Greetings, The Friday Whine is a casual email to friends and colleagues and contains three things: An ethics update, a legal profession update, and wine recommendation. If you see text in blue or underlined, it is a link to an article or information.
Do We All Know What Obstruction Of Justice Is Yet?
If I am arrested and give a false name, which is placed in to a report, that can be construed as obstruction of justice. Why? 1. I have the intent to affect the investigation, and 2. I have taken an affirmative action to cause law enforcement to do something that affects the investigation.
So why the question about whether the President obstructed justice?
Well, he said this to the nation’s (former) top FBI Agent:
“I hope you can see your way clear to letting this go, to letting Flynn go.” “He is a good guy. I hope you can let this go.”
Is the President’s “hope” enough for obstruction?
Add in the following:
- The President has the power to hire and fire the FBI Director. (Ability to affect the investigation).
- The President asked that the room be cleared (which was cleared of the Vice President and Attorney General). (Evidence of knowledge that he was doing something untoward).
- He repeated himself (seems petty, but it’s a fact to be considered).
- He made clear that his desire was for the FBI to close the investigation against Flynn. (Intent).
The surrounding circumstances make a pretty good case that the President, having the power to hire and fire the FBI Director, made clear to him that he would like the Flynn investigation closed. Did he have to threaten? (something Nixon did). Was he “joking” as one story reported? He never said he would fire the FBI Director if he didn’t comply, but he did fire him.
While it looks like it will be the summer’s entertainment for those watching congressional hearings, I think our President’s lack of government experience, the fact that he’s not a lawyer, and the fact that there is a Republican majority, will likely let him skate on this, but not unblemished.
To me the issue of why the FBI Director was fired will be essential -particularly since Deputy Attorney General Rosenstein now says he knew Comey was being fired before he wrote his memo to the Attorney General recommending termination.
Time To Get Hysterical About Another Worthless ABA Opinion
When the ABA issues an opinion, it appears to put deep fear in lawyers that don’t know the ABA has no authority over the practice of law. No lawyer has ever been disciplined for failing to follow an ABA opinion. Because they can’t.
But let’s look at the latest missive, Formal Opinion 477, which says a lawyer can transmit information relating to the representation of a client over the Internet without violating the Model Rules of Professional Conduct so long as the lawyer takes reasonable efforts to prevent inadvertent or unauthorized access to client information.
(By the way, the Model Rules of Professional Conduct have been adopted in total exactly nowhere.)
The opinion goes on to say that lawyers may also be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.
This opinion talks about using encrypted email and that “electronic communication through certain mobile applications or on message boards or via unsecured networks may lack the basic expectation of privacy afforded to email communications.”
Who the hell doesn’t know that? Communicating with a client on a message board? Who does that?
The opinion goes on to say that “lawyers must therefore, on a case-by-case basis, constantly analyze how they communicate electronically about client matters.”
Meaning what, exactly?
Here’s the bottom line, this opinion is an 11 page pile of crap, the result of what happens when too many big firm lawyers sit around conference tables at ABA meetings.
To protect client communications:
- Make sure the client agrees to the method of communication.
- Label all attorney client privileged communications as such.
- In today’s world, the most secure conversation is yesterday’s most unsecure conversation – the phone.
- Make sure whatever digital form of communication you are using is as secure as it can be.
- Don’t be stupid.
Memorial Day calls for a barbeque and barbeque calls for one of my favorite wines – Zinfandel – try one of these:
Cline Zinfandel – $8.92 with the discount.
Ridge Geyserville – $33.99 with the discount (a legendary Zinfandel)