Case will address lawyers employing deception clients

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Nate Cade

This month’s column focuses on the lengths an attorney can go to represent his clients. How zealous of an advocate can you be? And in fact, in zealously representing your client, may you use deception to accomplish that task?

That is a question our Supreme Court may soon answer for us.

One of the best-known lawyers in the state, Stephen Hurley, is apparently in hot water. Hurley, who successfully got the ever-conservative Seventh Circuit Judge Frank Easterbrook to order the immediate release of his client, Georgia Thompson, from jail within hours of Hurley’s oral argument before the court on April 5, now is the subject of an ethics complaint and investigation by the Office of Lawyer Regulation (The “facts” I address in this column all come from articles in the March 8 issue of the Capital Times in Madison, the March 9 issue of the Wisconsin State Journal, as well as several articles in various legal blogs I review, so I am not exposing Hurley to anything that is not in the public domain for the six loyal readers of this column, which includes my mom).

Specifically, the published articles indicate that Hurley is charged by OLR for allegedly engaging in professional misconduct involving dishonesty, fraud, deceit or misrepresentation, and that OLR is seeking a private reprimand against Hurley. Although private reprimands, when issued, do not name the attorney who is disciplined, every lawyer in this state will know who is being reprimanded, if (and a big if there) Hurley is found guilty of the misconduct charges.

The charges stem from Hurley’s defense of an individual by the name of Gordon Sussman, who was accused and convicted in 2005 of molesting a minor, and who now is serving a lengthy prison sentence. Prior to the trial, Sussman’s accuser alleged that he and Sussman had viewed pornography on a computer at a business owned by Sussman (The accuser also alleged other things that are too graphic to detail here).

Hurley allegedly believed that there would be evidence on the minor’s computer proving that the accuser, a teenage boy, had an interest in, as well as access to, similar pornography that he claimed Sussman had showed him. Hurley said that the evidence would aid in Sussman’s defense.

The accuser and his mother both denied attempts by Hurley’s investigator to obtain the information from the boy’s computer for them to use at trial. Hurley allegedly then hired the husband of his investigator to assist Hurley in a scheme to obtain the computer, according to the OLR complaint. Apparently, the investigator’s spouse had a fake letter sent from an Illinois company to the boy that indicated the company was researching computer use by teenagers and offered the accuser the ability to swap his computer for a new laptop, which he did. After the exchange of computers, the boy and his mother, according to the complaint, became suspicious and contacted the Dane County District Attorney’s Office, which conducted an investigation.

According to published news accounts at the time of trial in 2005, there was significant pornography retrieved from the teenage boy’s computer. However, the Court ruled that the evidence was not admissible because the images were from 2004 and the alleged sexual assault occurred at least two years prior to that date. Eventually the Dane County District Attorney forwarded its complaint about Hurley’s actions to OLR.

So, what is a lawyer in Wisconsin to do if they believe that deception or a ruse is necessary in order to serve the interest of their clients and/or to assist in preparation for trial or the discovery of evidence?

Indeed, if a client is charged with a crime that could put the client in jail for a lengthy period of time, are you allowed to use deception to help exonerate your client? Well, it depends on how well you read between the lines of the rules and cases from other jurisdictions.

The old rule 4.1 states:

SCR 20:4.1 Truthfulness in statements to others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of a material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

A major issue in this case then is what is a “material fact”? The term “material fact” is not defined. I could argue that because the accuser was not a party to the criminal complaint, there is no fact that is “material” enough that Hurley’s team would have had to indicate that the computer swap was an alleged scam.

Interestingly enough, this issue is addressed in the new Ethics 2000 rule change that the Wisconsin Supreme Court recently adopted in January, which goes into effect as of July 1. (See In the matter of the Petition for Amendment to Supreme Court Chapter 20 – Rules of Professional Conduct for Attorneys, 2007 WI 4 at SCR 20:4.1.)

Specifically, the new rule states:

SCR 20:4.1 Truthfulness in statements to others

(a) In the course of representing a client a lawyer shall not knowingly:

(1) make a false statement of a material fact or law to a 3rd person; or

(2) fail to disclose a material fact to a 3rd person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by SCR 20:1.6.

(b) Notwithstanding par. (a), SCR 20:5.3(c)(1), and SCR 20:8.4, a lawyer may advise or supervise others with respect to lawful investigative activities.

Here, the conduct by Hurley occurred before 2007. Does this mean that he is guilty for not waiting two years? I think the answer is “no.” In his response to the Dane County Circuit Court when the issue first came up in 2005, Hurley likened his actions to an undercover investigation to collect evidence similar to police sting operations or those investigations using civil rights complaint enforcements.

I personally believe that Hurley should be found innocent of the charges brought by OLR for several reasons.

First, Hurley did not use his private investigator or anyone else working on his behalf, assuming all the facts outlined in the papers are true, to obtain an admission or confession from the accuser, without his parents present, in which he recanted his accusations. Nor did Hurley entrap the accuser into downloading porn to bolster his defense theory.

Secondly, this case is a lot different from a civil rights case that uses testers to confirm racial bias or advising undercover agents how to deceive the criminal element. Here, Hurley’s client was charged with a crime for which he was convicted and remains in prison.

Because the boy refused to turn over his computer to Hurley’s investigator, what other option did Hurley have to have the computer inspected before trial to confirm his hunch without tipping off the prosecution as to a potential defe
nse? If Hurley had gone to the prosecution to seek the computer and it did not have any images on it, wouldn’t that be more harmful to his client?

Ironically, Bill Weigel of OLR acknowledged after its investigation that the Wisconsin rules with regard to deception are murky and the Supreme Court could use this case to spell them out. It is unfortunate that Hurley will become the test case.

To my six loyal readers — what are your thoughts?

Nate Cade is a partner practicing in litigation at Michael Best & Friedrich LLP, where he is a member of the firm’s Tort Liability Practice Group. He can be reached at [email protected].