularly the case in criminal representations, but it is not uncommon in the civil arena.  Sometimes, this reticence arises from a client’s knowledge of his, her or its wrongdoing, and a concomitant desire to hide or destroy evidence.

More often, however, that initial reticence arises from much more innocuous sources: embarrassment, shame, misunderstanding, fear of losing a job or worry about how superiors or colleagues might react.  In those contexts, it is the privilege itself that is most solicitous of the truth, and allows the truth to eventually out.

In fact, if you do smell a rat, sometimes there is all the greater need to speak in confidence:

The attorney-client privilege has engendered debate ever since its first articulation, and that debate is healthy.  We should not let the urgency of news items, however, obscure the broader good that the privilege can serve.  There are many things that, in our adversarial system, the Government does not get to know about my clients.  We could change the system to a more inquisitorial structure, but such a move goes against a host of cultural and constitutional mindsets that, however imperfectly, have preserved individual liberties, property rights and the rule of law for a long time.  There are few professional prospects more pleasant for a prosecutor or a regulator than an opportunity to strip you of the ability to speak in confidence to your lawyer.

As well-stated by Saul Goodman:


Weekend: cocktails, World War I, Alexandr Solzhenitsyn and Marvin Gaye

For this weekend: cocktails, World War I, Alexandr Solzhenitsyn and Marvin Gaye.

From Saveur, warm-weather whiskey cocktails.  Some of the drinks sound good.  All of the photos are cool:

Bordeaux Sour (via Saveur)

Bordeaux Sour (via Saveur)

From the folks at Garden & Gun magazine, Ten New Southern Beers and a bourbon root beer float not far down the road from us:

Rob McDaniel met Will Abner for the first time in a field in southwestern Virginia. They were both at Lambstock, shepherd Craig Rogers’s bacchanalian annual gathering of farmers, chefs, bartenders, and other food-and-beverage types. “I was finding wood sorrel and wild shiso in the fields up there. Will just started making cocktails with it. I thought, ‘That’s pretty cool,’” says McDaniel, who runs the kitchen at SpringHouse in Alexander City, Alabama. “When I went back to the restaurant, I said to our front-of-house manager, ‘We’ve really got to talk to this guy.’ He was just slinging drinks then, you know, at some bar that closed at three a.m.”

From our friends at Gastronomista, an article on honey solera aged daiquiris, plus more cool photos:

The Honey Daiquiri (via Gastronomista)

The Honey Daiquiri (via Gastronomista)

From The Guardian in London, a piece on the science of mixing mind-blowing cocktails:

Likewise for Thomas Aske, one of the pair behind the Worship Street Whistling Shop in Shoreditch, east London, who regularly lectures on multi-sensory drinks, a cocktail always starts with a story. “It could be derived from anything but often it’s the brand of spirit you’re using,” he says. For instance, a barrel-aged cocktail based around Clynelish highland whisky was cooled with a frozen pebble from the coast of Scotland. “It could add a bit of minerality,” says Aske (unsure whether that effect would be physiological or purely psychological), “but it also can hold its temperature without offering the dilution that ice does, so you’ve still got the intensity of flavour.”

It was the frozen stone.

It was the frozen stone.

I prefer my cocktails without frozen stones, an impulse that may have inspired this rant about when the martini went off the rails:

Step into a trendy restaurant and look at the liquor menu. A whole section will be devoted to martinis of every hue and taste – strawberry, watermelon, jalapeno and (for all I know) bubblegum. These alleged martinis are the equivalent of the drinks you used to get in Jamaica or at Harry’s Glass Bar: crowned with paper umbrellas, stuffed with sliced of tropical fruit or celery or cucumber, they declared themselves sui generis, though no one could say of what genre they were “sui.” These are drinks for people who do not like the taste of drinks, martinis for martini haters.

 

Walker Percy is one of the great post-war 20th century American novelists.  He also drank bourbon until his doctor forbade it.  In an essay from Signposts In A Strange Land,Percy notes (in Bourbon):

Not only should connoisseurs of bourbon not read this article, neither should persons preoccupied with the perils of alcoholism, cirrhosis, esophageal hemorrhage, cancer of the palate, and so forth—all real enough dangers. I, too, deplore these afflictions. But, as between these evils and the aesthetic of bourbon drinking, that is, the use of bourbon to warm the heart, to reduce the anomie of the late twentieth century, to cure the cold phlegm of Wednesday afternoons, I choose the aesthetic. What, after all, is the use of not having cancer, cirrhosis, and such, if a man comes home from work every day at five-thirty to the exurbs of Montclair or Memphis and there is the grass growing and the little family looking not quite at him but just past the side of his head, and there’s Cronkite on the tube and the smell of pot roast in the living room, and inside the house and outside in the pretty exurb has settled the noxious particles and the sadness of the old dying Western world, and him thinking: “Jesus, is this it? Listening to Cronkite and the grass growing?”

