Bob, for his own reasons, will want to minimize the misconduct of Fred. After all, he’s the one who contacted Fred in the first place and started down this road. Also, he’s not going to want to stir things up between friendly attorneys in a small jurisdiction.
I was addressing it more theoretically. As you say, it’s an interesting subject. Overall, it appears nothing so terrible happened that you should feel that you need to take action.
So - you think Bob reasonably believed an att/cl relationship existed between him and Fred? Both are lawyers. This impresses me as 2 persons in the same profession shooting the shit. It is hard for me to imagine an atty considering that to amount to an atty/cl related.
Of course, I thought legal ethics pretty much of a BS class when I took it, and have perceived its exercise and enforcement as pretty suspect throughout my career.
I believe somewhere I prefaced it with something like “it would depend on exactly how Bob framed it with Fred.”
Fair enough.
But I’m thinking it would require some kinda specific phrasing for it to come close.
Certainly not, “Hey, whaddya think about this situation?”
FWIW, when Bob initially spoke to us, he prefaced our conversation with some sort of language to say that he would advise us as individual board members, rather than the nonprofit entity*. I don’t recall exactly what he said (nothing was written and no financial arrangements were made) but he wanted to make that clear, I’m sure for some sort of legal reasons. Anyway, since he was at pains to establish parameters with us, even though we didn’t care one way or the other, I assume he was similarly careful in his conversations with Fred.
*That probably sounds weird, but we were told by Bob and several trust attorneys that if we didn’t try to get the money back, board members were potentially individually liable for failing to fulfill our fiduciary responsibilities on behalf of the nonprofit.
Why would Fred have bothered to warn Margaret unless he knew she’d done something wrong? Seems pretty clear taking organization funds and putting it into a trust for yourself is theft. Embezzlement.
Bob might not have known that Fred and Margaret were friends. Otherwise I’d say Bob was dumb, but Fred was shady. Might not be against the “rules” but skeevy nonetheless.
Usually, the facts complicate things and we obviously don’t know everything. Fred’s attitude might have been, “I know you didn’t do anything wrong, but they’re making some serious allegations and you might want to get a lawyer so your side can be explained and clear this up.”
Yes, clear to us. I assure you Margaret has some justification, even though it could be 100% b.s.
Spot on. Margaret didn’t set up a trust for herself, she set up an irrevocable trust that was supposed to benefit the nonprofit by investing wisely and turning over the interest to the nonprofit.
But it was a stupid idea. Even if the funds had been well invested, it wasn’t enough capital to produce more than a very modest amount of income, had all the interest been distributed each year. Also, the trust put the money into CDs with very low interest, to the point that one year, after paying their only expenses - renting a post office box and paying an accountant to file the required IRS form - they managed to run a deficit!
Finally, instead of disbursing the funds as the trust agreement required, they used the trust as an excuse to badger the current administration. While the trust document gave the trustees zero authority over the nonprofit’s operations, trustees would call the executive director in once or twice a year, make complaints and demands, and then withhold the required interest payment.
Over 12 years or so, the amount of the funds that they disbursed averaged less than 1% of the capital per year, but despite this the capital never increased because they never invested it properly.
So, Margaret didn’t take the money and create a trust for personal financial enrichment. She did so because she wanted to maintain control over the nonprofit’s operations and for purposes of self-aggrandizement. Even now her LinkedIn profile lists her as the founder and chairman of a trust that enriches the art and cultural activities of our town (or some similarly inflated and flowery nonsense).
It was enjoyable when we finally had our day in court - the judge was pretty blistering in his attack on the fact that the trust had been created.
Nonetheless, only an attorney who had read the trust agreement and knew the record of their investments and disbursements (or lack thereof) would understand that the trust was not legitimate. What Margaret did was wrong, but she didn’t embezzle, and if Fred didn’t know the details, he certainly might have thought that Margaret potentially was in the right.
(I know that’s a long post, but as you can imagine, the full story is even longer.)
May I move this toward a hypothetical at this point ?
Let’s say that Margaret had committed a crime by her actions.
Could Fred have possibly Obstructed Justice by warning his friend that somebody – even if it’s ‘just’ Trust attorneys – is looking into their activities ?
