How To Avoid Being GM’ed: The Wrongs and Rights of Clients and Lawyers

A general malaise?

A general malaise?

The GM internal-investigation report  about ignition-switch problems raises a host of issues, one of which is its unusually sharp criticism of GM internal lawyers.  Criticism of lawyers is nothing new, of course.  Lawyer-jokes always blame lawyers; lawyers’ spouses frequently blame lawyers; clients sometimes blame lawyers.

But public reports drafted by lawyers infrequently blame lawyers, so this one merits attention, most especially by internal lawyers in large organizations; by the outside counsel who serve them; and by the businesspeople who are the true clients.

 

What are the key takeaways?

The Normal, Uneasy.   Skim the report.  (Just skim it — it’s too long to read cover to cover without heroin.  If you have heroin, you have other issues besides ignition recalls and attorney ethics).  On a practical, professional level, what’s your reaction?

One reaction is, Not much.  It is remarkable how normal the actions of GM’s outside counsel and internal lawyers seem, and how characteristic of the operation of large organizations that are at once diffuse, sprawling and “siloed” (to use the term du jour).  Anybody who works in or serves a large organization will recognize the course of events, the mis-allocation (or absence) of resources, the personal dynamics and the outcomes described the GM report.  Despite expressions of editorial shock and Congressional indignation, the lawyer-narrative laid out in the GM report is, in many important ways, more normal than aberrant.

 

Advising on this quarter's numbers.

Advising on this quarter’s numbers.

The Uneasy Normal, Uneasier.  Prepare for a change in the public perception — and, perhaps, in regulation — of commonplace concepts of attorney-client privilege and the general confidentiality of lawyers’ work.  Prepare also for a coordinate change in internal-lawyers’ reporting obligations within the corporation.  Perceptions of  lawyers are mixed, and we should generalize with caution, but jury consultants regularly note the suspicion and distrust with which lawyers are viewed —  especially lawyers for big companies.  Elsewhere, we have explained how laypeople see corporate counsel as mob lawyers.

 

 

Preparing for summer hearings.

Preparing for summer hearings.

Summertime, and the Congressional Livin’ Is Easy.  Congress is composed of laypersons who are political animals and who are no great respecters of privilege and confidentiality.  As a former oversight-and-investigations lawyer for a House committee, I can testify: summer is the high season for O&I hearings.  Nothing is going on legislatively, O&I hearings don’t require lobbyists or constituents, it is hot as hell but most House and Senate hearing rooms have good air-conditioning these days and, if you get some hearings under your belt in June and July, you’ll have plenty as a Member to talk about in your district or state.

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.

[Full disclosure moment: My law firm does a lot of products-liability work, all of it on the defense side (that is, on behalf of the people who make the products that allegedly cause the complained-of injury).  We are not involved in the matters described in the report, but we have in the past represented and continue today to represent automotive manufacturers.  I do little products work; the primary way I judge a car is by its air-conditioning.  Nevertheless, consider my biases as you read].

 

Doubts about who the client is?

Doubts about who the client is?

A change in the way we view lawyers and their roles.  We may be faced with an evolving re-definition of that law school chestnut: Who is the client?  Is the client now the Government?  This is a critical threshold question. In the narrative laid out in the GM report, the “client” of the internal lawyers and of the outside counsel is not the government, or a government agency or a regulator.  The client is not the buyer of a GM car or the passenger in a GM car.  The client is not a Member of Congress, an editorial writer or a blogger.  The lawyer — at least while she or he is acting as counsel — owes a duty only to the client, a client which, in this situation, is a non-natural person called a “corporation.”

Professor Peter Henning is generally right on the money with regard to white-collar matters, but he jumps the gun when he so quickly blames lawyers in this kind of situation:

 

In the aftermath of the savings and loan scandal, Judge Stanley Sporkin asked how a once-prominent financial institution could engage in a pattern of misconduct. “Where were the professionals when these clearly improper transactions were being consummated?” he asked.