A superb question, here in late middle-age.

British soldiers in a trench.

British soldiers in a trench.

We are a little late to the commemorative party, but World War I started one hundred years ago this month.

First, from your schooldays, John McCrae’s “In Flanders Fields”:

In Flanders fields the poppies blow
Between the crosses, row on row,
    That mark our place; and in the sky
    The larks, still bravely singing, fly
Scarce heard amid the guns below.

 

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
    Loved and were loved, and now we lie,
        In Flanders fields.

 

Take up our quarrel with the foe:
To you from failing hands we throw
    The torch; be yours to hold it high.
    If ye break faith with us who die
We shall not sleep, though poppies grow
        In Flanders fields.
John McCrae  lived from 1872 to 1918.  He died from pneumonia and is buried in France.
Isaac Rosenberg  (1890-1918)

Isaac Rosenberg (1890-1918)

 

I was less familiar with Isaac Rosenberg‘s “August 1914″:

What in our lives is burnt
In the fire of this?
The heart’s dear granary?
The much we shall miss?
Three lives hath one life—
Iron, honey, gold.
The gold, the honey gone—
Left is the hard and cold.
Iron are our lives
Molten right through our youth.
A burnt space through ripe fields,
A fair mouth’s broken tooth.
Alexandr Solzhenitsyn and The Red Wheel

Alexandr Solzhenitsyn and The Red Wheel

 

As a young man, I was much taken with Russian dissident Alexandr Solzhenitsyn, not least his novel August 1914. Here is the New York Times book review  from 1972:

Barred by the government from doing research in archives and libraries, expelled from the Writers’ Union, deprived of all income from abroad, constantly harassed by the authorities, repeatedly vilified and slandered in the Soviet press and at party indoctrination meetings (which try to discredit him with his countrymen by spreading rumors that he is a nobleman, a Jew and a German agent), Solzhenitsyn continues writing under conditions that would drive most of us to madness or suicide. Very few living writers can match his artistic achievement; in human and moral stature he is in a class by himself on the literary landscape of our age.
That verdict remains unchanged.  We would do better to heed him more often, here in the 21st century.  His commencement address at Harvard on June 8, 1978, caused a sensation:

If (like me) you can’t understand Russian, here is a translation.  In part:

Western society has given itself the organization best suited to its purposes based, I would say, one the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in interpreting and manipulating law. Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required. Nobody will mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk. It would sound simply absurd. One almost never sees voluntary self-restraint. Everybody operates at the extreme limit of those legal frames.

I have spent all my life under a Communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale than the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses. And it will be simply impossible to stand through the trials of this threatening century with only the support of a legalistic structure.

In today’s Western society the inequality has been revealed [in] freedom for good deeds and freedom for evil deeds. A statesman who wants to achieve something important and highly constructive for his country has to move cautiously and even timidly. There are thousands of hasty and irresponsible critics around him; parliament and the press keep rebuffing him. As he moves ahead, he has to prove that each single step of his is well-founded and absolutely flawless. Actually, an outstanding and particularly gifted person who has unusual and unexpected initiatives in mind hardly gets a chance to assert himself. From the very beginning, dozens of traps will be set out for him. Thus, mediocrity triumphs with the excuse of restrictions imposed by democracy.

Finally, just because we can, here’s Marvin Gaye and “Ain’t That Peculiar”:


Lauren Bacall and The Big Sleep: Noir Film, White Collar, Cocktail

Lauren Bacall

Lauren Bacall

The recent outpouring of remembrances of and praise for the late comedian and actor Robin Williams is understandable and commendable, but the deluge seems to have somewhat submerged most thoughtful notice of the passing of Lauren Bacall this week.  This is a shame.

To the extent that it reflected crime, Bacall’s work was noir, not white-collar; black, not white; guns, not accounting fraud.  Yet, there was an elegance and a fierceness about her films – especially those with Humphrey Bogart – that are familiar to those who work in a white-collar crime landscape.

