July 20, 2019

Archives for April 24, 2018

Prison for Breach of Duties of Candor?!

By Karen A. Hammer, Esq., LL.M.

The legal world is complicated. Our law practices vary greatly, as do our personalities and political interests.

But many lawyers can agree on one goal — avoid prison.

Alex Van Der Zwaan Gets Thirty Days

Dutch solicitor Alex R. van der Zwaan (English Solicitors Regulation Authority I.D. 433369) is the first person sentenced in Special Counsel Robert Mueller’s ongoing investigation, receiving thirty days of incarceration. To be clear, Mr. van der Zwaan has not, at least as far as has been publicly disclosed, been disciplined by the Solicitors Regulation Authority that controls his license. See http://solicitors.lawsociety.org.uk/person/7115/alex-rolf-van-der-zwaan.

The sentencing memorandum from the United States case brought against Mr. van der Zwaan (United States v. van der Zwaan, 1:18-cr-00031-ABJ (D. D.C. 2018)) is an interesting and quick read. If you’re curious, look here: https://bit.ly/2Hb5lQk. (Mr. van der Zwaan’s proposed Sentencing Memorandum can be found here: https://bit.ly/2q4recI.)

Aggravating and Mitigating Factors

The prosecution uses language that is similar to that used in disciplinary sanction proceedings, referring to “aggravating” and “mitigating” factors. If you’re not yet familiar with the factors that are used to determine the proper levels of discipline for lawyers’ violations of rules of professional conduct, you may be interested in the ABA Standards for Imposing Sanctions (https://bit.ly/2jCsuTR). These Standards describe aggravating and mitigating factors.

One interesting “aggravating” factor in Mr. van der Zwaan’s sentence to a 30-day term was that the “professional bar rightly expected candor” from him. Sentencing Memo at 5. This is a reminder of a frequently overlooked part of the Model Rules of Professional Conduct that allows these Rules to be used as standards that can be applied outside of the context of attorney discipline. See, e.g., Colo. RPC Scope [20] (“a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct”), available at http://www.cobar.org/For-Members/Opinions-Rules-Statutes/Rules-of-Professional-Conduct/Preamble-and-Scope.

But Still, Prison for the Duty of Candor?

Some might ask how Special Counsel Mueller could reasonably expect Mr. van der Zwaan to have a duty of candor during the investigation that was being conducted. The formal charge made against Mr. van der Zwaan was a violation of 18 U.S.C. § 1001(a)(2) — making a false statement in an investigation within the jurisdiction of the executive branch. Van der Zwaan Doc. 1 (Feb. 16, 2018) at 1.

Section 1001 explicitly excludes parties and their counsel from criminal prosecution thereunder. 18 U.S.C. § 1001(b). He was a solicitor in the London office of Skadden, Arps, Slate, Meagher & Flom, LLP. So, how did Mr. van der Zwaan get charged with a violation of § 1001?

Mr. van der Zwaan was neither a party nor counsel to a party when he made his false statements to the Special Counsel’s Office. Mr. van der Zwaan’s false statements resulted in his becoming a party to a criminal case. See https://bit.ly/2JjYDrT. He admitted that he received warning that “intentional false statements” by him during the investigation could lead to criminal charges. Van der Zwaan Doc. 9, ¶ 3 at 2, https://bit.ly/2GCETxM.

To be clear, the Sentencing Memorandum did not refer to any of the Rules of Professional Conduct, which may not (or may) apply to Mr. van der Zwaan absent other facts not referred to here. Mr. van der Zwaan is licensed to practice in England, and the Sentencing Memorandum does not directly state whether the England’s Solicitors Regulation Authority Code of Conduct applies to false statements he made while being questioned in the District of Columbia by the Special Counsel’s Office.

But this statement that the “bar” may expect “candor” from lawyers is an example of an important part of the Model Rules of Professional Conduct that impose certain standards on lawyers even when they are not practicing law. See, e.g., Colo. RPC 8.4 (imposing a variety of standards, including the prohibition of dishonest conduct and of conduct that is prejudicial to the administration of justice), available at http://www.cobar.org/For-Members/Opinions-Rules-Statutes/Rules-of-Professional-Conduct/Rule-84-Misconduct.