For General Motors, the negligence and incompetence that resulted in at least 13 deaths and multiple injuries from a faulty ignition switch is equally troubling. Numerous lawyers were on the scene, but none took responsibility for making sure their client did not continue to keep defective cars on the road.

Most people, when they pay for a lawyer, want that lawyer to be their lawyer and not someone else’s.  Indeed, that concept of loyalty is a foundation of the conflict-of-interest rules (rules, by the way, far more demanding than what is considered normal in the marketplace).  Under current law and rules, and with few exceptions, lawyers internal and external have neither a duty nor a warrant to serve multiple masters simultaneously.  The most relevant provision is Rule 1.13  (“Organization As Client”) of the ABA Model Rules of Professional Conduct, which are restrictive about what a lawyer representing an organization may and may not reveal.

Even the “reporting up” obligations, which are limited, are focused on the client:

If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

This question is distinct, of course, from what is wise, merciful or sane from a business or spiritual standpoint, and one could make an argument that losing track of the ignition problem was “likely to result in substantial injury to the organization.”  But if the question is, Where were the lawyers?, the answer is, They were right there.

 

A file too far.

A file too far.

A Forest-and-Trees Cliche.  In future litigation, if wholesale problems still get lost in the retail landscape, they will imperil your job.  If the GM report is accurate, there was never a genuine “visibility” problem about the ignition switch.  “Visibility” was not the problem.  “Irritability” was the problem.  Lawyers tend to deal with the irritant at hand; they put out the fire first that is closest and hottest.  They are trained to do so — first in law school, by “spotting issues” instead of looking at a scenario as a whole, and then in private practice, with the demarcation of work into mostly fenced-off fields (called “cases”) and of compensation into fractions of time (called “tenths of an hour”).  In addition, for internal lawyers, a combination of too many demands, insufficient resources and a corporate focus on the monthly or the quarterly has the same grinding effect.  An in-house friend, a accomplished lawyer at a large corporation with a good reputation, says that her only criticism of her job is that she never — ever — has time to actually think.

So what, as a practical matter, can we do — internal lawyers, outside counsel and businesspeople?

Grow Real Ethics.  There is no substitute for actual ethics, opposed to consultant-thick compliance programs and ever-muddied regulation.  We have written on the compliance versus ethics problem before.

Senior Citizens Unite.  Older lawyers – internally and externally — have to speak up.  Young lawyers lack professional and financial traction, as noted in at least one instance in the GM report.

 

Team A v. Team B

Team A v. Team B

Be A Spook.  When faced with “serial” litigation, try the CIA Team B approach of pitting two teams — one internal, one external – against each other on the same topic or issue.  (Outside law firms are useful for this exercise, if there is money in the budget).  As a way of addressing the Soviet strategic threat, Team B has had many critics, but alternative, competitive thought is always worth considering (and is always more expensive).

Misery Loves Company.  Outside lawyers are proficient at CYA.  Consider ways to put your outside law firms more firmly on the ethical hook.

 * * * *

Without the right budget and the right approach, none of this may matter, but give it some thought.  By itself, the fact that we all believe that we are serving our clients won’t keep us from getting “GM’ed.”


The Super Bowl, Jamie Casino and the Rights and Wrongs of White-Collar Defense

Contemplating the transition from the criminal-defense bar to the plaintiffs' bar.

Contemplating the transition from the criminal-defense bar to the plaintiffs’ bar.

As a football game, the Super Bowl was dreadful, at least in terms of entertainment value.  As a cultural petri dish, its television advertisements (and the reactions to the advertisements) were invaluable.  And the most mind-blowing bacillus in the dish, by consensus, had to be the commercial by Savannah plaintiffs’ lawyer Jamie Casino.  In the midst of the spot’s pageantry, if that is the word, most seemed to have missed a significant issue that Mr. Casino, inadvertently, raises for businesses and those white-collar or compliance lawyers who help them.

 

The more conventional approach.

The more conventional approach.

