Tales Of The Unethical: A Client Hacks, His Lawyer Cheats, And HIS Lawyer Spins

hackedWhat a mess.

Missouri lawyer Joel Eisenstein saw two documents illicitly obtained by his client: a payroll document for the client’s wife and a list of direct examination questions prepared by his client’s wife’s attorney for an upcoming divorce trial.

This kind of stuff, proprietary material that is handed over to a lawyer by someone, including a client, who received it under dubious circumstances is ethically radioactive. As the DC bar wrote in Ethics Opinion 318…

When counsel in an adversary proceeding receives a privileged document from a client or other person that may have been stolen or taken without authorization from an opposing party, Rule 1.15(b) requires the receiving counsel to refrain from reviewing and using the document if: 1) its privileged status is readily apparent on its face; 2) receiving counsel knows that the document came from someone who was not authorized to disclose it; and 3) receiving counsel does not have a reasonable basis to conclude that the opposing party waived the attorney-client privilege with respect to such document. Receiving counsel may violate the provisions of Rule 8.4(c) by reviewing and using the document in an adversary proceeding under such circumstances and should either return the document to opposing counsel or make inquiry of opposing counsel about its status prior to determining what course of action to take.

To be more concise, if there is any chance that the material was stolen, then a lawyer is risking serious misconduct by accepting or using it. In such cases, Hillary-like, a lawyer will typically argue that the material wasn’t marked “privileged,” and indeed most such documents won’t be. A lawyer, however, is charged with recognizing the kind of material he or she would regard as privileged or work product if it related to a client, and not play dumb.

Eisenstein almost certainly knew he shouldn’t have the documents. He used the payroll information during a settlement conference without disclosing he had it. Opposing counsel learned Eisenstein had the list of questions when it was inadvertently included in a stack of exhibits that Eisenstein handed to the lawyer himself. DOH!

He asked Eisenstein how he came to have the questions, and Eisenstein’s answers amounted to “Humina humina humina...” He  later said his paralegal had placed the questions in the stack of exhibits (the old “blame the underling” trick)  then in a conference in the judge’s chambers, he said he hadn’t seen the questions before that morning. Finally, he admitted he had seen the questions but swore he hadn’t read them. Judge’s don’t like it when lawyers seem to be lying to them, and neither do the Rules. Meanwhile,Eisenstein’s client said he had obtained the documents by breaking into his wife’s personal email account by guessing her password. Ah, he hacked her e-mail, then.

Up to this point, Eisenstein received illegally obtained proprietary property, may have used it knowing that it was privileged, appears to have lied when confronted, misrepresented the incident to the judge, and, also was a careless boob, handing the documents he had no business having over to his adversary, and in so doing exposing his client’s misconduct in hacking the e-mail, which as his lawyer Eisenstein was bound not to disclose.

As the cherry on this sundae of unethical conduct,  Eisenstein sent the opposing counsel an email that threatening him over the incident, saying in part,  “Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start…”

Eisenstein’s lawyer, charged with keeping his client from losing his license, is, as lawyers often are, stuck with insisting that his client did nothing wrong  and—and this is a real tip-off of desperation—making sure it is known that Eisenstein was a war hero who earned a Silver Star with the Marine Corps in Vietnam. Why should that make any difference at all? I’m not aware of any special license for former war hero lawyers to get to cheat when ordinary, Vietnam draft-dodging lawyers can’t.

Just think, it all might have been avoided if Eisenstein had kept up with legal ethics opinions. Frankly, I think a lot of lawyers have no idea what they should do when a client arrives with a smoking gun document and says, “Look what I found!”

UPDATE (4/6/16): Eisenstein is suspended.

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Pointer and Source: ABA Journal

6 thoughts on “Tales Of The Unethical: A Client Hacks, His Lawyer Cheats, And HIS Lawyer Spins

  1. Is this your sly way of proving your fair-mindedness by praising one lawyer (Turley) then immediately slamming a slime-bag one? Well done, if obvious. Unfortunately, most Americans would see Turley as the exception and the slime-bag as the rule, as far as lawyers go. They are absolutely essential to the preservation of our government and way of life, as are, among others, elected officials, law enforcement personnel, and spies. And like elected officials, law enforcement personnel and spies, a mixed bag. I think it’s just barely possible that lawyers (practicing ones, not the lawmakers) are inching up in their reputation relative to other professions, as elected officials and the media are now at the tippy-top of the least trusted groups.

    Cute story, though.

  2. You can teach ethics to students but you can’t make ethics part of their character, that must to be an active choice the individual student/professional makes for themself on a daily basis.

  3. I hope Valerie Jarrett and Loretta Lynch don’t read your posts. I can just see one of them with a cartoon balloon over their head thinking: “That’s what we’ll do! We’ll just have Hillary surrender her license to practice law! That’ll take care of it! It worked for Bill!”

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