If you haven’t reviewed Rule 8.4 in a while, Mr. van der Zwaan’s recent sentence of incarceration may pique your curiosity enough to take a look.  Our memory of the Rules and the fairly specific standards of conduct they impose on us as lawyers fades over time, yet our obligations do not.

Learn from Others

I’m a big believer in learning from the mistakes of others. Unfortunately for Mr. van der Zwaan, his misconduct provided the current lesson that inspired me to renew my own understanding of the duties of candor and how they apply in situations that some lawyers might not anticipate.

Some lawyers incorrectly continue to believe that their only duties are to their clients.

Be proactive — familiarize yourself with the rules and standards Mr. van der Zwaan has teed up for us all.

[1] A version of this article was originally published in Law Week Colorado on April 9, 2018, primarily omitting citations and hyperlinks, available at http://lawweekcolorado.com/2018/04/prison-breach-duties-candor/.


Colorado Supreme Court: Circulator for Representative Lamborn’s Gubernatorial Ballot Petition was Not a Resident of Colorado, Therefore Signatures Invalid

The Colorado Supreme Court issued its opinion in Kuhn v. Williams on Monday, April 23, 2018.

Election Law.

In this expedited appeal under C.R.S. § 1-1-113(3), the supreme court addressed whether the Colorado Secretary of State (Secretary) could certify incumbent Representative Doug Lamborn to the 2018 Republican primary ballot for Colorado’s Fifth Congressional District. Relying solely on the Colorado Election Code, the court concluded he may not.

The court held that although the Secretary properly relied on the circulator’s affidavit and information in the voter registration system in verifying the petition and issuing a statement of sufficiency, petitioners nonetheless had the statutory right to challenge the validity of the petition under C.R.S. §§ 1-4-909 and 1-1-113 before the Secretary certified Rep. Lamborn’s name to the ballot. Petitioners properly presented additional evidence to the district court in challenging the actual residence of the petition circulators.

The court concluded that the district erred when it focused on the challenged circulator’s subjective intent to move back to Colorado, rather than the test set forth in C.R.S. § 1-2-102, when determining the challenged circulator’s residency. In applying the correct test to the essentially undisputed facts here, the court concluded that the challenged circulator was not a resident of Colorado when he served as a circulator for the Lamborn campaign. Accordingly, the court reversed the district court’s ruling to the contrary. Because the challenged circulator was statutorily ineligible to serve as a circulator, the signatures he collected are invalid and may not be considered. That caused the Lamborn campaign’s number of signatures to fall short of the 1,000 required to be on the Republican primary ballot.

Therefore, the court held that the Secretary may not certify Rep. Lamborn to the 2018 primary ballot for Colorado’s Fifth Congressional District. The court did not address the Lamborn campaign’s arguments regarding the constitutionality of the circulator residency requirement in C.R.S. § 1-4-905(1) because the court lacks jurisdiction to address such claims in a proceeding under C.R.S. § 1-1-113.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Incidental or De Minimus Tax Revenue Increase Does Not Amount to “New Tax” for TABOR Purposes

The Colorado Supreme Court issued its opinion in TABOR Foundation v. Regional Transportation District on Monday, April 23, 2018.

To simplify tax collection and ease administrative burdens, House Bill 13-1272 realigned the sales taxes for the Regional Transportation District and the Scientific and Cultural Facilities District with the State’s sales tax. This involved removing some sales tax exemptions and adding others, resulting in a projected 0.6% net revenue increase for the Districts. The TABOR Foundation sued, arguing that H.B. 13-1272 violated theTaxpayer Bill of Rights, Colo. Const. art. X, § 20(4) (“TABOR”), by making this tax change without first obtaining voter approval.

The supreme court held that legislation like H.B. 13-1272 that causes only an incidental and de minimis tax-revenue increase does not amount to a “new tax” or a “tax policy change” under TABOR section 4. Because the court of appeals correctly determined that H.B. 13-1272 was constitutional, the supreme court affirmed its judgment.

Summary provided courtesy of Colorado Lawyer.