Even if … there wasn’t immediate evidence of a crime, but attorneys digging into it came to believe that one had been committed ?
[@CairoCarol 's latest posts dissuaded me from that, but early on that’s where my head was going.]
Please do! I am a bit vexed that the scenario I presented as true actually turned out not to be when I remembered the “nastygram” and checked the dates. But I feel better if it prompts a discussion that is interesting on its own merits, even as the hypothetical diverges from the known facts.
ETA: And, our attorney told us that Margaret could indeed have been criminally indicted for fraud but that the statute of limitations had elapsed by the time the current nonprofit administration came on board and started to push the matter for real.
So hypothesizing criminal conduct by Margaret is not entirely at odds with reality.
I’m skeptical. I would think that the crime continued until discovered. If it was a crime. Given your explanation of the facts, however, it doesn’t seem like a case a prosecutor would want to get involved in, even if the statute of limitations had not run.
In my opinion, (and it may be wrong) telling Margaret that she’s a suspect or under investigation is not obstruction of justice, without more. Like “and you better start shredding those bank statements.”
Yes, I may be conflating Margaret’s personal culpability with the fact that the way the trust was set up was apparently arguably fraudulent. Maybe Margaret wouldn’t have been held personally responsible - but the attorney who drew up the trust could have been? (He was the subject of a complaint to the ethics board in connection with an unrelated client; they slapped him down but didn’t disbar him. He left the state and no longer practices law. He seemed like a pretty nice guy when I contacted him with a question, though.)
You’re probably right about “a case a prosecutor would want to get involved in.” The organization’s old records are incomplete, but there are some juicy if spotty records in our archives indicating that one of the most prestigious law firms in the state was ready to bring a civil suit, but the organization decided not to because they didn’t have the cash to pay the legal bills. The minutes from meetings during that time say that they decided to “Let the AG handle it.” So it sounds like they had been told that it was a prosecutable case by the AG. In the event however, there was no action by the AG’s office. I don’t know why.
Just for fun, though, I looked up Margaret’s LinkedIn profile. Sure enough, she touts that she is the “Chair Emeritus” of our board (a title she bestowed upon herself) and (with the language tweaked just enough that you can’t find her by Googling it - I don’t want to dox her):
Founder and Chair of the unique non-profit 501 C 3 culture and arts trust, which I established to benefit the arts for posterity on Hawaii Island. Solicits donations to grow the principle from all art lovers and donors.
The truth is, the only “donation” they ever got was when someone anonymously unloaded a vacant lot on them, no doubt because it was kind of a pain to sell it and they knew it was pretty worthless. I always assumed the anonymous donation came from Margaret herself, but when the court forced the trust to turn over all their records to us, I saw that I was wrong - someone, probably a friend of Margaret’s, did donate the land parcel. When the trust got around to selling it, they cleared about $11,000. So much for all the magnificent donations from art-lovers she was going to solicit for posterity.
Lemme’ push that a step further, if I may.
If Fred – the man who knows Margaret, but with whom there is no basis to claim an attorney-client privilege – makes that same phone call, even if he doesn’t suggest she shred documents …
Meaning: does the lack of having formally established an attorney-client relationship potentially alter the liability of an attorney/person who happens to be an attorney in this scenario ?
[segue]
I also thought about the possible ongoing nature of the potential fraud, or the ‘knew or should have known’ as the point at which the statute starts running …
Just the other day (like, literally two days ago) my supervising attorney (law school clinic) told me the trick to passing the MPRE is to always select the second most ethical answer.
ETA: To me, the real question is did Bob act ethically? He was consulted for legal advice. Was he clear on whether he was taking on even a limited attorney-client relationship to that end? Did he have permission from the (client?) organization to go around relaying details of this matter to others?
I’d be mildly interested in learning what Fred’s hot take on the situation was when Bob spoke with him.
Did she really spell it “principle?”
It’s not the money; it’s the principle of the thing.
It’s been a while, and we have evidence above that my memory can lead me astray, so maybe I’m wrong. But I doubt I’m far off the mark in characterizing Fred’s advice to Bob as something like, “yeah, this trust is pretty fishy and the case against it is probably pretty strong. It would take a lot of legal resources to deal with it, though.”
Yes, she did!
Scrivener’s error.