Thursday, July 26, 2012

Some people really should know better.

If you google the phrase "computer forensics firms" google will give you about 2,540,000 results in .48 seconds. 

For those of you who do not know, computer forensics is a way of taking information off a computer or server.  Among other things, computer forensics firms assist lawyers in both civil and criminal matters discover evidence relevant to claims or defenses.  These firms are able to recover information that people believe they deleted. Put another way, if there is any profession that understands that "email lives on" it is lawyers.

Since lawyers understand that it is hard to truly delete information on a computer, you might think that a lawyer would be extra careful about how the lawyer uses their electronic devices and/or email.  Sadly, this is sometimes not the case.  Consider  the story of Jeffrey Holmes as reported by the Columbian, the paper of record for Clark County, Washington

Until last month, Mr. Holmes was a deputy prosecuting attorney for Clark County.  In May, Mr. Holmes's ex-girlfriend made a report of domestic violence against Mr. Holmes to the police.  Mr. Holmes was not charged with a crime related to that report because it appeared to authorities that Mr. Holmes seemed likely be able to beat a charge by claiming self-defense—in part because Mr. Holmes apparently used his phone to film his ex-girlfirend having very emotional outbursts.  So far, the phone is helping Mr. Holmes.  That is about to change.

In addition to seeing the films, the dectectives invesigating the claim were also able to get emails off of Mr. Holmes's cell phone.  The dectectives found "numerous" emails between Mr. Holmes and prostitutes that explicitly discussed sex acts and prices.  According to this motion to find probable cause, these emails began in 2010 and did not end until March of 2012.  As a result Mr. Holmes was charged with the misdemeanor crime of attempted patronizing of a prostitute.  Since he was a prosecutor Mr. Holmes, unlike the folks that are the subject of Mr. Torvik's recent post, presumably knew that patronizing prostitutes was illegal.

Given the frequent use of computer forensics by lawyers, you would think that Mr. Holmes would know better than to conduct negotiations involving illegal conduct via email.  Apparently, you would be wrong.  You might also think that Mr. Holmes would know better than to speak to the detectives investigating the emails.  Again, you would be wrong.  Mr. Holmes did talk to the dectectives.  Mr. Holmes's talk with dectectives did not help his cause. 

You might be inclined to cut Mr. Holmes a some slack because being interviewed by detectives "in the box" can apparently be stressful.  But note that when the detectives initially interviewed Mr. Holmes he either refused to answer questions or admitted to perusing prostitution websites but denied meeting anyone. Then, for reasons that are not explained, Mr. Holmes decided to contact the detectives several days later and give a taped statement. 

In this second meeting, Mr. Holmes admitted to seeing prostitutes but said that, despite the emails going into 2012, he had not patronized any prostitutes since April 2011.  Some cynics might note that the statute of limitations on patronizing a prostitute in Washington in one year.  Thus, by meeting with detectives at the end of May 2012, and admitting only to conduct in April 2011, Mr. Holmes was only admitting to criminal acts for which he could not be prosecuted under Washington law.  Unfortunately for Mr. Holmes, the prosecutors felt that he could still be charged with attempting to patronize a prostitute because of the 2012 emails. 

According to the paper, Mr. Holmes is facing a maximum sentence of 90 days in jail and a $1,000 fine.  He also resigned his job as a deputy prosecuting attorney.  Is Mr. Holmes also going to get in trouble for violating Washington's Rules of Professional Conduct for lawyers?  Rule 8.4 deals with attorney misconduct.  Subpart(b) of the rule prohibits a lawyer from committing a crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.  I could not find any reported cases in Washington that said that seeing a prostitute fits this definition.  However, I can see where people might not trust a prosecuting attorney who is violating the law by patronizing-or attempting to patronize-prostitutes.  What do you think Mr. Torvik?

Rule 8.4(c) also prohibits lawyers from engaging in conduct involving, dishonesty, fraud, deceit, or misrepresentations.  Depending on how one feels about Mr. Holmes's statements regarding the last time he saw a prostitute, one might think this rule has been violated.  Finally, Rule 8.4(e) prohibits lawyers from stating or implying "an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law."  Mr. Holmes's interactions with prostitutes do not seem to violate this rule.  However, note that Mr. Holmes's ex-girlfriend initially did not bring her report of domestic violence to the authorities because, she says, Mr. Holmes told her that he had a  "good rapport with the officers and nothing would happen."  If Mr. Holmes made the statement he is alleged to have made, then it will not be surprising if he is given some form of attorney discipline.

So what should Reader(s)™ learn from the sad tale of Mr. Holmes?  My advice would be to not do illegal things.  However, if that advice is too hard to follow, then maybe just do not do illegal things via email.

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