May 02, 2019

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith Fisher, Christina Houston

Professional Responsibility

FARA Indictment of Former White House Counsel

By Keith R. Fisher

As a follow-up to our previous report on Skadden’s $4.6 million settlement with DOJ to avoid prosecution for violation of the Foreign Agents Registration Act (FARA), on April 11 the U.S. Attorney’s Office for the District of Columbia indicted former Obama White House Counsel (and former Skadden partner) Greg Craig for false and misleading statements to DOJ’s FARA unit and subsequently to Special Counsel Robert Mueller’s prosecution team.  FARA’s purpose is to prevent covert influence by foreign principals.  Craig and Skadden had been engaged by Russian-backed Viktor Yanukovych, former Ukrainian President, to prepare an “independent report” (the “Report”) supporting the conclusion that the prosecution, widely believed to have been politically motivated, of former Ukrainian Prime Minister Yulia Tymoshenko resulted in a fair trial by Western standards. 

According to the indictment, “[t]he purpose of the scheme was for Craig to avoid registration as an agent of Ukraine.”  Registration would have required “disclosure of the fact that [a wealthy private Ukrainian] had paid Craig and the Law Firm more than $4 million for the Report . . .;  undermine the Report and Craig's perceived independence; and impair the ability of Craig and others at the Law Firm to later return to government positions.”

Another former Skadden lawyer, Alex van der Zwaan pleaded guilty last year to lying to investigators about the report.  In a video statement uploaded on YouTube, Craig he defended the Report as “independent” and denied helping Ukraine spin the information contained therein; he.criticized the prosecution as “unprecedented and unjustified,” and denied any wrongdoing.

If convicted, Craig faces as much as ten years of imprisonment and fines totaling over $250,000.  Apart from criminal liability, the allegations, if proved, would constitute a violation of Model Rule 4.1 (truthfulness in statements to others) and possibly also Model Rule 3.3 (candor toward the tribunal) if the DOJ FARA unit qualifies as a “Tribunal” as defined in Model Rule 1.0(m).

Texas Senate Bill Regulates “Deceptive” Legal Ads

By Keith R. Fisher

Texas Senate Bill 1189 addresses television advertisements for legal services that “deceptively” warn viewers that the medication they’re taking could be dangerous.  The bill would require such advertisements to contain a warning that it is dangerous to stop taking a prescribed medication before consulting with a physician.  The bill would also authorize injunctive actions to restrain ads that violate the law as well as civil liability of up to $20,000 per violation.  The bill was passed by the State Senate on April 11 but needs to pass both houses of the State legislature and be signed by the Governor before becoming law. 

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.