Document 522

Case 1:20-cr-00330-PAE Document 522 Filed 12/03/21 Page 1 of 2 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 December 3, 2021 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, S2 20 Cr. 330 (AJN) Dear Judge Nathan: The parties have reached an agreement in principle to a testimonial stipulation regarding the anticipated testimony of Michael Dawson. Accordingly, the parties jointly and respectfully request that the Court release Michael Dawson from his obligation to return to Court on Monday. 1 DOJ-OGR-00008212 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, Plaintiff, vs. PAUL M. DAUGERDAS, et al., Defendants. Case No. S3 09 Cr. 581 (WHP) The Honorable William H. Pauley, III DECLARATION OF STEPHEN GILLERS I, Stephen Gillers, under penalty of perjury, declare as follows: Qualifications 1. My name is Stephen Gillers. I am a law professor at New York University School of Law, where I have taught the rules and law governing lawyers and judges ("legal ethics") regularly since 1978. I am author of a leading casebook in the field, Regulation of Lawyers: Problems of Law and Ethics (9th ed. 2012). I have spoken hundreds of times on the subject of legal ethics at state and local bar associations nationwide and at American Bar Association meetings, at state and federal judicial conferences, and at law firms and corporate law offices in the United States and abroad. For more than a decade, I have been and remain active in the legal ethics work of the ABA's Center for Professional Responsibility, spending hundreds of hours yearly on this work. Most recently, I have been a member of the ABA's Ethics 20/20 Commission, a three and a half year project to review the rules of ethics governing lawyers in light of globalization and advance in technology. I have written widely in the area, including for law journals and the law and popular press. Legal ethics is the primary focus of my academic research. My resume is annexed as Exhibit A. Question Addressed And Summary Of Conclusion 2. I have been asked to address the question the Court posed on February 16, 2012 - namely, "whether the attorneys for Brune & Richard involved in this matter would have satisfied their ethical obligations if they failed to disclose the contents of the July 21 letter and their complete investigation into Juror No. 1." The question does not specify a time frame for any possible "fail[ure] to disclose." I have been asked, therefore, to address any disclosure duty in March, May, and July of 2011. I have not been asked to address, and I am not addressing, the --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, Plaintiff, vs. PAUL M. DAUGERDAS, et al., Defendants. Case No. S3 09 Cr. 581 (WHP) The Honorable William H. Pauley, III DECLARATION OF STEPHEN GILLERS I, Stephen Gillers, under penalty of perjury, declare as follows: Qualifications 1. My name is Stephen Gillers. I am a law professor at New York University School of Law, where I have taught the rules and law governing lawyers and judges ("legal ethics") regularly since 1978. I am author of a leading casebook in the field, Regulation of Lawyers: Problems of Law and Ethics (9th ed. 2012). I have spoken hundreds of times on the subject of legal ethics at state and local bar associations nationwide and at American Bar Association meetings, at state and federal judicial conferences, and at law firms and corporate law offices in the United States and abroad. For more than a decade, I have been and remain active in the legal ethics work of the ABA's Center for Professional Responsibility, spending hundreds of hours yearly on this work. Most recently, I have been a member of the ABA's Ethics 20/20 Commission, a three and a half year project to review the rules of ethics governing lawyers in light of globalization and advance in technology. I have written widely in the area, including for law journals and the law and popular press. Legal ethics is the primary focus of my academic research. My resume is annexed as Exhibit A. Question Addressed And Summary Of Conclusion 2. I have been asked to address the question the Court posed on February 16, 2012 - namely, "whether the attorneys for Brune & Richard involved in this matter would have satisfied their ethical obligations if they failed to disclose the contents of the July 21 letter and their complete investigation into Juror No. 1." The question does not specify a time frame for any possible "fail[ure] to disclose." I have been asked, therefore, to address any disclosure duty in March, May, and July of 2011. I have not been asked to address, and I am not addressing, the --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 522 Filed 12/03/21 Page 2 of 2 Respectfully submitted, DAMIAN WILLIAMS United States Attorney By: s/ Maurene Comey Alison Moe Lara Pomerantz Andrew Rohrbach Assistant United States Attorneys Southern District of New York Cc: Defense Counsel (by ECF) 2 DOJ-OGR-00008213 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 2 of 29 separate question of whether the motion for a new trial based on the conduct of juror Conrad is meritorious. That is not a question of legal ethics. 3. In summary, my opinion is that (i) the Brune & Richard lawyers had no ethical obligation to disclose the results of their March 2011 research in March, or the results of their March and May 2011 research in May; (ii) the Brune & Richard lawyers had no ethical obligation to disclose the existence or the results of their March and May research in their July 8 motion for a new trial or during the July 15 conference call with the Court; and (iii) nothing the Brune & Richard lawyers said or did in the July 8 memorandum or the July 15 conference call violated their ethical obligations. Factual Assumptions 4. I have read the following documents: --Catherine Conrad's letter to the Government dated May 25, 2011; --Defendants' Brief in Support of a New Trial dated July 8, 2011; --Transcript of Telephone Conference with Court dated July 15, 2011; --Letter from Susan Brune dated July 21, 2011; --Letter from Susan Brune dated July 29, 2011; --Affidavit of Susan Brune with Exhibits (including Catherine Conrad's jury questionnaire and voir dire responses) dated September 15, 2011; --Government's Waiver Brief dated October 7, 2011; --Defendant Parse's Waiver Brief dated October 27, 2011; and --Transcript of Hearing dated February 15 and 16, 2012. 5. My opinion is based on the cited documents and I assume as true the facts that emerge from the sworn testimony at the hearing held February 15 and 16, 2012. I note that the testimony at that hearing was subject to robust adverse direct examination by Government attorneys. General Observations And Legal Standards 6. The New York Rules of Professional Conduct (hereafter "New York Rules") specifically identify when a lawyer is obligated to disclose information to the Court. The New York Rules are incorporated in the local rules of this Court. See Southern District of New York Local Rule 1.5(b)(5). 7. Relevant here is New York Rule 3.3(a) and (b), which provides: (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 2 of 29 separate question of whether the motion for a new trial based on the conduct of juror Conrad is meritorious. That is not a question of legal ethics. 3. In summary, my opinion is that (i) the Brune & Richard lawyers had no ethical obligation to disclose the results of their March 2011 research in March, or the results of their March and May 2011 research in May; (ii) the Brune & Richard lawyers had no ethical obligation to disclose the existence or the results of their March and May research in their July 8 motion for a new trial or during the July 15 conference call with the Court; and (iii) nothing the Brune & Richard lawyers said or did in the July 8 memorandum or the July 15 conference call violated their ethical obligations. Factual Assumptions 4. I have read the following documents: --Catherine Conrad's letter to the Government dated May 25, 2011; --Defendants' Brief in Support of a New Trial dated July 8, 2011; --Transcript of Telephone Conference with Court dated July 15, 2011; --Letter from Susan Brune dated July 21, 2011; --Letter from Susan Brune dated July 29, 2011; --Affidavit of Susan Brune with Exhibits (including Catherine Conrad's jury questionnaire and voir dire responses) dated September 15, 2011; --Government's Waiver Brief dated October 7, 2011; --Defendant Parse's Waiver Brief dated October 27, 2011; and --Transcript of Hearing dated February 15 and 16, 2012. 