The cover-up is always worse than the crime

By David Donovan
The Daily Record Newswire

This month marks the 40th anniversary of President Richard Nixon's resignation over the Watergate scandal. Besides producing a new president, the scandal produced a famous maxim for attorneys to heed: The cover-up is always more damaging than the underlying crime. Unfortunately, it's a lesson that attorneys often fail to take to heart.

Consider the disbarment of attorney Robert Paul Taylor. A former client had filed a complaint against Taylor with South Carolina's Office of Disciplinary Counsel alleging that Taylor made promises he didn't keep, failed to communicate with him, gave him bad advice, and failed to act diligently on his behalf.

As it turned out, the ODC found that many of the client's allegations were meritless. However, during the investigation Taylor fabricated evidence to present to the ODC in an effort to demonstrate communications with his client, providing letters that Taylor later admitted were backdated and falsified. The ODC caught the discrepancy because several letters discussed events that had not happened at the time the letters were purportedly written.

Despite the fact that many of the client's claims were meritless, Taylor was disbarred by the State Supreme Court. There was other unethical conduct discussed in the court's order, and there's no way of knowing what would have happened if Taylor had not fabricated those letters, but I have to think that he would have been more likely to keep his bar license if the ODC hadn't found evidence of a cover-up.

By far the most egregious example I've ever seen of a lawyer self-inflicting massive amounts of damage by trying to cover-up an ethics violation is a North Carolina case I reported on last November. An attorney there, Shawn David Clark, had carried on an extended sexual relationship with his client, a decision that imperiled both his bar license and his marriage. I can understand why, when the client's ex-husband learned about the affair, Clark did not view coming clean as an attractive option.

Instead, Clark forced the client to sign an affidavit lying about the affair. He threatened to divulge privileged attorney-client communications that would ensure she lost custody of her children. More chilling, Clark's legal assistant, who knew about the affair, testified that Clark threatened to kill her if she didn't lie about what she saw. (Clark claims he was only joking when he made the comment.) Ultimately, the state bar disbarred Clark, and the scandal became a bigger story in the local newspapers than it otherwise would have been - a worse outcome than what likely would have happened if Clark had fessed up at the outset.

That's two attorneys who realized serious negative consequences by not following this one simple maxim. Three, I suppose, if you count Nixon.

I would hope that, as attorneys, we would never advise one of our clients to fabricate evidence or intimidate witnesses into making false statements under oath. Not only would that violate our ethical obligations, but it would place the client at risk of an even greater punishment if they ever got caught.

Why engage in behavior you would advise a client against? I suspect it's because we assume we won't get caught. Lawyers are pretty smart, but sometimes not as smart as we think we are, and investigators are quite good at sniffing out deception. Despite how things might look at their darkest moment, honesty remains the best policy.

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Columnist David Donovan is a graduate of the University of North Carolina School of Law and a member of the North Carolina State Bar. Follow him on Twitter @SCLWDonovan

Published: Wed, Aug 20, 2014

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