First, let’s take Mr. Casino at his word: he is a plaintiffs’ personal-injury lawyer with a predeliction for over-the-top advertisements, the kind on ones on local daytime television.

 

They told me this place was "perpetual care."

They told me this place was “perpetual care.”

Second, he tells a story in his Super Bowl ad.  What’s the story?  He was, he says, a “notorious criminal defense attorney.”  This work apparently brought him wads of cash and continued until his brother was killed (by notorious criminals).  He then decides to devote himself to helping the innocent and injured, rather than protecting the guilty and the criminal.

And there are some great scenes where he smashes his brother’s gravestone and then drags the sledgehammer (emblazoned with his brother’s name) along the ground, the furrow made then bursting into flame.  And, all to the tune of an old AC/DC song performed by Godsmack (according to the Esquire article).

One would applaud Mr. Casino for his creativity and then consign his video to the digital netherworld, but for the Manichaean dichotomies he sets up for us about “innocence” and “guilt.”

These issues are often fodder for lawyers’ family dinner-discussions; law school exams on ethics; and thrillers featuring lawyers (for example, Michael Connelly’s “Lincoln Lawyer,” L.A. criminal defense attorney Mickey Haller).

The Gods of Guilt (2013)

The Gods of Guilt (2013)

Haller is constantly conflicted about his role as a lawyer who defends unsavory people, as we see here in the Gods of Guilt trailer.

At the cocktail party or the dinner table, the question usually takes the form of “How can you defend someone who’s guilty?”

(“Because they pay” is not a suitable answer).

Strikingly, the question is often posed by corporate executives, officers, directors or employees who understandably see the world as one in which there are “good” non-criminal persons (including themselves, their loved ones, their golfing and hunting friends) and there are “bad” criminal persons (a group that excludes themselves, their loved ones and at least most of their golfing and hunting friends).  The situation is striking because those corporate exemplars are the very people whom men and women who can pull on the levers of power — Mr. Casino and his colleagues at the plaintiffs’ bar, for example, as well as Assistant United States Attorneys, FBI agents and federal regulators — will be first to label as “bad”; as criminal; as deeply suspect.

Thus, the dramatic flair of Mr. Casino’s commercial, a flair that disguises the dramatic ease with which one shifts from a mindset of “Everyone I represent is guilty” to “Everyone I represent is innocent.”

Here is why the seamlessness of Mr. Casino’s transition from “notorious” criminal-defense lawyer to “noted” plaintiffs’ personal-injury lawyer is relevant to how we think about white-collar criminal defense; compliance; and business ethics.

The nuclear option.

The nuclear option.

Consider two civil personal-injury cases.  In the first, we see a claim for a crushed leg arising from an accident involving a forklift.  In the second, we have a claim by the neighbors of an industrial facility for miscelleanous illnesses caused, they say, by air pollution from the plant.  Call them the “Leg” and “Pollution” cases.

Smokin' good-looking.

Smokin’ good-looking.

Then, consider two criminal cases.  The first involves the operation of a meth lab. 

Damned if I'll leave a tip for housekeeping.

Damned if I’ll leave a tip for housekeeping.

The second involves payment of money to third parties, payments which the prosecution characterizes as illegal “kickbacks” and the corporate defendant characterizes as unlawful “commissions.”  Call them the “Lab” and “Payment” cases.

And how did the Vietnamese dong do today?

And how did the Vietnamese dong do today?

 

 

 

 

Setting aside differences in the identities of the respective prosecuting parties (private versus sovereign) and differences in the burden of proof (preponderance-of-the-evidence versus beyond-a-reasonable-doubt), which cases are most alike?  Which “feel” the same?

Lawyers being lawyers, there are doubtless many idiosyncratic answers, but the consensus answer should be “Leg” and “Lab” are alike, and “Pollution” and “Payment” are alike.  In “Leg/Lab,” there will be little or no dispute that an undesirable harm (leg crushed) or prohibited act (meth lab operated) has occurred.  The defendant in each case may have factual or legal defenses to liability or guilt, and the jury must weigh the sufficiency of the evidence, but no one in the courtroom will argue that a crushed leg is a not a harm, or that a meth lab is lawful.  The leg is destroyed; there is no lawful purpose for a meth lab.  An injury occurred; a crime took place.