David Brooks, writing in the New York Times, reflects on The Bacall Standard.  In particular:

[Raymond] Chandler was not particularly kind to women, though. It was up to the director Howard Hawks and his star, Lauren Bacall — who died this week — to give that era a counterpart female ideal, a hero both tough and tender, urbane and fast-talking, but also vulnerable and amusing.

Vivian Rutledge, the lead female character in the movie version of Chandler’s “The Big Sleep,” is stuck in a classic film noir world. Every situation is confusing, shadowed and ambiguous. Every person is dappled with virtue and vice. Society rewards the wrong things, so the ruthless often get rich while the innocent get it in the neck.

The lead character, played by Bacall, emerges from an ambiguous past, but rises aristocratically above it. She has her foibles; she’s manipulative and spoiled. But she’s strong. She seems physically towering, with broad shoulders and a rich, mature voice that is astounding, given that Bacall was all of 20 years old when she made the picture.

We’ve written about Chandler before: Browning (The Poet, Not The Automatic).  Speaking of Chandler’s dialogue in The Big Sleep (both the book and the film), Brooks notes:

The heiress greets Marlowe with a put-down: “So you’re a private detective. I didn’t know they existed, except in books, or else they were greasy little men snooping around hotel corridors.”

But he’s self-sufficient enough to stand up to her. He wins her over with a series of small rejections. And he can match her verbal pyrotechnics. When she says she doesn’t like his manners, he comes straight back at her: “I’m not crazy about yours. … I don’t mind if you don’t like my manners. I don’t like them myself. They’re pretty bad. I grieve over them long winter evenings.”


Here is a detailed Becall piece from The Rap Sheet, an excellent crime-fiction blog.  An excerpt:

A former theater usher and fashion model, Bacall first came to prominence in 1944, when, at age 19, she starred with 44-year-old Humphrey Bogart in To Have and Have Not, a film based loosely on Ernest Hemingway’s 1937 novel of the same name. Her famous double entendre-laced line, delivered to a smoking, reclining Bogie–“You know how to whistle, don’t you, Steve? You just put your lips together and … blow”–knocked out movie-going audiences everywhere, and had no less impact on Bogart himself. At the time he was already on his third marriage, to actress Mayo Methot, but he divorced her the next year to wed Bacall, or “Baby” as he called her. The pair were together only until his death in 1957, but if Bogie’s ghost is still anywhere around today, he’s whistling for her to join him today.

Ghosts.  Noir fiction and films worked on many levels, not least the theological (as we discussed in Red Harvest: Crime Fiction and Gospel Conviction).   And, at their best, they are art, as Chandler wrote in The Simple Art of Murder:

In everything that can be called art there is a quality of redemption. It may be pure tragedy, if it is high tragedy, and it may be pity and irony, and it may be the raucous laughter of the strong man. But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective in this kind of story must be such a man. He is the hero, he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor, by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world. I do not care much about his private life; he is neither a eunuch nor a satyr; I think he might seduce a duchess and I am quite sure he would not spoil a virgin; if he is a man of honor in one thing, he is that in all things. He is a relatively poor man, or he would not be a detective at all. He is a common man or he could not go among common people. He has a sense of character, or he would not know his job. He will take no man’s money dishonestly and no man’s insolence without a due and dispassionate revenge. He is a lonely man and his pride is that you will treat him as a proud man or be very sorry you ever saw him. He talks as the man of his age talks, that is, with rude wit, a lively sense of the grotesque, a disgust for sham, and a contempt for pettiness. The story is his adventure in search of a hidden truth, and it would be no adventure if it did not happen to a man fit for adventure. He has a range of awareness that startles you, but it belongs to him by right, because it belongs to the world he lives in.

David Brooks gets the next-to-last word:

The feminine ideal in “The Big Sleep” is, of course, dated now. But what’s lasting is a way of being in a time of disillusion. At a cynical moment when many had come to distrust institutions, and when the world seemed incoherent, Bacall and Bogart created a non-self-righteous way to care about virtue. Their characters weren’t prissy or snobbish in the slightest. They were redeemed by their own honor code, which they kept up, cocktail after cocktail.

 

Speaking of cocktails.

Speaking of cocktails.

In the scene from The Big Sleep with the bookshop girl (played by Sonia Darrin), Bogart mentions that he has a bottle of rye in his pocket:

For some background on rye, an article from The AtlanticHow Rye Came Back.

