Foreign fee scammers
target U.S. lawyers
By Diane Karpman
A major truth of the legal
profession is that while we were upstairs studying torts, some of our clients
were on the streets studying crime. Some of our clients are actually
sophisticated criminals. We sort of want to forget that, often to our own
disadvantage.
Each and every day, I expect to
receive a friendly email soliciting my services because a citizen from another
county is attempting to collect alimony, a contract claim or whatever the scam
du jour is. It’s gotten to the point that unless I know the sender, I delete
any foreign solicitation for employment.
The generic Nigerian
Mail Scam is now on steroids. It has
become extremely sophisticated, therefore causing more law firms and lawyers to
fall prey. The current scam targets U.S. law firm trust accounts. Sidebar — anything
involving trust accounts is automatically toxic, and should be considered
radioactive.
Here is the scam: Prospective
client contacts lawyer via email for help in the recovery of funds owed by an
American-based company from a real estate transaction, divorce settlement or
whatever. Basically, prospective client needs legal assistance in the
collection of a debt. Asian names are being used and the bank accounts are in Singapore,
Japan and China. The lawyer is offered a generous legal fee, but this is an
intricate web which mimics the steps of a genuine debt collection procedure.
Within days, a large check is sent to the lawyer/firm. Knowing the level of
suspicion in the legal community, a master forger creates a perfect copy of a
real company check, including the company phone number and a representative to
be contacted. When called, the “company spokesperson” verifies the check. What
the lawyer doesn’t know is that the person contacted is another cog in this
scam machinery. The lawyer puts the funds in the trust account, takes his
$50,000 fee and forwards the remaining amount to the designated bank account.
The money is immediately removed from the trust account by the fraudsters
before the check bounces.
According to federal court
documents, one group of scammers obtained $29 million from 70 different law
firm trust accounts in the U.S. and Canada during a two-year period. An international investigation is being conducted by the U.S. Postal Service, the FBI, the Secret Service,
Toronto Police Services, the Royal Canadian Mounted Police and the Nigerian
Economic and Financial Crimes Commission.
Last week at an ethics
committee meeting, we discussed the typical Nigerian scam. One member said that
his firm forwards these emails to the authorities. Other members cautioned that
this should not be done, because it could be a communication from a prospective
client. Remember, even if you are not retained, a lawyer owes a duty of
confidentially to a prospective client regarding his or her disclosed
information. (See Los Angeles County Bar Association Ethics Op. No. 506). This resulted
in a long and heated discussion. These ethics committees, which exist all over
the state are terrific for ethics nerds, especially if you want to debate how
many angels can dance on the head of a pin. They are actually fun and very
interesting.
Evan Jenness (a terrific
defense lawyer and president of the Federal Bar Association) shared a number of
authorities that indicate that an unsolicited email is not confidential: San
Diego County Bar Association No. 2006-1,
Bar of the City of NY 2001-1, State of Nevada Opn. 32 and others.
Another idea expressed was
the principle that a client cannot unilaterally create an attorney-client
relationship. There must be some level of mutuality. In addition, of course, it
must involve legal issues, because not everything said to a lawyer is an
“attorney-client communication.”
Step back and imagine the
state of affairs if any unsolicited email could give rise to ethical
obligations. What a nightmare!
Legal ethics expert Diane
Karpman can be contacted at 310 887-3900 or karpethics@aol.com.