So (finally) I’ve made myself read a bit more into the DC situation — that for many people is now ancient history but was news to me — about what seems like something that definitely got some play in the news but ought to be a more nationally discussed scandal. The weird penchant that DC Bar Counsel has displayed in recent years of going after not just lawyer whistleblowers but lawyers who provide advice and counsel to such lawyers.
When I started down this path originally, it was in connection with noting the discipline that was imposed against Adrianna Koeck over her sharing of certain documents she took with her upon leaving her position as in-house counsel for GE and sharing them with the media. I’ve now had the chance to track down and read the admonition issued against Koeck’s former professor – Robert Blakey — and the recommended findings/charges against Koeck’s lawyer – Lynne Bernabei. Having done so, I’m still left shaking my head and thinking the priorities demonstrated are bananas.
The Report and Recommendation of the Ad Hoc Hearing Committee contains information that can be referenced to succinctly distill the underlying scenario:
In her position with GE, Koeck served “as the interface between legal issues happening in Latin America, Brazil, Argentina, Chile…and the broader businesses spread across the globe….
When Koeck joined [GE] in 2006, Koeck’s supervisor … brief her about [an investigation involving questions regarding value added tax issues in Brazil] and gave her the file concerning the matter. Resolving these discrepancies [the VAT issues] became one of the “big issues” on Koeck’s plate….
In mid-November 2006, after eleven months of her working for GE… Human Resources advised Koeck that [her supervisor] did not want her to either stay with the company or move to another GE business.
Koeck was to be discharged at a November 29, 2006 meeting scheduled with a GE Human Resource employee, but immediately before that meeting, Koeck emailed the GE corporate Ombudsman… claiming, among other things, that she was being retaliated against “for participating in and reporting illegal activity engaged in by [GE] personnel.” She alleged that, in the course of her compliance investigations, she had discovered tax fraud that GE had been perpetrating in Brazil. She claimed that she was being terminated for raising concerns about the fraud to her supervisors.
In late August 2007, Koeck sought the legal advice of her former Notre Dame Law School professor, G. Robert Blakey. Koeck provided Blakey with some of the confidential documents that she had copied from her GE computer. Blakey advised Koeck, “that the documents and information she had were not covered by the attorney-client relationship, because they fell within the crime/fraud exception.”
Blakey confined his advice to Koeck to disclosures she would make to protect herself against potential criminal liability, and he recommended that she retain an additional attorney with expertise in employment law and whistleblower complaints. Blakely gave Koeck the names of two firms, one of which was Bernabei & Wachtel, PLLC.
On November 27, 2007, Koeck formally retained Bernabei’s firm to handle the SOX matter before the Department of Labor.
After Koeck retained Bernabei on November 27, 2007, she and Blakey met and agreed that Koeck should inform the press about GE’s activities in Brazil. Beginning in December 2007, Bernabei spoke with Koeck about having a press strategy and talking to the press.
At some point in the fall of 2007, David Cay Johnston, a New York Times reporter at the time, received a telephone call from Blakey who asked if Johnson “might be interested in material about a long-running series of felonies committed by General Electric in another country.” Thereafter, Johnson received “hundreds of pages of documents” from Blakey or Koeck. Subsequently in January 2008, Johnston interviewed Koeck about the alleged tax fraud in Brazil and she provided additional documents in her possession regarding GE’s activities there.
Now as to Koeck and Bernabei, an interesting wrinkle learned from reading the source documents is that because the SOX proceedings were before the Department of Labor, the disciplinary body looked to the ABA Model Rules to apply to some extent, but entirely ignored any evaluation of Model Rule 3.6 on trial publicity that would appear, arguably, to permit disclosure of aspects of the proceedings to the media. In my earlier post, I had noted that DC does not have a trial publicity rule that extends as far as the Model Rule, but this wrinkle, to me, further undermines the outcome in these matters.
But it is the details of Professor Blakey’s situation though that are laid out in his admonition letter – that bar counsel was aware of and took into account and yet still thought discipline was warranted that most astound me and leave me sticking to my guns about this all being bananas:
Ms. Koeck told you that she was concerned that GE had not and was not taking any action to stop the alleged ongoing fraud and that she was afraid that she might be personally liable for the activity because Brazilian law holds individuals, and not corporations, liable for tax fraud and criminal activity. Ms. Koeck also said that she knew of money-laundering activities and described instances in which GE employees in South America had been murdered. Based on your conversations with her, you were under the mistaken impression that Ms. Koeck was residing in Brazil. You believed that she faced possible criminal liability if she did not report the alleged illegal and fraudulent activity. You also believed that her physical safety was in danger.
In advising Ms. Koeck to provide information and copies of GE’s documents to Mr. Johnston, you had in mind the evidentiary crime-fraud exception to the attorney-client privilege, but you did not give adequate consideration to the terms of Rule 1.6 of the Rules of Professional Conduct.
Now setting aside the fact that D.C.’s Rule 1.6(d) does provide a lawyer with an exception to permit disclosure that would at least have been arguably available to cover Koeck’s circumstances, they are managing to discipline a very distinguished lawyer on a basis of saying he assisted another lawyer in violating her ethical obligations rather than attempt to prove that the lawyer’s allegedly “bad advice” rose to a level of incompetence to justify discipline under Rule 1.1.
As a lawyer who represents lawyers, I find that to be a really quite scary turn of events.
My view on the whole situation isn’t exactly made any better after tooling around a bit on the Web regarding the disciplinary counsel involved in pursuing this matter, Hamilton P. Fox, III. Mr. Fox appears to be the same gentleman who was on the wrong side of the exercise of abusive and over-the-top enforcement powers recently as well. You can read about the saga involved in his arrest and his wife’s detention stemming from Mr. Fox being parked in a place he shouldn’t have been parked in. and the D.C. police appearing to significantly overreact to the situation presented here. Assuming he is the same person, and I admit it is possible that there are two separate Hamilton P. Fox, III in D.C., but assuming he’s the same person and I think I’m on solid ground about that as other people have laid out before, you’d think the experience he went through would make him more sympathetic to wielding power irresponsibly and trying to only target those who deserve punishment, but apparently not.
As a lawyer who represents lawyers, I’ll try for now just to look on the bright side of things that I don’t practice in the District of Columbia instead of dwelling on just how chilling the actions of D.C. Bar Counsel might be on lawyers who do.