In “Pollution/Payment,” in contrast, there is a preliminary — and murkier — question to ask:  Has a harm or a crime occurred at all?  In “Pollution,” the defendant will concede that its operations caused emissions into the air.  Before offering, however, legal or factual defenses (the plant operated within its air permit; the statute-of-limitations has run; the plaintiff moved out of the neighborhood fifty years ago, or into it last month, etc.), the defendant will argue that there is no “general causation” — that even if the emissions of the plant are as the plaintiffs say, and even if their illnesses are as the plaintiffs say, those emissions cannot as a matter of medicine and science cause those illnesses.  Thus, no harm (or at least, no compensable harm).  In “Payment,” the defendant will concede, as the Government alleges, that a check was issued and a payment made, but will argue that there is no evidence of wrongful intent.   Thus, no crime.

It is easier for Mr. Casino — and for all of us — to move from the undisputed criminality of street crime to the undisputed harm of a product-liability or workplace-injury case.  (See Mr. Casino’s certainty of the guilt of his former clients and the innocence of his current ones.  Zealous advocacy is commendable, but individuals, not classes, are eventually determined guilty or innocent).  Lawyers, judges, juries, media, spectators — we all enjoy it when things are obvious and sure, a certitude that is as much emotional, even theological, as anything else.  In a white-collar case, internal investigation or compliance review, “intent” is the crux.  We cannot avoid the irritating question: “Has a crime occurred at all?”  In the aftermath of undesirable events, or to gain votes, Congress has a bad habit of criminalizing conduct that theretofore was innocent, commonly-accepted behavior in the American economy.  We do the same in our daily lives: How loosely do we use the word “criminal,” even when we should know better?  Conduct may be unethical, unseemly, a too-sharp business practice or a violation of our company policy, but those conclusions are more confounding and less satisfying than a criminal conviction.  Because white-collar offenses are mostly or wholly intent-based, though, “crime in the suite” really is different than “crime in street.”  White-collar crimes can cause great harm and should be prosecuted.  Let us be sure, however, that what we see is a crime, rather than unfortunate conduct and unlikable people distorted by the fun-house mirrors of our own indignation, anger and fear.  


McKinsey, General Lee and the Culture of Compliance

Except perhaps for “paradigm” and “silo,” the word “culture” is one of the most abused in the vocabulary of compliance, ethics and consultants.  (I once heard a consultant say that he needed “a high hover over the silos.”  I thought it an ironic mash-up about drones and agriculture; it was not).  Yet, “culture” has a meaning in the broader world; in commerce; and in compliance.  “Culture” represents a gear-shift in compliance and ethics, and can be smooth or bone-rattling.

McKinsey

McKinsey

Consider this story about  McKinsey’s culture in the wake of insider-trading scandals:

For a quarter of a century, except for a brief stint as a currency analyst at Rothschild, Mr. Barton has worked at McKinsey, the consulting firm with more than 1,400 partners and 18,500 employees around the world. And that is why he is facing the most daunting task of his career: as McKinsey’s global managing director, he is trying to change the culture of the firm that shaped him.

There are two reasons that Mr. Barton is on this mission: Anil Kumar and Rajat K. Gupta. Mr. Kumar was a McKinsey director who, in 2010, pleaded guilty to insider trading charges and publicly acknowledged giving corporate secrets gleaned on the job to Raj Rajaratnam, a founder of the Galleon Group hedge fund, in return for cash. Never in the history of the firm had a partner been charged with violating securities laws.