In Bacall’s memory, here’s a recipe for a rye Manhattan.  Have one tonight.

Noir or white-collar, it's the rye Manhattan.

Noir or white-collar, it’s the rye Manhattan.



Would You Buy A Subpoena Response From This Man?

Preparing for a FIRREA subpoena.

Preparing for a FIRREA subpoena.

Always pay attention when the Department of Justice becomes enthusiastic about a long-neglected statute.  (The federal False Claims Act was dormant for almost a century).  Here is a sound, short article by Professor Peter J. Henning of Wayne State University Law School on a “new toy” for the Government: U.S. Finds Fresh Use for Seldom-Used Statute in Subprime Cases.  In discussing the Financial Institutions Reform, Recovery, and Enforcement Act (or “FIRREA”), the federal law enacted in response to the savings-and-loan crisis, Professor Henning notes:

Firrea is not just a penalty provision, however, because it also authorizes the Justice Department to pursue civil investigations into potential violations. Rather than just using it as a backstop when evidence might be insufficient to support criminal charges, the subpoenas to G.M. Financial and Santander Consumer indicate that the government is using Firrea as a new means to police the financial markets.

Crimes are typically investigated by a grand jury, which can compel the production of evidence and testimony from witnesses. The civil investigatory power is nearly as broad, with the Justice Department authorized to issue subpoenas to “summon witnesses and require the production of any books” or other evidence from any place in the United States. Unlike a grand jury investigation, in which federal prosecutors generally do not call a subject to testify, a civil inquiry can include requiring someone involved in possible misconduct to appear for questioning. A witness can invoke the Fifth Amendment right against self-incrimination in response to questions, but that can be considered as evidence if a civil case is filed and goes to trial.

Just because the Justice Department issues subpoenas as part of a civil investigation does not necessarily preclude a parallel criminal investigation. Any evidence gathered pursuant to Firrea can be shared with criminal prosecutors, unlike the secrecy rule imposed on any material presented to a grand jury. There is a rule of thumb in white-collar cases that if there is any possibility a case could go criminal, defense counsel should assume that it will and protect the client accordingly. So a Firrea investigation can be fraught with danger.

Indeed.  At a minimum, the receipt of a FIRREA subpoena should be treated just as seriously as the receipt of a grand jury subpoena — and maybe more so.


Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education

It's the new campus thing.

It’s the new campus thing.

Title IX. Crime. Sexual assault. University disciplinary procedures. Civil litigation. Enormous amounts of money. The Fifth Amendment.

And that’s all before you hire a lawyer.

This is a perilous time for university disciplinary systems and those who administer them, especially with regard to claims of sexual assault.  A college or university can find itself in the midst of – indeed, at the helm of – a set of quasi-criminal parallel proceedings that can make the school liable to student complainants, student respondents and federal enforcement authorities.

How does this happen, and what are the factors to keep in mind to minimize that exposure?

Disciplinary systems and educational missions have been uncomfortable fellow travelers going back at least to Tom Brown’s Schooldays:

As the concept of in loco parentis came in and out and back into fashion, the nature of university disciplinary systems changed accordingly.

What remained unchanged, however, are the two broad areas that most collegiate disciplinary systems address:  ”conduct” and “ethics” (or sometimes “honor”).  The latter involves cheating, plagiarism and the like.   The former involves infractions of nonacademic policies – drinking, destruction of property, and violations of civil or criminal law.

Not so many pranks today.

Not so many pranks today.

Not surprisingly, most universities have proven themselves more adept at dealing with “academic” infractions then with “conduct” issues.  With the advent of coeducation and then a more culturally diverse (and potentially more fractious) student, faculty and staff composition, the proficiency gap between academic-related discipline and conduct-related discipline, in many instances, grew more pronounced.

Back in 2011, the federal Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter on the subject of campus sexual assault and how, under Title IX, OCR expects colleges and universities to handle claims of sexual assault. More recently, a White House summit on campus sexual assault; a number of high-profile lawsuits and OCR investigations; and new congressional legislative interest have all conspired to mean that colleges and universities ignore the “Dear Colleague” situation to their peril.

