When the Internet first came upon us, one of its attractive qualities was the anonymity it provided. After all, the law has a long tradition of protecting the anonymous pamphleteer. But as it turns out, the Internet isn't that private. Or is it?
Turn the clock back to 1985. Classified advertising was a substantial source of revenue for newspapers. Free weeklies carried ads as well--but the ads were, for the most part, paid for by the advertiser. It was possible to place anonymous classified ads--the newspapers provided a confidential address. This business model was so lucrative that newspapers were valued in the hundreds of millions of dollars.
Who would have thought that one person, coding in a bedroom, could destroy classified advertising? But it happened--Craig Newmark's mailing list eventually destroyed the newspapers' cash cow.
Combining Craigslist with Internet anonymity carries both benefits and drawbacks. Not only is it possible to find a date on the Internet, you can also sell stolen goods. In either case, the advertiser may wish to protect his anonymity. Bicycle thieves would prefer not to stick around after the sale. Users of Craigslist rely on the promise of anonymity. But how trustworthy is that promise?
As it turns out, not very.
Attorneys get disciplined for all sorts of reasons. Sometimes the misbehavior is so egregious that attorneys lose their license to practice law. Despite the fact that the head of the Florida Bar's substance abuse program is himself a drug felon who was disbarred and only later re-admitted after rehabilitation, the trend now is towards permanent license revocation.
"Rehabilitation" has, in the eyes of the Bar, become nearly impossible. This position is difficult to understand. Perhaps this is due to the fact that the Internet doesn't know how to forget. Perhaps it is due to the fact that rehabilitation is no longer the primary purpose of incarceration. But whatever the reason, attitudes have indeed changed.
Time was, a disbarred attorney could maintain hope of readmission. One of the requirements for readmission was a showing that the attorney had been rehabilitated and was no longer likely to engage in the conduct that led to disbarment. But that was not all. Another requirement was that the attorney stay current with the law and prove that he had done so. The most common way for disbarred attorneys to stay current was to work as a law clerk or a paralegal in a law office.
Such employment was beneficial for both the disbarred attorney and the law firm--the law firm would get the services of a (hopefully) experienced attorney on the cheap and the disbarred attorney could continue to read the law. Over time, addictions can be conquered.
Attorneys who once suffered from substance abuse problems can and do go on to provide valuable public service. Broward County's distinguished Public Defender was once suspended from practice because of these issues but won his license back. Is it wrong to urge those who have fallen to emulate him?
What does this have to do with Craigslist? Well, imagine advertising for the services of a disbarred lawyer in Craigslist's "help wanted" section. Such an ad can be placed anonymously. Imagine inviting disbarred attorneys to apply in the hopes of helping them seek rehabilitation.
Imagine, then, getting a letter from the organized bar complaining about your ad. The one you thought was private?
Would you be surprised to learn that Craigslist disclosed your identity? You would hope, of course, that Craigslist would disclose the identities of the bicycle thieves. But if anonymity on Craigslist is fictitious, Craig should alert his users.
He hasn't. So I will.
On August 25th, Alan Koslow, a prominent Broward County Florida lawyer and a recently-resigned partner at Becker & Poliakoff, pled guilty to federal charges in a case that asks more questions than it answers.
A federal investigation that has been proceeding for three years--against whom? for what?--took down a lawyer who was an expert on gambling law and the "go-to" guy for those with gambling interests. The crime that Koslow committed was manufactured, that is, he was asked by the FBI to park the non-existent proceeds of a non-existent illegal gambling operation. As lagniappe, he was told that some of the money came from non-existent sales of non-existent counterfeit pharmaceuticals through a friend's business account.
The amount in question was alleged to have been $200,000, but this amount can be whatever you want it to be since, after all, it doesn't exist. It is a common law enforcement practice to ratchet up the charges to be faced by a defendant by increasing the pretend amounts transacted. Ask an undercover DEA agent for a pretend pound of cocaine (453 grams) and he'll suggest you take a pretend half kilo, knowing full well that aggravated federal penalties kick in for any amount over 500 grams.
Koslow was paid $8500 to engage in this make-believe. He didn't launder money because there was no money to launder. This isn't even the going rate (5%) for laundering money. A lawyer working at Kaslow's level could easily bill $400 per hour. This would translated into a little more than 20 hours of billable time.
