It has been a while since I last wrote about this topic. And, getting around to finally writing this piece has been so frustrating and depressing for reasons that ought to be clear by the end of this post, that I am confident that I have no plans to return to it.
When I last left off, I was promising to come back and discuss issues arising under RPC 5.3 for lawyers regarding their responsibilities for nonlawyers that they employ or engage to provide them with assistance. Specifically, what I promised was that I would come back to the topic of Len Kachinsky and his post-hac efforts to deflect any blame for the way his private investigator handled a session with his juvenile client, Brendan Dassey, and to now say that he would not have hired the private investigator he hired — Michael O’Kelly — if he had known the investigator would engage in such conduct.
Setting aside the question of how believable that position is — the claim that he didn’t know roughly (if not exactly) what was going to happen when he let O’Kelly at his client, let’s take a look at what his ethical responsibilities actually would have been. (And, for the record, setting aside the question I just set aside takes real doing in the first place when you remember the email exchanges between Kachinsky and the investigator that were detailed in the final episode of the series and that were used in connection with the brutal cross-examination of Kachinsky by Dassey’s newest batch of lawyers.)
Wisconsin’s version (SCR 20:5.3) of the relevant rule is patterned after ABA Model Rule 5.3 and provides:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
To pare that down, the two parts most directly applicable to analyzing Kachinsky’s obligations are (b), (c)(1), and the portion of (c)(2) applicable to a lawyer with direct supervisory authority over the person.
So, this is the part where I could walk through questions about what exactly ought to be expected of a lawyer who hires a private investigator or a consultant in terms of “reasonable efforts” to ensure that they will conduct themselves in a way that would be compatible with the lawyer’s own ethical obligations and those questions can be difficult ones to fully evaluate, and it is often easy to take shots at a lawyer with the benefit of hindsight to conjure up some additional thing that could have, or should have, been done. And, from there, I could undertake an examination of the likelihood that — especially because the whole O’Kelly interview of Dassey was video-recorded — that at some point Kachinsky surely had to learn what had happened and could have undertaken some sort of effort to try to remedy the impact on Mr. Dassey.
But, between having watched the documentary itself and having read this piece specifically about Mr. O”Kelly and who he was before and after these events, it’s just not worth all of the effort. There really cannot be any justification for Kachinsky’s role in the farce. If nothing else would make it clear, then surely the nice photo of the “document” that O’Kelly put in front of Dassey — the Self Interview and Information Survey — and the “choices” it offers should demonstrate that no one would learn anything from deconstructing this scenario to try to fashion a way that this could have been done in compliance with the ethics rules:
Or, if that isn’t enough, how about the fact that O’Kelly was known back then (before Kachinsky retained him) for being an adherent of something called SCAN that he considered to be more effective than a lie detector test. You should actually go read the original Sacramento newspaper article as well, but if you are pressed for time, the summary treatment of it by the Gazette Review piece is pretty good:
In 2001, the Sacramento Daily Recorder ran an article about Michael O’Kelly. In short, the article explained how O’Kelly was one of “a dozen elite practioners” of a “truth detecting technique,” SCAN, which relied on exploiting linguistic deviations in statements. In the article, O’Kelly claims his technique is more dependable than a polygraph. An example of his technique is that if one were to say, “when I was a kid,” then that person was probably molested. Also, if you say the number 3, you’re probably lying.