A year after the Kumar scandal, the Securities and Exchange Commission filed a civil complaint accusing Mr. Gupta, a Goldman Sachs board member and former McKinsey managing director, of telling Mr. Rajaratnam about a $5 billion investment in Goldman by Warren E. Buffett’s Berkshire Hathaway at the height of the financial crisis. Mr. Gupta, a revered former partner who had been elected managing director three times in a row, serving at the helm for a decade, was ultimately convicted of criminal charges of leaking boardroom business. He awaits the outcome of his appeal, even as insider trading charges continue to occupy prosecutors. The trial of Mathew Martoma, a former trader at SAC Capital Advisors, run by Steven A. Cohen, started last week in Manhattan, not long after another SAC trader, Michael S. Steinberg, was convicted of trading on corporate secrets. SAC itself pleaded guilty in November to violating insider trading laws.

So where does that lead Mr. Barton?

At McKinsey, Mr. Barton has been trying to prevent another disgrace: a “third man,” as some have put it. McKinsey is known for what it calls its culture based on values and trust — a culture that was created and nurtured by Marvin Bower, its longtime managing director. The values that Mr. Bower instilled included putting the clients’ interests above the firm’s, providing independent advice and keeping confidences. These ideas were imparted from one generation to the next, mentor to apprentice. But after Mr. Kumar’s arrest in late 2009, Mr. Barton, who had been elected to head the firm just months earlier, decided that the honor-driven, values-based system was not enough. What the firm needed was some rules.

“We needed more safety moats around the castle,” he says. “We have this values/trust culture. I get that. Now we have a little more edge.”

The rest of the article details why some in the firm think this a great idea while others pan it.

Multiple rules in the compliance handbook.

Multiple rules in the compliance handbook.

Given the size and diversity of his organization, I applaud Mr. Barton.  For better or for worse, if there is no more “values/trust culture” to be poured in from the top, then the only reasonable thing to do is add “a little more edge.”  Like edging your lawn: it seems to grow luxuriantly by itself, but you don’t want grass clogging the sidewalk.

On the other hand, rules — especially rules that are applied to thousands or tens of thousands of employees, perhaps in dozens of countries — are blunt instruments.  They hack at the lawn, rather than trim it.  In addition, people sometimes revolt against the governing values, but they always revolt against the governing rules.  Finally, the rules do a much better job of describing how you transgress than how you non-transgress.

The Collonade.

The Colonade at W&L

Consider the example of my alma mater, Washington & Lee University in Lexington, Virginia and the Honor System created by President (formerly General) Lee:

The mid-1800s saw the development of honor systems at many colleges. Lee replaced the elaborate disciplinary rules of Washington College by a single standard: “Every student must be a gentleman.” He intended for the young men under his charge to acquire a sense of responsibility based on truth, honor, and courtesy. Lee also placed a premium on civility and spoke to each student as he passed him on campus, encouraging by his example the same show of respect between students.

Today’s honor system, administered by students, has been a unique feature of Washington and Lee University for well over a century. It is based on the fundamental principle of mutual trust among students, faculty, and staff that students attending Washington and Lee will not lie, cheat, steal, or otherwise act dishonorably. With the rule of civility, exemplified by the W&L “speaking tradition,” Lee’s legacy of honor continues to permeate academic and social life at Washington and Lee University and serves as a model nationwide.

 

An Honor System works well at W&L and poorly at many other universities for several reasons.  Some of those reasons illumine the strengths and weaknesses of many corporate compliance programs.

Robert Edward Lee

Robert Edward Lee

First, as implied above, it is a system, not a code:

Young gentleman, we have no printed rules here.  We have but one rule and that is that every student must be a gentleman.

— Robert E. Lee to student Wallace E. Colyar (1866)

Although there are more rules and regulations today in Lexington than there were formerly, the Honor System coalesces around a concept (‘honor”) rather than dividing between thou shalts and thou shalt nots.  Despite lip-service to soft concepts in compliance programs, most come down to crypto-Scriptural commands.

Second, the Honor System is single-sanction.  There is one penalty — dismissal — without regard to the severity of the offense.  In other words, it does not seek proportional justice.  Most corporate compliance officers who tried a single-sanction system would get fired.