5. My opinion is based on the cited documents and I assume as true the facts that emerge from the sworn testimony at the hearing held February 15 and 16, 2012. I note that the testimony at that hearing was subject to robust adverse direct examination by Government attorneys. General Observations And Legal Standards 6. The New York Rules of Professional Conduct (hereafter "New York Rules") specifically identify when a lawyer is obligated to disclose information to the Court. The New York Rules are incorporated in the local rules of this Court. See Southern District of New York Local Rule 1.5(b)(5). 7. Relevant here is New York Rule 3.3(a) and (b), which provides: (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 3 of 29 made to the tribunal by the lawyer; (2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 8. Also relevant is New York Rule 3.5(d), which provides: A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge. 9. Each of these rules requires knowledge on the part of the lawyer, and that knowledge must be "actual" knowledge. The standard is a subjective one. New York Rule 1.0(k) contains this definition: Knowingly, known, know, or knows denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.1 10. A leading Second Circuit case addresses the knowledge requirement. In Doe v. Grievance Committee, 847 F.2d 57 (2nd Cir. 1988), a district judge in Connecticut disciplined a lawyer who did not report his belief that an opposing witness had lied in a deposition. The Connecticut (and the New York) rule at the time required a "lawyer who receives information clearly establishing that...[a] person other than his client has perpetrated a fraud upon a tribunal clearly establishing that..." 1 I have also been asked to address the potential relevance of Rule 8.4(d) of the New York Rules, which says that a "lawyer or law firm shall not...engage in conduct that is prejudicial to the administration of justice." This rule should not be read to expand Rule 3.3's mens rea requirement of knowledge. When the New York Rules of Professional Conduct were adopted to replace the Code of Professional Responsibility, the courts chose the standard of "knowledge," the same standard as in the ABA Model Rules, to replace "clearly established," which the Second Circuit had already interpreted to mean "knowledge" (see ¶¶ 10-11 infra). When a specific and considered rule requires knowledge, another and general rule should not be interpreted to impose a duty based on a lower standard. There would be obvious notice and fairness interests implicated in doing so. DOJ-OGR-00009449 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 3 of 29 made to the tribunal by the lawyer; (2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 8. Also relevant is New York Rule 3.5(d), which provides: A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge. 9. Each of these rules requires knowledge on the part of the lawyer, and that knowledge must be "actual" knowledge. The standard is a subjective one. New York Rule 1.0(k) contains this definition: Knowingly, known, know, or knows denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.1 10. A leading Second Circuit case addresses the knowledge requirement. In Doe v. Grievance Committee, 847 F.2d 57 (2nd Cir. 1988), a district judge in Connecticut disciplined a lawyer who did not report his belief that an opposing witness had lied in a deposition. The Connecticut (and the New York) rule at the time required a "lawyer who receives information clearly establishing that...[a] person other than his client has perpetrated a fraud upon a tribunal 1 I have also been asked to address the potential relevance of Rule 8.4(d) of the New York Rules, which says that a "lawyer or law firm shall not...engage in conduct that is prejudicial to the administration of justice." This rule should not be read to expand Rule 3.3's mens rea requirement of knowledge. When the New York Rules of Professional Conduct were adopted to replace the Code of Professional Responsibility, the courts chose the standard of "knowledge," the same standard as in the ABA Model Rules, to replace "clearly established," which the Second Circuit had already interpreted to mean "knowledge" (see ¶¶ 10-11 infra). When a specific and considered rule requires knowledge, another and general rule should not be interpreted to impose a duty based on a lower standard. There would be obvious notice and fairness interests implicated in doing so. DOJ-OGR-00010128 --- PAGE BREAK --- shall promptly reveal the fraud to the tribunal." Id. at 61 (emphasis added)(quoting DR 7-102(B)(2) of the Code of Professional Responsibility). The district judge concluded that Doe had "information clearly establishing" deposition perjury because he had "clear and convincing evidence of [the] witness's perjury." Id. Doe himself testified that "he believed that [the] witness had lied at the deposition." Id. at 59. 11. Without rejecting the lower court's factual finding that Doe had clear and convincing evidence of fraud on the tribunal, the Doe Court held that "clearly establishing" required more. It held that "knowledge is required before the disclosure duty arises." Id. at 62. Clear and convincing proof, which is an objective test, did not trigger a reporting duty. That a lawyer "strongly suspected" fraud on the tribunal (a subjective test) was also insufficient. Id. at 63. As the Court noted: Our experience indicates that if any standard less than actual knowledge was adopted in this context [i.e., DR 7-102(B)(2)], serious consequences might follow. If attorneys were bound as part of their ethical duties to report to the court each time they strongly suspected that a witness lied, courts would be inundated with such reports. Court dockets would quickly become overburdened with conducting these collateral proceedings which would necessarily hold up the ultimate disposition of the underlying action. We do not believe that the Code's drafters intended to throw the court system into such a morass. Instead, it seems that the only reasonable conclusion is that the drafters intended disclosure of only that information which the attorney reasonably knows to be a fact and which, when combined with other facts in his knowledge, would clearly establish the existence of a fraud on the tribunal. To interpret the rule to mean otherwise would be to require attorneys to disclose mere suspicions of fraud which are based upon incomplete information or information which may fall short of clearly establishing the existence of a fraud. We do not suggest, however, that by requiring that the attorney have actual knowledge of a fraud before he is bound to disclose it, he must wait until he has proof beyond a moral certainty that fraud has been committed. Rather, we simply conclude that he must clearly know, rather than suspect, that a fraud on the court has been committed before he brings this knowledge to the court's attention. Id. Discipline was reversed.2 12. In an adversary legal system like ours, mandatory disclosure rules, which operate as a check on the premises of that system, receive scrutiny and debate from the courts and the bar over their proper scope. Furthermore, American jurisdictions do not all agree on how to reconcile competing interests - those of the client, the tribunal, and the adversary. New York, like most (but not all) jurisdictions, has adopted Rules 3.3 (a) and (b) in identical or substantially 2 I was the expert for Doe in the Connecticut disciplinary hearing. --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 14 of 29 Stephen Gillers PUBLICATIONS ARTICLES (continued) Ethics 131 (1999) (paper delivered at conference "Legal Ethics: Access to Justice" at Hofstra University School of Law, April 5-7, 1998). More About Us: Another Take on the Abusive Use of Legal Ethics Rules, 11 Geo. J. Legal Ethics 843 (1998). Caveat Client: How the Proposed Final Draft of the Restatement of the Law Governing Lawyers Fails to Protect Unsophisticated Consumers in Fee Agreements With Lawyers, 10 Geo. J. Legal Ethics 581 (1997). Participant, Ethical Issues Arising From Congressional Limitations on Legal Services Lawyers, 25 Fordham Urban Law Journal 357 (1998) (panel discussion). The Year: 2075, the Product: Law, 1 J. Inst. Study of Legal Ethics 285 (1996) (paper delivered on the future of the legal profession at Hofstra University Law School's conference "Legal Ethics: The Core Issues"). Getting Personal, 58 Law & Contemp. Probs. 61 (Summer/Autumn 1995) (contribution to symposium on teaching legal ethics). Against the Wall, 43 J. Legal Ed. 405 (1993) (ethical considerations for the scholar as advocate). Participant, Disqualification of Judges (The Sarokin Matter): Is It a Threat to Judicial Independence?, 58 Brooklyn L. Rev. 1063 (1993) (panel discussion). The New Old Idea of Professionalism, 47 The Record of the Assoc Bar of the City of N.Y. 147 (March 1992). The Case of Jane Loring-Kraft: Parent, Lawyer, 4 Geo. J. Legal Ethics 115 (1990). Taking L.A. Law More Seriously, 98 Yale L.J. 1607 (1989) (contribution to symposium on popular legal culture). Protecting Lawyers Who Just Say No, 5 Ga. St. L. Rev. 1 (1988) (article based on Henry J. Miller Distinguished Lecture delivered at Georgia State University College of Law). Model Rule 1.13(c) Gives the Wrong Answer to the Question of Corporate Counsel Disclosure, 1 Geo. J. Legal Ethics 289 (1987). 