Posted on
January 26, 2009 in
From a post, The Nature of the Job, last October:
Clients sometimes think that they want a lawyer who will act unethically for them, but they don’t: first, because a defense based on lies is almost always doomed to fail; and second, because clients need lawyers they can trust. Unethical lawyers are . . . unethical. A lawyer who behaves dishonestly “for his clients” can reasonably be expected to behave dishonestly toward his clients. [Edit: Or, as Windy Pundit Mark Draughn writes, “you have no right to be surprised when you discover he’s ripping you off and screwing your wife.”]
From the headlines, today on South Carolina criminal-defense lawyer Bobby Frederick’s blog:
Ohio defense attorney Frank Pignatelli turned informant, now practicing criminal defense in Denver.
New York criminal-defense lawyer Scott Greenfield lays into the lawyer, Francis M. Pignatelli (yes, I am using his name as often as possible), here.
. . . [T]here is no place horrific enough in the bowels of hell for the soul of a lawyer who would flip on his clients to save his sorry criminal butt. Then again, as he’s already made the choice to sell his soul for a pile of cash, he’s lost any hope of integrity and the step to being a rat is a small one in comparison.
I’m not as certain as Scott that Francis Pignatelli joined in his clients’ conspiracy, making the choice to sell his soul for a pile of cash. Here’s what I’ve read:
Federal prosecutors said they learned through another investigation that Frank Pignatelli was helping his clients purchase “stash houses” in which to store drugs and money.
Based on the investigation, which included wire taps, agents searched Francis Michael Pignatelli’s home and recovered large sums of cash, authorities said. He was not indicted, but instead began cooperating with federal drug investigators.
As always, the presumption of innocence applies and what federal prosecutors say is taken with a substantial grain of salt. Frank Pignatelli was dirty and got caught, or he was clean and got spooked; either way, he stepped on his clients to climb out of the hole of criminal liability.
If Francis M. Pignatelli was dirty and got caught, then it is possible that some of his clients were using him to commit crimes. In that case, what they told him was not privileged, and it’s hard to sympathize with either him or them.
It’s also possible that some of the people he snitched on were legitimate clients, depending on him to keep their confidences and protect their freedom. If that’s the case, whether he was clean or not, snitching on those clients was the greatest sin that Frank M. Pignatelli could commit as a criminal-defense lawyer. As Scott writes,
It is, quite plainly, about as inconceivably ruinous to the integrity of the criminal justice system for a person masquerading as a criminal-defense lawyer to use the information obtained to rat people out. I say “masquerading” as a rat cannot, by definition, be a criminal-defense lawyer. It would be a contradiction in terms. He can wear the suit, talk the talk, but he cannot be a lawyer, no less a criminal-defense lawyer. It isn’t possible.
Either way — if he was a criminal who ratted out his coconspirators, or if he was a lawyer who ratted out his clients — Francis Michael Pignatelli is a crook who has no business accepting the confidences of people charged with crimes. This is especially true of people charged with crimes by the Federal government, which appears still to have a sword over his neck: “He has been offered consideration of a lesser sentence, if or when he is charged, authorities said”. And now Francis M. Pignatelli is taking clients — federal clients, no less — in Denver.
Dishonest lawyers are dishonest, and can reasonably be expected to treat their clients dishonestly. Dishonest lawyers are also, as Frank Pignatelli’s case illustrates, vulnerable.
How could anyone — including the U.S. District Judges before whom he appears — possibly imagine that there’s not a conflict of interest between Mr. Pignatelli and every client who is, like him, facing federal prosecution?
It’s always possible that he “got spooked” and flipped. It’s possible. But the fact that he was accused and flipped precludes my acceptance of this extraordinarily far-fetched possibility and the fact that he flipped precludes my willingness to give him the benefit of this far-fetched doubt. Whether he was guilty of the accusation will never be tested because he flipped, and because he flipped he doesn’t deserve the benefit of the doubt.
And while it’s possible, nobody really believes Pignatelli, tough federal defense lawyer, was innocent and just got “spooked”. Not for a second.
