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DC Disciplinary Counsel Hamilton Fox Won’t Let Whistleblower Lawyer Lynne Bernabei Go

Hamilton Fox is the DC Disciplinary Counsel.

His job — to protect the public and the courts from unethical conduct by members of the bar of the District of Columbia.

Lynne Bernabei

There are thousands of lawyers in Washington DC — a large number of them representing powerful corporate criminals.

But Hamilton Fox has chosen to focus significant resources on a whistleblower lawyer — Lynne Bernabei — whose client,  former in-house General Electric lawyer Adriana Koeck, blew the whistle on an alleged tax fraud scheme in Brazil.

Koeck, now Adriana Sanford, teaches at Arizona State University and sits on the board of Amnesty International. She did not return calls seeking comment.

Bernabei’s lawyers did not return calls seeking comment.

Fox’s case against Bernabei and Koeck has been going on now since June 2014, when Fox brought charges against Koeck, Bernabei and Notre Dame Law Professor G. Robert Blakey.

Fox alleged that Bernabei and Blakey advised Koeck to go to reporters and law enforcement officials in the United States with incriminating and alleged confidential information against General Electric.

The case was initiated with a complaint filed by General Electric with Fox’s office.

In November 2015, Blakey was given the mildest possible sanction in the District — an informal admonition.

On January 11, 2017, an Ad Hoc Committee of the DC Court of Appeals Board of Professional Responsibility ruled that by going to the press with internal GE information, Bernabei too should be handed the mildest possible sanction — an informal admonition — in effect a letter from Fox.

“Koeck has not participated in these proceedings,” Fox told Corporate Crime Reporter in an interview last week. “She claimed she had Post Traumatic Stress Disorder. We got an order from the court that she submit to an independent medical exam. She refused to comply. She has been temporarily suspended. If she ever sought to be readmitted to the bar, she would have the burden of proving that she is fit to practice.”

Fox says that in representing Koeck against GE, Bernabei threatened to go to the press unless GE agreed to mediation to settle Koeck’s dispute with the company.

Fox alleges that this threat interfered with the administration of justice in violation of DC Bar rules.

The Ad Hoc Hearing Committee disagreed, finding that “Disciplinary Counsel has not proven by clear and convincing evidence that Bernabei’s statement — about her ‘marching orders’ to go to the press if GE counsel did not agree to mediation” — constituted a violation. . . .We find that if the statement affected the administration of justice, it did so in a de minimis manner.”

Bernabei was willing to agree to the informal admonition and be done with it. But Fox insisted on appealing the case to the Board of Professional Responsibility.

Why did Fox accept an informal admonition for Blakley but not for Bernabei?

“We have to worry about precedent,” Fox said. “I disagree with the hearing committee’s finding that Bernabei telling a lawyer that she was going to expose her client’s client’s confidences and secrets to the press unless GE agreed to mediate was not a violation of the rules. I thought it was a violation of the rules. I couldn’t live with a ruling that said it wasn’t.”

“I also thought that the sanction of an informal admonition was a little light,” Fox said. “We recommended a censure by the court. That’s not insignificant. It’s a greater sanction if the court does it rather than me doing it in a letter. But we are not asking that she be suspended.”

The difference between an informal admonition and a public censure by the court?

“The court is a more important institution than my office,” Fox said. “Having it done by the court carries a little more weight. But it’s not as harsh as suspending her from practice.”

“The other reason we went up was we had to go up on the Koeck matter anyhow. We think the sanction is fine. But the problem is we got this ruling from the hearing committee that the disclosures made to the Department of Justice and the SEC and the government of Brazil were permitted under the rules. We think that’s wrong.”

Had they ruled your way on Koeck, you are saying you wouldn’t have gone up on Bernabei?

“I probably would have anyway,” Fox said. “I don’t think we could live with threatening to do something unethical in order to get your opponent to the negotiating table is okay.”

Did Bernabei admit to that threat?

“She admits to the conversation,” Fox said. “She denied it all along until just before the hearing. She testified at the hearing that she had her recollection refreshed and she did remember making the comment.”

Fox says that Sarah Bouchard, a partner at Morgan Lewis in Philadelphia and the lawyer for GE in the case, got a call from Bernabei.

“Sarah Bouchard was sitting on an airplane waiting to take off,” Fox said. “And Ms. Bernabei said that if GE did not agree to mediate Koeck’s unlawful dismissal case before the Department of Labor, that her marching orders were to go to the press.”

Has GE been represented in this proceeding?

“They are not a party to the proceeding,” Fox said. “We called some of their in house lawyers. They were witnesses for me.”

Fox appealed the Ad Hoc Hearing Committee’s ruling to the Board of Professional Responsibility.

Fox says that both the Ad Hoc Hearing Committees and the Board of Professional Responsibility are staffed by volunteers.

The hearing before the Board was on May 4.

How did it go?

“It’s very hard to say,” Fox said. “It’s so complicated that you don’t get to make a lot of the points you want to make. I didn’t get a feel for how they are going to come down. This is an unusual case and is quite complicated.”

Fox dismisses Koeck’s underlying claim — that she blew the whistle on alleged tax fraud in Brazil — and thus she was free to reveal confidential information to Brazilian and U.S. authorities.

Fox says that the only evidence presented in the proceedings showed that GE was not engaged in crime or fraud.

The Ad Hoc Committee disagreed.

“GE’s in-house counsel Roland Schroeder confirmed that some of the opinion letters from Brazilian counsel retained by GE — among the documents removed by Koeck —  stated that GE’s failure to pay the taxes could result in criminality,” the Ad Hoc Committee ruled.

Whistleblower lawyers believe that Fox is biased and has an agenda against them.

They point out that Fox also moved against Thomas Tamm, the Justice Department lawyer  who blew the whistle on President Bush’s warrantless wiretapping program in 2004.

They point out that when Fox was in private practice at Sutherland Asbill, he represented the Israeli spy Jonathan Pollard and that he has taught a course at Georgetown Law School titled  “Counseling the Corporation in Crisis.”

Bernabei on the other hand has throughout her career counseled whistleblowers in crisis and has represented clients that have clashed with the national security state.

Last year, whistleblower lawyer Jason Zuckerman told Corporate Crime Reporter — “there seems to be a double standard.”

“Has Bar Counsel ever prosecuted any attorneys at corporate firms that help their clients perpetrate fraud?” Zuckerman asked. “And did Bar Counsel investigate prominent lawyer executives at Fannie Mae who appear to have engaged in actions that led to a multi-billion dollar restatement and left taxpayers footing the bill? Did Bar Counsel prosecute the attorneys that enabled large banks to nearly tank the economy? And has Bar Counsel prosecuted government attorneys that enabled torture and other flagrant unlawful human rights violations? Does Bar Counsel protect the public or does it protect the interests of big corporations and big government?”

 

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