4 DOJ-OGR-00009460 --- PAGE BREAK --- shall promptly reveal the fraud to the tribunal. Id. at 61 (emphasis added)(quoting DR 7-102(B)(2) of the Code of Professional Responsibility). The district judge concluded that Doe had "information clearly establishing" deposition perjury because he had "clear and convincing evidence of [the] witness's perjury." Id. Doe himself testified that "he believed that [the] witness had lied at the deposition." Id. at 59. 11. Without rejecting the lower court's factual finding that Doe had clear and convincing evidence of fraud on the tribunal, the Doe Court held that "clearly establishing" required more. It held that "knowledge is required before the disclosure duty arises." Id. at 62. Clear and convincing proof, which is an objective test, did not trigger a reporting duty. That a lawyer "strongly suspected" fraud on the tribunal (a subjective test) was also insufficient. Id. at 63. As the Court noted: Our experience indicates that if any standard less than actual knowledge was adopted in this context [i.e., DR 7-102(B)(2)], serious consequences might follow. If attorneys were bound as part of their ethical duties to report to the court each time they strongly suspected that a witness lied, courts would be inundated with such reports. Court dockets would quickly become overburdened with conducting these collateral proceedings which would necessarily hold up the ultimate disposition of the underlying action. We do not believe that the Code's drafters intended to throw the court system into such a morass. Instead, it seems that the only reasonable conclusion is that the drafters intended disclosure of only that information which the attorney reasonably knows to be a fact and which, when combined with other facts in his knowledge, would clearly establish the existence of a fraud on the tribunal. To interpret the rule to mean otherwise would be to require attorneys to disclose mere suspicions of fraud which are based upon incomplete information or information which may fall short of clearly establishing the existence of a fraud. We do not suggest, however, that by requiring that the attorney have actual knowledge of a fraud before he is bound to disclose it, he must wait until he has proof beyond a moral certainty that fraud has been committed. Rather, we simply conclude that he must clearly know, rather than suspect, that a fraud on the court has been committed before he brings this knowledge to the court's attention. Id. Discipline was reversed.2 12. In an adversary legal system like ours, mandatory disclosure rules, which operate as a check on the premises of that system, receive scrutiny and debate from the courts and the bar over their proper scope. Furthermore, American jurisdictions do not all agree on how to reconcile competing interests - those of the client, the tribunal, and the adversary. New York, like most (but not all) jurisdictions, has adopted Rules 3.3 (a) and (b) in identical or substantially 2 I was the expert for Doe in the Connecticut disciplinary hearing. --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 5 of 29 identical form3 and it has also adopted Rule 3.5(d). These rules mandate disclosure of certain information to a court even if disclosure may harm the client and, for Rule 3.3 explicitly and Rule 3.5(d) implicitly, even if the information is protected as confidential client information. See New York Rule 3.3(c).4 But the duty arises only if the lawyer has “actual knowledge.” 13. A second decision also recognizes the delicate balance between the adversary system and duties to a litigation opponent or the tribunal. In re Pennie & Edmonds LLP, 323 F.3d 86 (2nd Cir. 2003) was an appeal of Rule 11 sanctions. When a party seeks Rule 11 sanctions, the target of the motion has a 21-day “safe harbor” within which to withdraw or correct the challenged submission. If it does not, the “mental state applicable to liability for Rule 11 sanctions is objective unreasonableness.” Id. at 90. When, however, a court initiates a sanction proceeding, as by order to show cause, there is no safe harbor. Because the lawyer cannot take it back, Pennie & Edmonds holds that the required mental state is “bad faith,” a subjective test like actual knowledge. The Court explained that “[a]ny regime of sanctions for a lawyer’s role in the course of representing a client inevitably has implications for the functioning of the adversary system.” Id. In support of its holding, the Court cited the interest of “[a] vigorous adversary system.” Id. at 91. 14. In sum, from the perspective of a lawyer’s ethical obligations, the premises of our “vigorous adversary system” control unless the situation is governed by an express exception in ethics rules, statutes, judicial decisions, or other law. These exceptions, which are written with appreciation of the need for precision, give lawyers notice of the duties that override their adversarial obligations. As the Supreme Court wrote in a different context in Polk County v. Dodson, 454 U.S. 312 (1981): Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are “officers of the court.” But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor “under color of state law” within the meaning of § 1983. In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing “the undivided interests of his client.” Id. at 318 (footnotes omitted). The question I turn to now is whether lawyers from Brune & Richard LLP acted in violation of any of the exceptions to their duties in the adversary system by not disclosing certain information prior to their July 21, 2011, letter to the Court. 3 See http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/3_3.authcheckdam.pdf (last visited April 5, 2012). 4 The ABA Model Rules do not contain Rule 3.5(d). In my view, its mandate appears duplicative of a lawyer’s obligations under New York and Model Rule 3.3(b). --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 15 of 29 Stephen Gillers PUBLICATIONS ARTICLES (continued) The Compelling Case Against Robert H. Bork, 9 Cardozo L. Rev. 33 (1987). Ethics That Bite: Lawyers' Liability to Third Parties, 13 Litigation 8 (Winter 1987). Can a Good Lawyer Be a Bad Person?, 84 Mich. L. Rev. 1011 (1986). Proving the Prejudice of Death-Qualified Juries After Adams v. Texas: An Essay Review of Life in the Balance, 47 Pitt. L. Rev. 219 (1985), cited in Lockhart v. McCree, 476 U.S. 162, 197, 201 (1986) (Marshall, J., dissenting). What We Talked About When We Talked About Ethics: A Critical View of the Model Rules, 46 Ohio St. L.J. 243 (1985). The Quality of Mercy: Constitutional Accuracy at the Selection Stage of Capital Sentencing, 18 U.C. Davis L. Rev. 1037 (1985). Berger Redux, 92 Yale L.J. 731 (1983) (Review of Death Penalties by Raoul Berger). Selective Incapacitation: Does It Offer More or Less?, 38 The Record of the Assoc. Bar City of N.Y. 379 (1983). Great Expectations: Conceptions of Lawyers at the Angle of Entry, 33 J. Legal Ed. 662 (1983). Perspectives on the Judicial Function in Criminal Justice (Monograph, Assoc. Bar City of N.Y., 1982). Deciding Who Dies, 129 U. Pa. L. Rev. 1 (1980) (quoted and cited as "valuable" in Spaziano v. Florida, 468 U.S. 447, 487 n.33 (1984) (Stevens, J., dissenting); also cited in Zant v. Stephens, 462 U.S. 862, 878 n.17, 879 n.19 (1983); Lockhart v. McCree, 476 U.S. 162, 191 (1986) (Marshall, J., dissenting); Callins v. Collins, 114 S.Ct. 1127, 1134 n.4 (1994) (Blackmun, J., dissenting); and Harris v. Alabama, 115 S.Ct. 1031, 1038-39 (1995) (Stevens, J., dissenting). Numerous articles in various publications, including The New York Times, The Nation, American Lawyer, The New York Law Journal, The National Law Journal, Newsday, and the ABA Journal. See below for selected bibliography. 5 DOJ-OGR-00009461 --- PAGE BREAK --- identical form3 and it has also adopted Rule 3.5(d). These rules mandate disclosure of certain information to a court even if disclosure may harm the client and, for Rule 3.3 explicitly and Rule 3.5(d) implicitly, even if the information is protected as confidential client information. See New York Rule 3.3(c).4 But the duty arises only if the lawyer has "actual knowledge." 