So, my Lightfoot law partner William King (who runs our NCAA practice); summer associate Caitlin Looney; and I (the white-collar guy) prepared a memo.  (Truthfully, Caitlin wrote it.  All we did was read it and change the date):

On Wednesday, July 30, 2014, a bipartisan group of eight senators introduced legislation aimed at curbing on-campus rape. “The Campus Safety and Accountability Act” would require colleges to assign campus “Confidential Advisors” to act as a resource to victims of sexual assault. The Act would also require a uniform process for disciplinary proceedings and require colleges to coordinate investigations with law enforcement. Penalties for noncompliance could include up to 1% of their total operating budget and a $150,000 fine per violation. The Act would also include annual surveys of students, the results of which would be posted online for the benefit of parents and prospective students. The proposed Act represents the latest development in a flurry of governmental involvement in recent years on issue of sexual assault in schools.

Here is the entire paper: University Disciplinary Procedures and the Dear Colleague Letter on Sexual Assault.

The Senate solution.

The Senate solution.

The Campus Safety and Accountability Act, the bill proposed in the Senate, relies in part on a Scarlet Letter approach driven by disclosure of sexual assault (as self-reported by students, rather than administrators or law enforcement), and hefty fines for non-disclosure.  As reported by the New York Times:

Every college would be required to participate in the survey and publish results online, and the penalty for colleges that don’t report sexual assault crimes, as required by the Clery Act, would increase to $150,000 from $35,000 per violation.

The new bill proposes fines of up to 1 percent of a college’s operating budget. If Harvard were found responsible, for example, the university would be on the line for $42 million — a sizable fine, but one that would probably not hurt the university’s students. [Harvard's trustees might differ, but that is another issue. - Ed.]

Colleges would be required to supply confidential advisers to victims and train counselors. Athletic departments would not be allowed to handle sexual assault complaints. Colleges would need to coordinate a uniform plan with local law enforcement agencies. And the bill would provide federal funding to create and distribute an inexpensive, anonymous annual survey that asks all undergraduate students about experiences with sexual violence. Parents and students would be able to see the data, which may influence their decisions when applying to college.

Whether deserved or not in any particular circumstance, college athletic departments are a particular focus, as noted here.

Awaiting the parallel proceedings.

Awaiting the parallel proceedings.

Unlike the disciplinary process for a cheating scandal, a university’s investigation, adjudication and resolution of a sexual assault case is a classic parallel-proceedings scenario.  At any moment there may be simultaneously ongoing (1) an administrative proceeding (run by the university); (2) a criminal investigation (run by external law enforcement, sometimes in concert with internal university security and sometimes not); and (3) potential civil lawsuits by either the accuser or the respondent.

Even in the “normal” scenario, parallel proceedings raise thorny issues. In the university disciplinary context, however, they raise at least two special issues, issues often troubling and sometimes disastrous.

First, there is a fourth parallel overlay – the Department of Education’s OCR – that is not present in the usual parallel proceedings situation. The threatened loss of Title IX funds is a near-nuclear scenario for many institutions. (The closest but still imperfect parallel in the business world would be a federal indictment of a company).  A Title IX investigation is unpleasant but survivable. The actual loss of Title IX funding may not be.

Second, the due process and Fifth Amendment implications for the student respondent/defendant are exacerbated in ways that are foreign to customary practice and procedure.

Why is this so?

Put yourself in the chair of a defense lawyer whose new client is a student.  A complaint has been launched in the university disciplinary system against your client, alleging rape or other serious sexual assault.  Consistent with the “Dear Colleague” letter, the university process unfolds swiftly, and your client will soon be offered an opportunity to “tell his side of the story” to a panel of university administrators and faculty.  The local police investigators have requested an interview of your client. You have received an email from a lawyer representing the alleged victim who demands that your client preserve all electronic information on his phone such as photos and texts.

Just a few questions.

Just a few questions.

At this stage, the defense lawyer may not know much, but she or he knows two things.

First, the lawyer knows that the client is not talking to anybody until counsel is quite certain of the legal landscape generally and, in particular, the client’s status in the criminal investigation.

Second, the lawyer may try a “real world” fix: for Fifth Amendment reasons, stay the civil proceedings pending resolution of the criminal investigation and potential prosecution.  Taking the “Dear Colleague” letter at face value, however, and given the prevailing sentiment in this area, a Title IX-compliant university will not be staying much of anything. Although a very short pause in the disciplinary proceedings – on the order of days – is clearly permissible for law enforcement to conduct basic investigative tasks, the kind of stays we in the external world — months and months — is unlikely.  Or, as OCR says:

Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school’s internal Title IX investigation. For instance, if a complainant wants to file a police report, the school should not tell the complainant that it is working toward a solution and instruct, or ask, the complainant to wait to file the report.

Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting. For example, a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime. Any agreement or Memorandum of Understanding (MOU) with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation.

Thus, the respondent/defendant is in a crucible.  Does he fight the charge in the university’s disciplinary proceeding, or decline to participate in the proceeding so as to avoid statements that the government could use, fairly or unfairly, in a criminal prosecution?

Each situation is different, but rock breaks scissors, and prison trumps college.  The respondent/defendant may sue the university on due process grounds, as a Duke student recently did with success, but that is a temporary solution:

Some students who have been expelled or suspended pursuant to a university policy on sexual assault are suing those schools, claiming their rights to a fair hearing were violated. Schools currently involved in litigation with students under these circumstances include: Vassar College, the University of Michigan, Duke University, Occidental College, Columbia University, Xavier University, Swarthmore College, and Delaware State University, among others. Most of these claims have centered on the argument that the hearing processes under new, more stringent standards are unfair. Some of the accused have claimed that the discipline system is now skewed against them because of their male gender and should likewise be considered a violation of Title IX. The likely success of these lawsuits for the accused remains undetermined, but there has been at least one instance in which a judge intervened to keep a school from expelling a student using its internal procedure.

On May 29, 2014, a judge in North Carolina put the expulsion of a Duke University student on hold. Duke determined the student, Lewis McLeod, had committed a sexual assault and should be expelled before spring finals during his senior year of college.Judge W. Osmond Smith III ruled that McLeod would likely suffer irreparable harm if expelled. His ruling blocked Duke from expelling McLeod pending a final determination on the merits.

OCR is not a party to these lawsuits, but the “Dear Colleague” letter makes its position clear, were it required to take one:

Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.

Quite a burden.

Quite a burden.

With regard to due process (and evidence presented in the process), another vexing issue for universities is the question of the appropriate “burden of proof” to apply in campus sexual-assault cases.  Historically, most schools seemed to use a standard that was lower than the “beyond a reasonable doubt” requirement that criminal prosecutors must meet but something greater than the “preponderance of the evidence” standard customary in civil lawsuits.  It is unclear (at least to me) what the complete constitutional and evidentiary consequences are of making findings that are both civil and criminal using only a civil standard.

It is not unclear to OCR, however:

[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

OCR roots this principle not in Title IX but in the caselaw developed in civil race-discrimination cases under Title VII of the Civil Rights Act of 1964.  The statutory foundations of this approach merit further thought, but it is noteworthy that while sexual assault and racial discrimination are both odious and unlawful, only the former is a crime (except for instances of federal deprivation-of-civil-rights situations).

The Crimson offense (or defense?)

The Crimson offense (or defense?)

In any event, the shift to the preponderance-of-the-evidence standard is occurring rapidly, as at Harvard:

The new policy, unveiled Wednesday, dramatically changes how cases of sexual assault are handled at Harvard. The new Office of Sexual and Gender Based Dispute Resolution will employ professional investigators and essentially remove investigative responsibility from individual disciplinary boards across schools. Based on the facts provided by the central office, those disciplinary boards will work with University Title IX Officer Mia Karvonides to issue sanctions.

The “preponderance of the evidence” standard that the office will employ is seen by many as a lower burden of proof than the “sufficiently persuaded” standard currently used by the College’s Administrative Board. The preponderance of the evidence standard, favored by the U.S. Department of Education’s Office for Civil Rights, is generally understood to require more than 50 percent certainty to determine guilt.

Absent from the new policy is an affirmative consent requirement, under which partners must affirmatively communicate their willingness to participate in sexual activity. Activists on Harvard’s campus, such as those involved with the group Our Harvard Can Do Better, and across the country have lobbied for such a clause.

(The Crimson article attaches a copy of the new Harvard policy).

Damn committee reports.

Damn committee reports.

So, what are the takeaways for university administrators and others charged with development an oversight of university disciplinary systems, especially with regard to claims of sexual assault?

OCR-ready.

OCR-ready.

Bulk up on the skill.  You cannot delegate away “Dear Colleague” responsibility; nor can you simply add it as another part of the job description in Legal or Compliance; nor can you have your “Dear Colleague” program run by someone who is not sensitive to the legal, administrative and — bluntly — political issues that swirl around this effort.