Third, it marries two starchy concepts: “honor” and “duty.”  President Lee cherished the latter as much as the former:

The forbearing use of power does not only form a touchstone, but the manner in which an individual enjoys certain advantages over others is a test of a true gentleman.

The power which the strong have over the weak, the employer over the employed, the educated over the unlettered, the experienced over the confiding, even the clever over the silly–the forbearing or inoffensive use of all this power or authority, or a total abstinence from it when the case admits it, will show the men in a plain light.

The gentleman does not needlessly and unnecessarily remind an offender of a wrong he may have committed against him. He cannot only forgive, he can forget; and he strives for that nobleness of self and mildness of character which impart sufficient strength to let the past be but the past. A true man of honor feels humbled when he cannot help humbling others.

“Duty,” for many employees in highly-diversified, extremely large global organizations is a term roughly co-extensive with “pay.”

Fourth,Washington & Lee is a liberal-arts college, not the org-chart Tower of Babel that many large-company compliance officers must deal with.  Coalescing around a concept (like “honor” or “duty”) rather than submitting to a rule or a checklist is easier when at least a core group is composed of individuals who possess more experiences, taboos, creeds and rituals that unite them than divide them.  (Or, at a minimum, they perceive such to be the case).

Corporate compliance programs cannot readily have the grace of the Washington & Lee Honor System — much as (a biased alumnus says) the corporate officer, director or employee without the benefit of a W&L education cannot readily have the grace of a W&L alum.  Both require work; both produce imperfection.  But, as the effort of McKinsey’s Mr. Barton demonstrates, both are commendable.

 



Weekend: GCs on Boards and Gin in Ice

 Notes For the Weekend:

 

I tend to agree:  No, General Counsels Should Not Be On The Board.  The conflicts can be too great.  GCs sometimes have a hard enough time, as it is, being honest brokers and, as the saying goes, speaking truth to power.

Especially good corruption, bribery and FCPA collection from Corruption Currents  (via@WSJRisk).

 

 

 

 

 

 

 

500 Pearl St. logo

As always, a good summary of white-collar news from @WaltPavlo and 500 Pearl Street.

 

And finally . . .

The best “coffee-table” book I have read on martinis is The Martini: An Illustrated History of an American Classic by Barnaby Conrad III:

A chilled, crystal glass; the purest gin; a touch of dry vermouth–vigorously shaken, not stirred–and a plump, green olive. The martini was and still is more than just a cocktail. Originally mixed in the nineteenth century, it became an American icon in the twentieth, and the favorite drink of such luminaries as Franklin D. Roosevelt, Winston Churchill, Jack London, and Ernest Hemingway. Bernard De Voto called the martini “the supreme American gift to world culture,” while H. L. Mencken declared it “the only American invention as perfect as a sonnet.”

The first book of its kind to explore the drink’s wide appeal, this volume serves up a fabulous cocktail of martini-inspired art, cartoons, collectibles, advertisements, and film stills that reveal how deeply this classic has permeated every aspect of American culture, from literature and film to politics and high society. Complete with bartending lore, traditional martini recipes, literary excerpts, memorable scenes from James Bond movies, and more, The Martini offers a toast to this intoxicating symbol of the American dream.

 

 


Fourth Circuit Rips United States Attorney’s Office For Brady Non-Disclosure

As noted by the White Collar Law Prof blog, here — Fourth Circuit Rebukes United States Attorney’s Office — this criticism of a United States Attorney’s Office for repeated Brady-disclosure problems is unusual.  If nothing else, the Fourth Circuit is generally a law-and-order bench, which lends the criticism greater force.  Here are some highlights:

A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district.

 

Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional.

 

Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices “harmless” as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. “No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). The law of this country promises defendants due process, U.S. Const. amend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3., and fairness to opposing parties, see id. R. 3.4. Yet the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable. Something must be done.

 

To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.

 

 

Brady requires the Government  to disclose to the defendant materially exculpatory evidence in the Government’s possession. For a refresher on the Brady rule, look here:  The Brady Rule