13. A second decision also recognizes the delicate balance between the adversary system and duties to a litigation opponent or the tribunal. In re Pennie & Edmonds LLP, 323 F.3d 86 (2nd Cir. 2003) was an appeal of Rule 11 sanctions. When a party seeks Rule 11 sanctions, the target of the motion has a 21-day "safe harbor" within which to withdraw or correct the challenged submission. If it does not, the "mental state applicable to liability for Rule 11 sanctions is objective unreasonableness." Id. at 90. When, however, a court initiates a sanction proceeding, as by order to show cause, there is no safe harbor. Because the lawyer cannot take it back, Pennie & Edmonds holds that the required mental state is "bad faith," a subjective test like actual knowledge. The Court explained that "[a]ny regime of sanctions for a lawyer's role in the course of representing a client inevitably has implications for the functioning of the adversary system." Id. In support of its holding, the Court cited the interest of "[a] vigorous adversary system." Id. at 91. 14. In sum, from the perspective of a lawyer's ethical obligations, the premises of our "vigorous adversary system" control unless the situation is governed by an express exception in ethics rules, statutes, judicial decisions, or other law. These exceptions, which are written with appreciation of the need for precision, give lawyers notice of the duties that override their adversarial obligations. As the Supreme Court wrote in a different context in Polk County v. Dodson, 454 U.S. 312 (1981): Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are "officers of the court." But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor "under color of state law" within the meaning of § 1983. In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing "the undivided interests of his client." Id. at 318 (footnotes omitted). The question I turn to now is whether lawyers from Brune & Richard LLP acted in violation of any of the exceptions to their duties in the adversary system by not disclosing certain information prior to their July 21, 2011, letter to the Court. 3 See http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/3_3.authcheckdam.pdf (last visited April 5, 2012). 4 The ABA Model Rules do not contain Rule 3.5(d). In my view, its mandate appears duplicative of a lawyer's obligations under New York and Model Rule 3.3(b). DOJ-OGR-00010130 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 6 of 29 DISCUSSION Events in March 2011 15. The Brune & Richard lawyers had no duty to reveal to the court Trzaskoma's discovery of a 2010 court order suspending a Bronx lawyer with the same name as juror Conrad. None of the lawyers had knowledge that the Bronx lawyer and juror Conrad were the same person. None even had "clear and convincing" evidence or "strongly suspected" - the objective and subjective tests Doe rejected - they were the same person. Trzaskoma and Brune (who was told of the discovery though not shown the suspension order that Trzaskoma discovered but did not print) resolved to await juror Conrad's voir dire answers. Those answers, including juror Conrad's Bronxville address, directly contradicted any identity between the juror and the lawyer. This was in fact compelling. If the sworn answers were true, the juror was not the lawyer. A contrary conclusion would require the lawyers to believe that a suspended lawyer would repeatedly perjure herself in federal court in order to sit on a jury. Events in May 2011 16. Juror Conrad gave the Court a note asking if the jury was going to be instructed on vicarious liability and respondeat superior. The contents of the note led Trzaskoma, assisted by others at the firm, to take another look at the issue the next day. The 2010 suspension order and an earlier suspension order from 2007 were found. Both identified a Bronx lawyer. A paralegal discovered the Westlaw profile and forwarded it to Trzaskoma in an email that highlighted selected information. After seeing the selected information but before reviewing the entire profile, Trzaskoma wrote "Jesus, I do think it's her," but then, after reviewing the entire profile, changed her mind in light of the contradiction between the juror's voir dire answers and the limited information about lawyer Conrad (different levels of education, different addresses, etc.). In addition, Trzaskoma did not believe that the given age of the Bronx lawyer agreed with the apparent age of juror Conrad. 17. Trzaskoma discussed the issue with Brune and Edelstein later in the day. All three concluded that juror Conrad was not the suspended lawyer. Co-counsel with whom the matter was thereafter informally discussed thought the question not worth pursuing. Because the Brune & Richard lawyers did not believe - let alone have actual knowledge - that the juror and the suspended lawyer were the same person, they did not present their information to the Court. At least five lawyers, based on what they had seen or been told, reached this conclusion. 18. At this time, as earlier, no Brune & Richard lawyer had actual knowledge that juror Conrad was lawyer Conrad. Actual knowledge is the mental state that creates the disclosure duty under New York Rules 3.3(b) and 3.5(d). There was no ethical duty to reveal a suspicion, even a strong suspicion. 19. Any notion that silence was intended to preserve undetected a basis for a new trial motion in the event of conviction is belied by the lawyers' actions. There was no effort to seek a new --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 6 of 29 DISCUSSION Events in March 2011 15. The Brune & Richard lawyers had no duty to reveal to the court Trzaskoma's discovery of a 2010 court order suspending a Bronx lawyer with the same name as juror Conrad. None of the lawyers had knowledge that the Bronx lawyer and juror Conrad were the same person. None even had "clear and convincing" evidence or "strongly suspected" - the objective and subjective tests Doe rejected - they were the same person. Trzaskoma and Brune (who was told of the discovery though not shown the suspension order that Trzaskoma discovered but did not print) resolved to await juror Conrad's voir dire answers. Those answers, including juror Conrad's Bronxville address, directly contradicted any identity between the juror and the lawyer. This was in fact compelling. If the sworn answers were true, the juror was not the lawyer. A contrary conclusion would require the lawyers to believe that a suspended lawyer would repeatedly perjure herself in federal court in order to sit on a jury. Events in May 2011 16. Juror Conrad gave the Court a note asking if the jury was going to be instructed on vicarious liability and respondeat superior. The contents of the note led Trzaskoma, assisted by others at the firm, to take another look at the issue the next day. The 2010 suspension order and an earlier suspension order from 2007 were found. Both identified a Bronx lawyer. A paralegal discovered the Westlaw profile and forwarded it to Trzaskoma in an email that highlighted selected information. After seeing the selected information but before reviewing the entire profile, Trzaskoma wrote "Jesus, I do think it's her," but then, after reviewing the entire profile, changed her mind in light of the contradiction between the juror's voir dire answers and the limited information about lawyer Conrad (different levels of education, different addresses, etc.). In addition, Trzaskoma did not believe that the given age of the Bronx lawyer agreed with the apparent age of juror Conrad. 17. Trzaskoma discussed the issue with Brune and Edelstein later in the day. All three concluded that juror Conrad was not the suspended lawyer. Co-counsel with whom the matter was thereafter informally discussed thought the question not worth pursuing. Because the Brune & Richard lawyers did not believe - let alone have actual knowledge - that the juror and the suspended lawyer were the same person, they did not present their information to the Court. At least five lawyers, based on what they had seen or been told, reached this conclusion. 18. At this time, as earlier, no Brune & Richard lawyer had actual knowledge that juror Conrad was lawyer Conrad. Actual knowledge is the mental state that creates the disclosure duty under New York Rules 3.3(b) and 3.5(d). There was no ethical duty to reveal a suspicion, even a strong suspicion. 