Don’t be absurd. Many “federal criminal defense lawyers” reflexively walk their clients in to the U.S. Attorney’s Office to talk, without much consideration for the truth, much less the provability, of the accusations. (because everybody gets convicted anyway) Why would such a lawyer treat his own case any differently than his clients’, and why would Pignatelli be any different? (I haven’t seen him described as “tough” elsewhere; I assume that’s your own flourish.)
I take it all back. If you say he’s a gutless, worthless, flip-’em lawyer whose practice consists of walking innocent people straight down to the US Attorney’s office to turn rat, who am I to argue. Plus, I certainly wouldn’t want to be absurd.
Is it me or what? How can a Federal Judge allow this sort of evidence obtained from a lawyer who is really a snitch? What about the ethics of the Federal Prosecutor? It seems to me this is an ethical violation on more than just the so-called lawyer! If I were a judge I would never countenance allowing such evidence in my court. Thoughts?
You’re all asking good questions. I find it alarming, though, that all this speculation is based on one newspaper article which gave seems to have given very little background information, but which is being held as a paragon of trustworthiness. Mr. Pignatelli has not necessarily violated the attorney-client privilege, though he was accused of doing so by a former client who might not understand what would constitute such a violation. His testimony against this former client was accepted in court in a public trial (the reporter was there to report on it), so how could it be the sort of thing that would undermine the entire justice system? And does anyone know what he was being indicted for? The article says the prosecutor accused him of helping his clients to purchase “stash houses”. No mention is made at all of the content of the indictment. In my opinion, such an accusation probably has nothing to do with his criminal indictment, being that it was voiced during someone else’s trial where his credibility as a witness and provider of crucial evidence was under fire.
I think he is probably guilty of some level of dishonesty, but none of us really have any idea what he is guilty of based on a single article concerning a former client’s trial, which is the only source of information anybody is quoting. Does anybody have any real facts to support these fiery opinions?
Forgive me, I just discovered the more recent article which says that Mr. Pignatelli was facing indictment as a co-conspirator. I still don’t believe he necessarily violated his attorney-client privilege. How could a huge sting operation move forward on the basis of such a violation?
NSS, it doesn’t matter. Either (a) he was a coconspirator, and may or may not have violated privilege, but regardless shouldn’t be defending people in federal court because he’s dirty and the Government has a hold on him; or (b) he was not a coconspirator, violated privilege, and shouldn’t be defending people, period.
“How could a huge sting move forward on the basis of such a violation?” What’s to stop it?
What if he was no longer acting as his former client’s lawyer? If he was not actively defending him, wasn’t he free to cooperate with the authorities under strict guidelines without any violation of the attorney-client relationship?
Absolutely not. Former client, current client, doesn’t matter. The privilege belongs to the client and it doesn’t matter whether or not the client is a current client, a former client, or a deceased client.
Also, “actively defending” doesn’t really mean anything. If the client is seeking legal advice, what he tells the lawyer is privileged.
[…] Blog says the story has raised hackles among some legal bloggers. But Mark Bennett of the Defending People blog says it is possible that Pignatelli’s clients were using him to commit crimes. “In that […]
I knew both Frank Pignatelli and Chevaliee Robinson. Frank represented me in a drug trafficking case back in 2000. Chev was actually a personal friend of mine.
My question is in your professional opinion, did Chev make a mistake by actually pleading guilty to these charges instead of facing a Jury and taking his chance at an appeal? Do you think he would have had good grounds for an appeal given the fact that Frank was the main informant?
I know the damage is done and its pretty much over for Chev now but its a question I keep asking myself.
SNH, it’s a fair question, and one that I couldn’t possibly answer without being paid a hefy fee to review the evidence. This – figuring out whether a person should go to trial or plead guilty – is where criminal defense lawyers earn their keep.
If Pignatelli was (as the Government alleges) a coconspirator with Robinson, Robinson would’ve had a tough time getting Pignatelli’s testimony excluded. But, as a general principle, more people should go to trial in federal dope cases, and fewer people should plead guilty.