Defense Lawyer or Consigliere? U.S. v. Farrell, Fourth Circuit Court of Appeals, Decided April 5, 2019

The first rule of criminal defense practice is: the lawyer should never be the one who goes to jail… So, how does a defense lawyer cross the line and become a “consigliere” to a criminal enterprise, exposing him or herself to criminal prosecution?

An attorney in Maryland was charged and convicted of money laundering, obstruction of justice, and witness tampering – with evidence that largely consisted of audio recordings that his clients made of their conversations.

What is a consigliere? How does a defense lawyer wind up on the receiving end of a federal prosecution along with his clients, and how can a defense attorney aggressively represent their clients without coming under suspicion themselves?

What is a Consigliere?

When I hear the word “consigliere” I immediately think of the Godfather’s Tom Hagen – in-house attorney for the Corleone family…

You don’t have to be “adopted” into an Italian mafia family to be considered a consigliere, however. A consigliere refers to an attorney who is employed, usually exclusively, by a criminal enterprise, giving advice on business matters, negotiating, and helping to avoid detection and arrest by the authorities.

What’s the difference between a criminal defense lawyer and a consigliere, or “fixer?”

Lawyers, bound by the profession’s code of ethics, can give advice as to past criminal conduct. In some cases, they can give advice as to future conduct, but not future criminal conduct other than don’t do it:

Any lawyer providing advice concerning ongoing unlawful activity is circumscribed in the legal advice that can permissibly be provided, lest he become a participant in the unlawful activity. That is, a lawyer representing or advising such an entity can readily turn himself into a coconspirator — or aider and abettor — in the form of a consigliere or fixer. In all likelihood, the lawyer could with propriety advise the drug kingpin of the unlawful entity thusly: to immediately cease all unlawful drug trafficking activities. In the vernacular, the drug kingpin could be advised that all such activities should be immediately “shut down.”

If an attorney is advising a client as to how to avoid detection or conceal evidence, or advising a client in a continuing criminal enterprise, the attorney may be subject to a wide range of criminal charges themselves, including conspiracy, accessory before or after the fact, obstruction of justice, or witness tampering.

How Does a Defense Lawyer Get Convicted for Money Laundering?

Money laundering is when a person takes proceeds from illegal activity and “makes it clean” – puts it into the financial system in a way that is intended to conceal the money’s source.

Farrell’s money laundering charges were based on what is called “concealment” money laundering under 18 USC section 1956(a)(1)(B)(i):

(a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity…

(B) knowing that the transaction is designed in whole or in part— (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity…

Specifically, Farrell was accused of:

• Receiving illegal proceeds of drug trafficking from the organization and then using it to pay for legal services for drug dealers;
• Converting drug trafficking proceeds to money orders and using them to support incarcerated members of the organization;
• Falsifying financial records to conceal the source of the funds; and
• Paying cash proceeds from drug trafficking to members of the organization.

What does the government have to prove to convict an attorney of money laundering?

(1) that the defendant conducted or attempted to conduct a financial transaction having at least a de minimis effect on interstate commerce or involving the use of a financial institution which is engaged in, or the activities of which have at least a de minimis effect on, interstate commerce;

(2) that the property that was the subject of the transaction involved the proceeds of specified unlawful activity;

(3) that the defendant knew that the property involved represented the proceeds of some form of unlawful activity; and

(4) that the defendant knew that the transaction was designed in whole or part, to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of the unlawful activity.

In addition to financial records and testimony about payments made and received, the government relied on recordings of Farrell discussing the organization’s business with his clients to prove his knowledge about the source and purpose of the payments.

How Does a Defense Lawyer Get Convicted for Obstruction of Justice?

Witness testimony and audio recordings made by Farrell’s clients were introduced at trial to show that he assisted in obstructing investigations and prosecutions of his clients by:

• Instructing his clients to withhold information or lie to federal agents;
• Instructing his clients to withhold information or lie to the grand jury;
• Advising a client to marry a coconspirator so she would not have to testify under spousal privilege; and
• Forging affidavits to prevent forfeiture proceedings by the DEA (and instructing his paralegal to notarize the affidavits with fake credentials);

How Does a Defense Lawyer Get Convicted for Witness Tampering?

Any time a defense attorney speaks to a potential witness, they should either have a witness present or, better yet, let an investigator speak to the witness.

Someone, somewhere, sooner or later, is going to claim that the defense attorney threatened a witness or tried to force the witness to testify to something that is not true. Because of this, a witness, an audio recording, or letting someone else interview the witness are protective measures that every attorney should take every time they speak to a witness.

The sort of things you are protecting yourself against are exactly the sort of allegations that led to Farrell’s conviction for witness tampering – allegations of:

• Giving money to witnesses that could be interpreted as “hush money” or a bribe;
• Paying for a codefendant’s legal fees with the expectation that, in exchange, they will keep their mouth shut;
• Advising a witness to marry another witness so they can invoke spousal privilege;
• Threats of physical harm if the witness does not cooperate with the defense; or
• Telling witnesses what to say, advising them to lie, or advising them to withhold information.

Remember, the first rule of criminal defense practice is: the lawyer should never be the one who goes to jail. So, how can defense attorneys protect themselves?

First, don’t do any of the things listed above. Read and understand the ethics rules, and don’t do anything that could even be misinterpreted as one of the above…

Second, always assume every conversation you have is being recorded and act accordingly. Don’t say anything that could be taken out of context and used against you later and keep everything above board.

Finally, if you are interviewing a witness or alleged victim in a case, let an investigator do the interview while you observe, record the interview with the witness’ consent, or, at a minimum, have a witness in the room who will be reliable and competent to testify if necessary.

Federal White Collar Criminal Defense and Criminal Appellate Lawyer in Columbia, SC

Elizabeth Franklin-Best is a federal criminal defense and federal appellate lawyer in Columbia, SC who defends white-collar criminal cases.

For more information, call us at (803) 331-3421 or email us through our website to set up a consultation about your case.