Via Althouse, here's a Telegraph article about the dummy corporations that were created to help hide the truth behind Cohen's latest mockumentary film. Altman asks "wouldn't you love to do that legal work?" Of course, I immediately thought of comment [2] to Model Rule 4.1 (emphasis added):
This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.
Interesting issue, John. Would Rule 4.3 apply here as well?
Posted by: Andrew Perlman | June 15, 2009 at 12:44 PM
Did the lawyers deal directly with the deceived people (i.e., less kindly, the suckers)? Or did the lawyers just set up the dummy corporations? If it's the latter, then 4.3 might be a stretch.
Suppose the lawyers didn't interact with the unrepresented persons. Could the lawyers nonetheless "script" those interactions? Could the lawyers at least advise the non-lawyers working for Cohen as to what would constitute fraud? The analogy that seems closest is the no-contact rule, where the lawyer sometimes assists the client in devising what to say to the opposing party. Almost a good exam question.
Posted by: john steele | June 15, 2009 at 01:04 PM