19. Any notion that silence was intended to preserve undetected a basis for a new trial motion in the event of conviction is belied by the lawyers' actions. There was no effort to seek a new --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 7 of 29 trial based on juror misconduct (nor did the firm give any consideration to that possibility) from the time of the verdict and until after receipt on June 20 of juror Conrad's letter to the prosecutor and the ensuing investigation. Events in July 2011 The July 8 Memorandum of Law 20. The memorandum does not reference the discoveries in March or May. There was no duty to do so. I accept that the Brune & Richard lawyers could anticipate a possible waiver claim and could see how the government could cite the information that they had in March and May to bolster that claim. But the lawyer ethics rules impose no general duty to volunteer information that an opponent might use to support its argument and the exceptions in the rules cited do not create one specifically.5 21. To put it otherwise, in order to find a duty to reveal there must be a source of the duty. Professional conduct rules do impose duties to reveal, but they do so in a way that gives lawyers notice of their requirements. No rule required disclosure of the information discovered in March or May. Any such rule would have to specify the information required to be revealed and the level of confidence in the accuracy of that information. Here, the rules imposing a duty to disclose to the tribunal are Rules 3.3(b) and 3.5(d). These rules use actual knowledge as the level of confidence required for the duty to disclosure. The information the lawyers had about the material they had gathered in March and May negates actual knowledge; the actions of the lawyers were consistent only with a conclusion of a lack of actual knowledge. In sum, only if the lawyers had had actual knowledge in March or May would they have had to reveal that in July, and they did not have actual knowledge. 22. In certain places, the memorandum contains statements that are apparently alleged to imply that the Brune & Richard lawyers did not have information about juror Conrad's identity prior to June 20, when they received a copy of her letter to the government. 5 Because the premises of the adversary system are central here, instruction from the contiguous world of Rule 11 is again apt: The primary purpose of Rule 11 is to deter baseless court filings, but this goal must be considered in light of the fact that, in an adversary system of litigation, the essence of the lawyer's task is to present issues of facts and law "as favorably as fairly possible" in support of the client's claim. See United Nat. Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1115 (9th Cir. 2001). Therefore, judges should "impose sanctions on lawyers for their mode of advocacy only in the most egregious situations, lest lawyers be deterred from vigorous representation of their clients." Id. (citing Schlaifer Nance & Co., Inc. v. Estates of Warhol, 194 F.3d 323, 341 (2nd Cir. 1999). Desert Outdoor Advertising, Inc. v. City of Oakland, 2009 WL 943948 at *3 (N.D. Cal. Apr. 7 2009). DOJ-OGR-00009453 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 7 of 29 trial based on juror misconduct (nor did the firm give any consideration to that possibility) from the time of the verdict and until after receipt on June 20 of juror Conrad's letter to the prosecutor and the ensuing investigation. Events in July 2011 The July 8 Memorandum of Law 20. The memorandum does not reference the discoveries in March or May. There was no duty to do so. I accept that the Brune & Richard lawyers could anticipate a possible waiver claim and could see how the government could cite the information that they had in March and May to bolster that claim. But the lawyer ethics rules impose no general duty to volunteer information that an opponent might use to support its argument and the exceptions in the rules cited do not create one specifically.5 21. To put it otherwise, in order to find a duty to reveal there must be a source of the duty. Professional conduct rules do impose duties to reveal, but they do so in a way that gives lawyers notice of their requirements. No rule required disclosure of the information discovered in March or May. Any such rule would have to specify the information required to be revealed and the level of confidence in the accuracy of that information. Here, the rules imposing a duty to disclose to the tribunal are Rules 3.3(b) and 3.5(d). These rules use actual knowledge as the level of confidence required for the duty to disclosure. The information the lawyers had about the material they had gathered in March and May negates actual knowledge; the actions of the lawyers were consistent only with a conclusion of a lack of actual knowledge. In sum, only if the lawyers had had actual knowledge in March or May would they have had to reveal that in July, and they did not have actual knowledge. 22. In certain places, the memorandum contains statements that are apparently alleged to imply that the Brune & Richard lawyers did not have information about juror Conrad's identity prior to June 20, when they received a copy of her letter to the government. 5 Because the premises of the adversary system are central here, instruction from the contiguous world of Rule 11 is again apt: The primary purpose of Rule 11 is to deter baseless court filings, but this goal must be considered in light of the fact that, in an adversary system of litigation, the essence of the lawyer's task is to present issues of facts and law "as favorably as fairly possible" in support of the client's claim. See United Nat. Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1115 (9th Cir. 2001). Therefore, judges should "impose sanctions on lawyers for their mode of advocacy only in the most egregious situations, lest lawyers be deterred from vigorous representation of their clients." Id. (citing Schlaifer Nance & Co., Inc. v. Estates of Warhol, 194 F.3d 323, 341 (2nd Cir. 1999). Desert Outdoor Advertising, Inc. v. City of Oakland, 2009 WL 943948 at *3 (N.D. Cal. Apr. 7 2009). DOJ-OGR-00010132 --- PAGE BREAK --- 23. The lawyers wrote: "The tone and content of the letter, which were in sharp contrast to the image Conrad had projected through the trial ('always head down, taking notes'), caused defendants concern and prompted them to investigate." Memorandum at 9. And they later wrote: "This is not a situation where Conrad disclosed sufficient information to warrant inquiry by counsel. Defendants had no basis to inquire whether Conrad was lying in response to each of the Court's questions." Memorandum at 32, n.13 (internal citation and parenthetical quote omitted). 24. In my opinion, these statements should be seen as true, not merely literally true in a hypertechnical or crabbed sense of the word, but true as reasonably read. They do not become untrue because a reader may draw a false inference that the lawyers did not intend. The juror's letter did cause concern and did prompt an investigation, as the first quotation in the memorandum states. That statement does not disclaim a prior search, whether that prior search is called an investigation or something else. I believe that focus on the word "investigate," which is not a term of art, would be misguided here. The sentence correctly describes what the letter caused the lawyers to do. 25. The second quote focuses on the voir dire in March and is also true as reasonably read. The lawyers had concluded that the order suspending a lawyer with the same name as juror Conrad was not a "basis" for an inquiry into the truthfulness of juror Conrad's answers. Just the opposite. Her voir dire answers, in their view, dispelled reason for inquiry. A suspended lawyer would not lie under oath at voir dire, they reasoned, given the consequences to the lawyer's ability ever to regain admission to practice. In my opinion, this conclusion was compelling. 26. It is also my opinion that the July 8, 2011, memorandum, taken as a whole, does not show a "knowing[]" violation of the provisions of Rule 3.3. It is true that even when a lawyer does not have a duty to speak, if she does speak, she may not knowingly misrepresent to a court or adversary. But an unintended inference is not a misrepresentation. The lack of disclaimer language in the memorandum's true statements - the fact that the lawyers, while focused on the new trial motion, did not anticipate what a reader might infer and what they did not mean to imply - is not an action that can support a finding of unethical behavior under the New York Rules. 