Cut down on the windowdressing.  Some companies have magnificent paper compliance programs and codes of business ethics, policies that set lofty standards which, if not undergirded by the actual work, only make the situation worse in the midst of a compliance failure or white-collar criminal investigation.  (This is the “don’t write a check your body can’t cash” problem).  The university setting is no different.  Plus, colleges are thick with committees, panels, town halls, manifestos and missions.  Don’t write a policy without thinking through the process, and how defensible it is.  And do not confuse compliance with ethics.

Focus on high-visibility groups. Athletic teams and fraternities, fairly or unfairly, bear the brunt of criticism for undesirable campus conduct.  On the other hand, those groups are important to university life; have strong alumni support; are in many cases revenue generators (in the case of the athletic department, at least); and can be on–campus bellwethers.  Whatever your policy direction and compliance program, if you have these constituencies with you, the job will be much easier.

How to get sued.

How to get sued.

Don’t Nifong respondents.  We mentioned the Duke lawsuit above.  A prime example of how not to handle university disciplinary procedures was Duke’s process, actions and inactions during the false rape claims lodged against several of its lacrosse players against the backdrop of the misconduct of the now-disbarred criminal prosecutor, Mike Nifong.  (We have written about the Duke lacrosse case here. The definitive work on the case remains Taylor and Johnson’s Until Proven Innocent).

A university’s best defense in the “Dear Colleague” era is a combination of sound preparation; an honest approach in plain English; and a firm devotion to the integrity of process for the benefit of its students without regard to externalities (an unethical and unfit prosecutor, for example) or internal pressures (such as small groups of virulent ideologues).

 

 

 



Representing Witnesses Before The Grand Jury

And you ain't authorized.

And you ain’t authorized.

For businesses and their officers, directors and employees, the grand jury is an increasingly visible complement to the threat of civil litigation and administrative sanction.  (We have discussed the grand jury’s role and power here and here).

Under the auspices of the Alabama State Bar’s White-Collar Crime Committee, Lightfoot hosted a one-hour CLE video on Representing Witnesses Before The Grand Jury.

Representing Witnesses Before the Grand Jury from LFW on Vimeo.

This program offers practical advice for representing witnesses subpoenaed to testify before the grand jury or provide documents. Listen to insights into the decision to testify (or not), preparing your client to provide testimony, securing immunity and special considerations in representing the immunized witness.

Monopoly

Reasonable doubt at a reasonable price.

Hosted by Lightfoot white-collar lawyers Jack Sharman, Tenley Armstrong  and Jeff Doss, the panelists are Richard Jaffe (Jaffe & Drennan, P.C.), David McKnight (Baxley, Dillard, McKnight & James) and Melissa Atwood (U.S. Attorney’s Office, Northern District of Alabama).  (The panelists’ opinions are their own and may or may not reflect the opinions of their firms, their clients or, in Ms. Atwood’s case, the Department of Justice).


Okay, So It’s A Lurid Book Cover: Summer Weekend Cocktails, Dylan Thomas on YouTube, Good Writing and Great Music

Our notes for Friday, beginning with cocktails; moving through literature; ending with music.

The young bikini-and-martini set, thankfully.

The young bikini-and-martini set, thankfully.

Brown Whisky Is Not Just For Winter.  From the New York Times, some summer drinks using brown booze.

And Old-Fashioneds Aren’t Always Dark.  From Gastronomista, a tequila old-fashioned that actually sounds good.

Go Scandinavian.  As long as we’re discussing traditional cocktails with non-traditional spirits, I might try an aquavit Manhattan (if I can find some aquavit) (from Saveur.com).

Movie Booze.  For movie buffs, from Liquor.com, a list of The 6 Most Influential Drink Orders of All Time.

There’s Always Time For Good Writing.  Some superior prose passages from “After Deadline.”

Considering the aquavit Manhattan.

Considering the aquavit Manhattan.

Welsh Poetry Is Good For You.  From the poet Dylan Thomas (1914-1953), When All My Five and Country Senses See.  I couldn’t it on YouTube, so you will have to content yourself with Do Not Go Gentle Into That Good Night.  It is sometimes challenging to follow what Thomas means, but there is no doubt as to what he says.

St. Paul and The Broken Bones.  If you haven’t heard this Birmingham-based band’s classic-soul, horn-driven sound, you’ve been missing out.  Try “Call Me.”

St. Paul and The Broken Bones

St. Paul and The Broken Bones