There is no allegation that Koslow was a major South Florida money launderer. The reason we know this is that he was charged only with the made-up crime. There was no allegation that Koslow was involved in the illegal gambling operation because there was no illegal gambling operation. Nor was there an allegation that he was part of a conspiracy to sell counterfeit pharmaceuticals. The counterfeit pharmaceuticals never existed. There was no take-down of Koslow's irregular "banking" clients.
So why was Koslow targeted? And why did it take three years for the grand jury to get around to issuing an indictment? Why indeed?
It is ridiculous to believe that Alan Koslow, a partner at the business law firm of Becker & Poliakoff, was using the firm's trust account--he apparently didn't have one of his own--to launder fantasy funds. There have been no arrests of Sinaloa cartel operatives with links to Koslow nor a takedown of a pill pressing operation.
Two possibilities are likely.
The first is that the FBI is interested in one of Koslow's clients. It is difficult to pursue a client through his lawyer, but the FBI has done it before. Few knew that General Manuel Noriega's first lawyer, Raymond Takiff, was a documented government informant even while working on the General's case. Tariff never bothered to tell the General of this outrageous conflict of interest and eventually even the prosecutors in Miami put an end to the charade. Noriega's new lawyers complained but nothing came of it. Washington wanted a conviction to justify the illegal invasion of Panama and no government employee had the courage to stand in their way.
Alan Koslow is a cocaine user. This is not entirely surprising given the easy access to the drug in South Florida. It is unlikely that the FBI was supplying Koslow--though certainly not impossible--but very likely they learned of Koslow's drug use from whomever regularly supplied him. I think it is fair to say that a regular cocaine user's judgment is impaired. If the FBI used this impairment in order to manufacture a crime to ensnare Koslow they should be ashamed.
But I don't think that is what was going on.
Arresting a regular cocaine user is easy, perhaps too easy. If this were merely a drug bust they could have arrested Koslow after their informant made a sale; they could have urged that Koslow buy just a little more than a pound of cocaine so that they could have portrayed him as a dealer. But the FBI didn't do this either. This suggests that the drug squad was not running things. Someone else was the show runner.
It was only last year that Anthony "Big Tony" Moscatiello was convicted for ordering the contract killing of Gus Boulis in 2001. Boulis, the founder of the restaurant franchise Miami Subs, had started gambling "cruises to nowhere" on ships that sailed out of Dania Beach. Boulis, a Greek national, could not legally own U.S.-flagged ships and so sold the operation to interests led by Jack Abramoff, a lobbyist for Florida business law firm Greenberg Traurig. Abramoff was intimately involved with the gaming industry as a lobbyist. He moved in the same circles as Koslow.
But the Boulis case has been solved. The perpetrators of his murder are dead or in prison. Abramoff was not accused of the murder, but went to prison for fraud related to the sale of Suncruz. Koslow can not have been the FBI's real target. So who was? Moreover, what has Koslow been doing for the past three years during this investigation?
More likely than not, he was trying to provide what is called "substantial assistance" to the FBI. This means wearing a wire, having conferences in bugged rooms and informing on your clients.
Now that Koslow has revealed his role, what is the obligation of Becker and Poliakoff--and any other firm in a similar situation--where one of its lawyers has been informing on clients? Is there an ethical duty to say, "the conversations you think were confidential and covered by the attorney-client privilege were in fact recorded by a government informant?" Whenever a non-lawyer third-party is present during attorney-client communications the privilege is lost. Making a tape of, or letting someone listen to the conversation has the same effect.
Koslow doesn't care because even though he only committed a make-believe felony he will lose his law license. He wants to stay out of jail. But Becker & Poliakoff is still in business. Does the government have an obligation to alert a law firm that its client communications are no longer covered by the attorney-client privilege?
Since in consulting with Koslow these clients thought they were paying an attorney and their inquiries covered by the attorney-client privilege, will their money be refunded?
One thing for certain: any Becker & Poliakoff client who worked with Koslow should be concerned. Koslow's friends should be concerned. Innocent or not, involved or not, it is almost a certainty that while Koslow's crime may have been make-believe, his violation of the attorney-client privilege during the past three years was real.
While it should be obvious, the opinions and commentary set forth above are those of the author and no other person.
2018 Update: We now know that Koslow and Takiff weren't the only prominent lawyers to tape their clients. Michael Cohen, President Trump's lawyer, also engaged in surreptitious taping. The tapes have been given to the Special Prosecutor.