27. The lawyers understandably now wish they had not included these passages as written. Greater focus might have led them to anticipate how others might read them differently than intended, and to omit them (they were unnecessary to the motion), rephrase them, or add the history of their earlier research. The July 15 Telephone Conference 28. In the July 15 telephone conference, the Court said that it wanted to "ascertain from each of the defendants ... whether any of them were aware of the disturbing things that have been revealed by defense on this motion concerning Juror Number One [Conrad]." The Court invited a response on the call or via letter. Trzaskoma's response was: Trzaskoma: We were not aware of the facts that have come to light, and I think if your Honor deems it appropriate, we can submit a letter. DOJ-OGR-00010133 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 9 of 29 The Court: All right. I do. Because I would like to make certain that any defendant who had a jury consultant on the matter also make certain that the jury consultant did not have any information on Juror Number One. Trzaskoma: The only thing additional that I would offer your Honor is—well, we can address this in a letter. I think it's more appropriate. 29. This colloquy must be read in its (rather brief) entirety, that is, as a whole. Trzaskoma's statement implies that the answer to the Court's question from Brune & Richard would not be that it had no information at all. It would not require a letter to say only that. It is, instead, clear that Trzakoma had something "additional...to offer," and chose to accept the Court's invitation to say it in a letter, which was done on July 21 in a fashion that adequately disclosed the firm's earlier research and internal communications on the subject. "The general rule is that statements must be taken in context, and that related parts of a document must be taken together. That a hasty reader might take the first paragraph out of context is not in the present circumstances enough to brand the memorandum as false." Young v. City of Providence, 404 F.3d 33, 40-41 (1st Cir. 2005) (Rule 11 appeal) (citations omitted). 30. For the reasons stated, my opinion is that the actions of the Brune & Richard lawyers throughout the trial and in the months following with respect to the information they had obtained about Catherine Conrad were entirely consistent with their responsibilities under the lawyer ethics rules. CONCLUSION Stephen Gillers DOJ-OGR-00009455 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 9 of 29 The Court: All right. I do. Because I would like to make certain that any defendant who had a jury consultant on the matter also make certain that the jury consultant did not have any information on Juror Number One. Trzaskoma: The only thing additional that I would offer your Honor is—well, we can address this in a letter. I think it's more appropriate. 29. This colloquy must be read in its (rather brief) entirety, that is, as a whole. Trzaskoma's statement implies that the answer to the Court's question from Brune & Richard would not be that it had no information at all. It would not require a letter to say only that. It is, instead, clear that Trzakoma had something "additional...to offer," and chose to accept the Court's invitation to say it in a letter, which was done on July 21 in a fashion that adequately disclosed the firm's earlier research and internal communications on the subject. "The general rule is that statements must be taken in context, and that related parts of a document must be taken together. That a hasty reader might take the first paragraph out of context is not in the present circumstances enough to brand the memorandum as false." Young v. City of Providence, 404 F.3d 33, 40-41 (1st Cir. 2005) (Rule 11 appeal) (citations omitted). 30. For the reasons stated, my opinion is that the actions of the Brune & Richard lawyers throughout the trial and in the months following with respect to the information they had obtained about Catherine Conrad were entirely consistent with their responsibilities under the lawyer ethics rules. CONCLUSION Stephen Gillers --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 10 of 29 EXHIBIT A DOJ-OGR-00010135 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 11 of 29 Stephen Gillers [January 2012] STEPHEN GILLERS Elihu Root Professor of Law (vice dean 1999-2004) New York University School of Law 40 Washington Square South New York, NY 10012 (212) 998-6264 (tel) (212) 995-4658 (fax) stephen.gillers@nyu.edu AREAS OF TEACHING Regulation of Lawyers and Professional Responsibility Evidence; Law and Literature; Media Law PRIOR COURSES Civil Procedure, Agency, Advocacy of Civil Claims, Federal Courts PUBLICATIONS BOOKS AND ANTHOLOGIES: Regulation of Lawyers: Problems of Law and Ethics (Aspen Law & Business, 9th ed., April 2012). The first edition of this popular casebook was published in 1985. Norman Dorsen was a co-author on the first two editions. Stephen Gillers is the sole author of the third through ninth editions. The first four editions were published by Little, Brown & Co., which then sold its law book publishing operation to Aspen. Regulation of Lawyers: Statutes and Standards (with Roy Simon and Andrew Perlman) (Aspen Law & Business) This is a compilation with editorial comment. The first volume was published in 1989. Updated versions have been published annually thereafter. As of the 2009 edition, Andrew Perlman has joined as a co-editor. Regulation of the Legal Profession (Aspen 2009). This is a 400+ page book in the Aspen "Essentials" series explains ethics rules and laws governing American lawyers and judges. Getting Justice: The Rights of People (Basic Books, 1971; revised paperback, New American Library, May 1973). 1 DOJ-OGR-00010136 --- PAGE BREAK --- A-5854 Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 12 of 29 Stephen Gillers PUBLICATIONS (continued) Investigating the FBI (co-Editor with P. Watters) (Doubleday, 1973; Ballantine, 1974) None of Your Business: Government Secrecy in America (co-Editor with N. Dorsen) (Viking, 1974; Penguin, 1975). I'd Rather Do It Myself: How to Set Up Your Own Law Firm (Law Journal Press, 1977). Looking At Law School: A Student Guide From the Society of American Law Teachers (editor and contributor) (Taplinger, 1977; NAL, 1977; revised ed., NAL, 1984; third ed., NAL, 1990). The Rights of Lawyers and Clients (Avon, 1979). "Four Policemen in London and Amsterdam," in R. Schrank (ed.) American Workers Abroad (MIT Press, 1979). "Dispute Resolution in Prison: The California Experience," and "New Faces in the Neighborhood Mediating the Forest Hills Housing Dispute," both in R. Goldmann (ed.) Roundtable Justice: Case Studies in Conflict Resolution (Westview Press, 1980). "The American Legal Profession," in A. Morrison (ed.), Fundamentals of American Law (Oxford University Press 1996). The Elsinore Appeal: People v. Hamlet (St. Martin's Press 1996). This book contains the text of Hamlet together with briefs and oral argument for and against affirmance of Prince Hamlet's (imaginary) murder convictions. The book arose out of a symposium sponsored by the Association of the Bar of the City of New York. "In the Pink Room," in Legal Ethics: Law Stories (D. Rhode & D. Luban, eds.) (Foundation Press, 2006) (also published as a freestanding monograph). ARTICLES: Guns, Fruit, Drugs, and Documents: A Criminal Defense Lawyer's Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011) Is Law (Still) An Honorable Profession?, 19 Professional Lawyer 23 (2009)(based on a talk at Central Synagogue in Manhattan). 2 DOJ-OGR-00010137 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 13 of 29 Stephen Gillers PUBLICATIONS ARTICLES (continued) Professional Identity: 2011 Michael Franck Award Acceptance Speech, 21 Professional Lawyer 6 (2011). Choosing and Working with Estate and Foundation Counsel to Secure an Artistic and Philanthropic Legacy, in The Artist as Philanthropist, volume 2, page 293 (The Aspen Institute Program on Philanthropy and Social Innovation 2010) Virtual Clients: An Idea in Search of a Theory (with Limits), 42 Valparaiso L. Rev. 797 (2008) (Tabor lecture). The "Charles Stimson" Rule and Three Other Proposals to Protect Lawyers From Lawyers, 36 Hofstra L. Rev. 323 (2007) A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses II, 85 Washington U. L. Rev. 215 (2007) Some Problem with Model Rule 5.6(a), Professional Lawyer (ABA 2007 Symposium Issue). Monroe Freedman's Solution to the Criminal Defense Lawyer's Trilemma Is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006) "In the Pink Room," TriQuarterly 124. Free the Lawyers: A Proposal to Permit No-Sue Promises in Settlement Agreements, 18 Georgetown J. Legal Ethics 291 (2005) (with Richard W. Painter). Lessons from the Multijurisdictional Practice Commission: The Art of Making Change, 44 Ariz. L. Rev. 685 (2002). Speak No Evil: Settlement Agreements Conditioned On Noncooperation Are Illegal and Unethical, 31 Hofstra L. Rev. 1 (2002) (reprinted at 52 Defense L.J. 769 (2003)). "If Elected, I Promise [ ]"-What Should Judicial Candidates Be Allowed to Say? 35 Ind. L. Rev. 735 (2002). Legal Ethics: Art or Theory?, 58 Annual Survey Am. L. 49 (2001). The Anxiety of Influence, 27 Fla. St. L. Rev. 123 (1999) (discussing rules that restrict multidisciplinary practice. Can a Good Lawyer Be a Bad Person? 2 J. Inst. Study of Legal 3 DOJ-OGR-00010138 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 14 of 29 Stephen Gillers PUBLICATIONS ARTICLES (continued) Ethics 131 (1999) (paper delivered at conference "Legal Ethics: Access to Justice" at Hofstra University School of Law, April 5-7, 1998). More About Us: Another Take on the Abusive Use of Legal Ethics Rules, 11 Geo. J. Legal Ethics 843 (1998). Caveat Client: How the Proposed Final Draft of the Restatement of the Law Governing Lawyers Fails to Protect Unsophisticated Consumers in Fee Agreements With Lawyers, 10 Geo. J. Legal Ethics 581 (1997). Participant, Ethical Issues Arising From Congressional Limitations on Legal Services Lawyers, 25 Fordham Urban Law Journal 357 (1998) (panel discussion). The Year: 2075, the Product: Law, 1 J. Inst. Study of Legal Ethics 285 (1996) (paper delivered on the future of the legal profession at Hofstra University Law School's conference "Legal Ethics: The Core Issues"). Getting Personal, 58 Law & Contemp. Probs. 61 (Summer/Autumn 1995) (contribution to symposium on teaching legal ethics). Against the Wall, 43 J. Legal Ed. 405 (1993) (ethical considerations for the scholar as advocate). Participant, Disqualification of Judges (The Sarokin Matter): Is It a Threat to Judicial Independence?, 58 Brooklyn L. Rev. 1063 (1993) (panel discussion). The New Old Idea of Professionalism, 47 The Record of the Assoc Bar of the City of N.Y. 147 (March 1992). The Case of Jane Loring-Kraft: Parent, Lawyer, 4 Geo. J. Legal Ethics 115 (1990). Taking L.A. Law More Seriously, 98 Yale L.J. 1607 (1989) (contribution to symposium on popular legal culture). Protecting Lawyers Who Just Say No, 5 Ga. St. L. Rev. 1 (1988) (article based on Henry J. Miller Distinguished Lecture delivered at Georgia State University College of Law). Model Rule 1.13(c) Gives the Wrong Answer to the Question of Corporate Counsel Disclosure, 1 Geo. J. Legal Ethics 289 (1987). 4 DOJ-OGR-00010139 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 15 of 29 Stephen Gillers PUBLICATIONS ARTICLES (continued) The Compelling Case Against Robert H. Bork, 9 Cardozo L. Rev. 33 (1987). Ethics That Bite: Lawyers' Liability to Third Parties, 13 Litigation 8 (Winter 1987). Can a Good Lawyer Be a Bad Person?, 84 Mich. L. Rev. 1011 (1986). Proving the Prejudice of Death-Qualified Juries After Adams v. Texas: An Essay Review of Life in the Balance, 47 Pitt. L. Rev. 219 (1985), cited in Lockhart v. McCree, 476 U.S. 162, 197, 201 (1986) (Marshall, J., dissenting). What We Talked About When We Talked About Ethics: A Critical View of the Model Rules, 46 Ohio St. L.J. 243 (1985). The Quality of Mercy: Constitutional Accuracy at the Selection Stage of Capital Sentencing, 18 U.C. Davis L. Rev. 1037 (1985). Berger Redux, 92 Yale L.J. 731 (1983) (Review of Death Penalties by Raoul Berger). Selective Incapacitation: Does It Offer More or Less?, 38 The Record of the Assoc. Bar City of N.Y. 379 (1983). Great Expectations: Conceptions of Lawyers at the Angle of Entry, 33 J. Legal Ed. 662 (1983). Perspectives on the Judicial Function in Criminal Justice (Monograph, Assoc. Bar City of N.Y., 1982). Deciding Who Dies, 129 U. Pa. L. Rev. 1 (1980) (quoted and cited as "valuable" in Spaziano v. Florida, 468 U.S. 447, 487 n.33 (1984) (Stevens, J., dissenting); also cited in Zant v. Stephens, 462 U.S. 862, 878 n.17, 879 n.19 (1983); Lockhart v. McCree, 476 U.S. 162, 191 (1986) (Marshall, J., dissenting); Callins v. Collins, 114 S.Ct. 1127, 1134 n.4 (1994) (Blackmun, J., dissenting); and Harris v. Alabama, 115 S.Ct. 1031, 1038-39 (1995) (Stevens, J., dissenting). Numerous articles in various publications, including The New York Times, The Nation, American Lawyer, The New York Law Journal, The National Law Journal, Newsday, and the ABA Journal. See below for selected bibliography. 5 DOJ-OGR-00010140 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 16 of 29 Stephen Gillers AWARDS 2011 Recipient, Michael Franck Award. Michael Franck Award from the ABA's Center for Professional Responsibility. The Award is given annually for "significant contributions to the work of the organized bar....noteworthy scholarly contributions made in academic settings, [and] creative judicial or legislative initiatives undertaken to advance the professionalism of lawyers...are also given consideration." VIDEOTAPES "Adventures in Legal Ethics and Further Adventures in Legal Ethics": videotape of thirteen dramatic vignettes professionally produced and directed and raising issues of legal ethics. Author, Producer. (1994) "Dinner at Sharswood's Café," a videotape raising legal ethics issues. Author, Producer. (1996) "Amanda Kumar's Case," a 38-minute story raising more than two dozen legal ethics issues. Author. (1998) TRIBUTES To Honorable Gus J. Solomon, printed at 749 Federal Supplement LXXXI and XCII (1991). Truth, Justice, and White Paper, 27 Harv. Civ. R. Civ. Lib. L. Rev. 315 (1992) (to Norman Dorsen). Irving Younger: Scenes from the Public Life, 73 Minn. L. Rev. 797 (1989). OTHER TEACHING Visiting Professor of Law, Harvard Law School, Winter 1988 Semester; Adjunct Professor of Law, Yeshiva University, Cardozo Law School, Spring 1986, Spring 1987, and Fall 1988 Semesters. Course: The Legal Profession. Adjunct Associate Professor of Law, Brooklyn Law School, 1976-78. 6 DOJ-OGR-00009462 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 26 of 29 Stephen Gillers 88. "The Decline and Fall of Kenneth Starr," Los Angeles Times, February 7, 1999, at M1. 89. "The Truth About Impeachment," The American Lawyer, March 1999, p. 131. 90. "The Double Standard," New York Times Book Review, March 21, 1999, at 13 (review of No Equal Justice by David Cole). 91. "Four Officers, One Likely Strategy," New York Times, Saturday, April 3, 1999, at A15. 92. "The Man in the Middle: Did George Ventura Step Over the Ethical Line?" The American Lawyer, May 1999, p. 80 (discussion of lawyer whistleblowing in light of State v. George Ventura). (Reprinted as "Whistleblower, Esq." in New York Law Journal, May 26, 1999 at page 2.) 93. "Your Client Is A Corporation - Are Its Affiliates Clients Too?" The New York Professional Responsibility Report, May 1999 , at 1. 94. "Job Talk (Scenes from the Academic Life)," The American Lawyer, July 1999, at 161. (Satire about law school hiring.) 95. "The Other Y2K Crisis," The Nation, July 26/August 2, 1999, at 4 (editorial about the year 2000 electoral races). 96. "Walking the Confidentiality Tightrope," ACCA Docket 20 (September/October 1999) (remarks at ACCA's national conference in 1998). 97. "Things Old & New - The Code Amendments," New York Professional Responsibility Report (September 1999), at 1. 98. "Clinton's Chance to Play the King," New York Times, Sept. 20, 1999 at A17. 99. "Overprivileged," American Lawyer, October 1999 at 37. (Discussion of First Amendment protection for journalists.) 100. "Controlling Conflicts Between Old and New Clients," New York Professional Responsibility Report, January 2000 at 3. 101. "How To Spank Bad Lawyers," American Lawyer, February 2000 at 41. 102. "A Weak Case, But a Brave Prosecution," New York Times, Wednesday, March 1, 2000 at A23 (the Diallo case). 103. "Conflicts of Interest in Malpractice Cases," New York Professional Responsibility Report, March 2000 at 1. 104. "The Court's Picayune Power," New York Times, Thursday, April 20, 2000 at A29. 16 DOJ-OGR-00009472 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 16 of 29 Stephen Gillers AWARDS 2011 Recipient, Michael Franck Award. Michael Franck Award from the ABA's Center for Professional Responsibility. The Award is given annually for "significant contributions to the work of the organized bar...noteworthy scholarly contributions made in academic settings, [and] creative judicial or legislative initiatives undertaken to advance the professionalism of lawyers...are also given consideration." VIDEOTAPES "Adventures in Legal Ethics and Further Adventures in Legal Ethics": videotape of thirteen dramatic vignettes professionally produced and directed and raising issues of legal ethics. Author, Producer. (1994) "Dinner at Sharswood's Café," a videotape raising legal ethics issues. Author, Producer. (1996) "Amanda Kumar's Case," a 38-minute story raising more than two dozen legal ethics issues. Author. (1998) TRIBUTES To Honorable Gus J. Solomon, printed at 749 Federal Supplement LXXXI and XCII (1991). Truth, Justice, and White Paper, 27 Harv. Civ. R. Civ. Lib. L. Rev. 315 (1992) (to Norman Dorsen). Irving Younger: Scenes from the Public Life, 73 Minn. L. Rev. 797 (1989). OTHER TEACHING Visiting Professor of Law, Harvard Law School, Winter 1988 Semester; Adjunct Professor of Law, Yeshiva University, Cardozo Law School, Spring 1986, Spring 1987, and Fall 1988 Semesters. Course: The Legal Profession. Adjunct Associate Professor of Law, Brooklyn Law School, 1976-78. 6 DOJ-OGR-00010141 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 26 of 29 Stephen Gillers 88. "The Decline and Fall of Kenneth Starr," Los Angeles Times, February 7, 1999, at M1. 89. "The Truth About Impeachment," The American Lawyer, March 1999, p. 131. 90. "The Double Standard," New York Times Book Review, March 21, 1999, at 13 (review of No Equal Justice by David Cole). 91. "Four Officers, One Likely Strategy," New York Times, Saturday, April 3, 1999, at A15. 92. "The Man in the Middle: Did George Ventura Step Over the Ethical Line?" The American Lawyer, May 1999, p. 80 (discussion of lawyer whistleblowing in light of State v. George Ventura). (Reprinted as "Whistleblower, Esq." in New York Law Journal, May 26, 1999 at page 2.) 93. "Your Client Is A Corporation - Are Its Affiliates Clients Too?" The New York Professional Responsibility Report, May 1999 , at 1. 94. "Job Talk (Scenes from the Academic Life)," The American Lawyer, July 1999, at 161. (Satire about law school hiring.) 95. "The Other Y2K Crisis," The Nation, July 26/August 2, 1999, at 4 (editorial about the year 2000 electoral races). 96. "Walking the Confidentiality Tightrope," ACCA Docket 20 (September/October 1999) (remarks at ACCA's national conference in 1998). 97. "Things Old & New - The Code Amendments," New York Professional Responsibility Report (September 1999), at 1. 98. "Clinton's Chance to Play the King," New York Times, Sept. 20, 1999 at A17. 99. "Overprivileged," American Lawyer, October 1999 at 37. (Discussion of First Amendment protection for journalists.) 100. "Controlling Conflicts Between Old and New Clients," New York Professional Responsibility Report, January 2000 at 3. 101. "How To Spank Bad Lawyers," American Lawyer, February 2000 at 41. 102. "A Weak Case, But a Brave Prosecution," New York Times, Wednesday, March 1, 2000 at A23 (the Diallo case). 103. "Conflicts of Interest in Malpractice Cases," New York Professional Responsibility Report, March 2000 at 1. 104. "The Court's Picayune Power," New York Times, Thursday, April 20, 2000 at A29. 16 DOJ-OGR-00010151 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 17 of 29 Stephen Gillers PRIOR EMPLOYMENT 1973 - 1978 Private practice of law Warner and Gillers, P.C. (1975-78) 1974 - 1978 Executive Director Society of American Law Teachers, Inc. 1971 - 1973 Executive Director, Committee for Public Justice 1969 - 1971 Associate, Paul, Weiss, Rifkind, Wharton & Garrison 1968 - 1969 Judicial Clerk to Chief Judge Gus J. Solomon, Federal District Court for the District of Oregon, Portland, Oregon SELECTED TESTIMONY Testimony on "Nomination of Sandra Day O'Connor to the Supreme Court of the United States", Hearings, before the Senate Committee on the Judiciary, 97th Congress, 1st Sess., Sept. 11, 1981. Testimony on S. 2216, "Habeas Corpus Reform Act of 1982", Hearings, before the Senate Committee on the Judiciary, 97th Congress, 2d Sess., April 1, 1982. Testimony on H.R. 5679, "Criminal Code Revision Act of 1981", Hearings, before the House of Representatives, Committee on the Judiciary, 97th Congress, 2d Sess., April 22, 1982. Testimony on S. 653, "Habeas Corpus Procedures Amendment Act of 1981", Hearings, before the Senate Committee on the Judiciary, 97th Congress, 1st Sess., November 13, 1981. Testimony on S. 8875 and A. 11279, "A Proposed Code of Evidence for the State of New York", before Senate and Assembly Codes and Judiciary Committees, February 25, 1983. Testimony before A.B.A. Commission on Women in the Profession, Philadelphia, February 6, 1988. 7 DOJ-OGR-00010142 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 18 of 29 Stephen Gillers SELECTED TESTIMONY (continued) Testimony on the nomination of William Lucas to be Assistant Attorney General for Civil Rights, before the Senate Committee on the Judiciary, 101st Congress, 1st Sess., July 20, 1989. Testimony on the nomination of Vaughn Walker to be United States District Judge for the Northern District of California, before the Senate Committee on the Judiciary, 101st Congress, 1st Sess., November 9, 1989. PUBLIC LECTURES (partial list) Tabor Lecture, Valparaiso University School of Law, April 12, 2007. This event consisted of two lectures. A public lecture was entitled "Here's the Gun: A Lawyer's Responsibility for Real Evidence." The Bench and Bar lecture, which will be published in the school's law review, is entitled "Virtual Clients: An Idea in Search of a Theory (With Limits)." Paul M. Van Arsdell, Jr., Memorial Lecture, University of Illinois, College of Law, March 7, 2005: "Do Lawyers Share Moral Responsibility for Torture at Guantanamo and Abu Ghraib?" Howard Lichtenstein Distinguished Professorship of Legal Ethics Lecture Series, "In Praise of Confidentiality (and Its Exceptions)," delivered at Hofstra University School of Law, November 12, 2003. Henry J. Miller Distinguished Lecture, Georgia State University College of Law, May 11, 1988. "Protecting Lawyers Who Just Say No." First Annual South Carolina Bar Foundation Lecture, April 9, 1992, University of South Carolina Law School, Columbia, South Carolina. "Is the Legal Profession Dead? Yearning to Be Special in an Ordinary Age." Philip B. Blank Memorial Forum on Attorney Ethics, Pace University School of Law, April 8, 1992. "The Owl and the Fox: The Transformation of Legal Work in a Commodity Culture." Speaker on Judicial Ethics, ABA Appellate Judges' Seminar and Flaschner Judicial Institute, September 29, 1993, Boston, Massachusetts. Baker-McKenzie Ethics Lecture, Loyola University Chicago School of Law, October 13, 1993, Chicago, Illinois ("Bias Issues in Legal Ethics: Two Unfinished Dramas"). The Sibley Lecture, University of Georgia School of Law, Athens, Georgia, November 10, 1993 ("Telling Stories in School: The Pedagogy of Legal Ethics"). 8 DOJ-OGR-00009464 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 18 of 29 Stephen Gillers SELECTED TESTIMONY (continued) Testimony on the nomination of William Lucas to be Assistant Attorney General for Civil Rights, before the Senate Committee on the Judiciary, 101st Congress, 1st Sess., July 20, 1989. Testimony on the nomination of Vaughn Walker to be United States District Judge for the Northern District of California, before the Senate Committee on the Judiciary, 101st Congress, 1st Sess., November 9, 1989. PUBLIC LECTURES (partial list) Tabor Lecture, Valparaiso University School of Law, April 12, 2007. This event consisted of two lectures. A public lecture was entitled "Here's the Gun: A Lawyer's Responsibility for Real Evidence." The Bench and Bar lecture, which will be published in the school's law review, is entitled "Virtual Clients: An Idea in Search of a Theory (With Limits)." Paul M. Van Arsdell, Jr., Memorial Lecture, University of Illinois, College of Law, March 7, 2005: "Do Lawyers Share Moral Responsibility for Torture at Guantanamo and Abu Ghraib?" Howard Lichtenstein Distinguished Professorship of Legal Ethics Lecture Series, "In Praise of Confidentiality (and Its Exceptions)," delivered at Hofstra University School of Law, November 12, 2003. Henry J. Miller Distinguished Lecture, Georgia State University College of Law, May 11, 1988. "Protecting Lawyers Who Just Say No." First Annual South Carolina Bar Foundation Lecture, April 9, 1992, University of South Carolina Law School, Columbia, South Carolina. "Is the Legal Profession Dead? Yearning to Be Special in an Ordinary Age." Philip B. Blank Memorial Forum on Attorney Ethics, Pace University School of Law, April 8, 1992. "The Owl and the Fox: The Transformation of Legal Work in a Commodity Culture." Speaker on Judicial Ethics, ABA Appellate Judges' Seminar and Flaschner Judicial Institute, September 29, 1993, Boston, Massachusetts. Baker-McKenzie Ethics Lecture, Loyola University Chicago School of Law, October 13, 1993, Chicago, Illinois ("Bias Issues in Legal Ethics: Two Unfinished Dramas"). The Sibley Lecture, University of Georgia School of Law, Athens, Georgia, November 10, 1993 ("Telling Stories in School: The Pedagogy of Legal Ethics"). 8 DOJ-OGR-00010143 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 19 of 29 Stephen Gillers PUBLIC LECTURES (continued) Participant, "Ethics in America" series (to be) broadcast on PBS 2007, produced by Columbia University Seminars on Media and Society. Participant, "Ethics in America" series, broadcast on PBS February and March 1989, produced by Columbia University Seminars on Media and Society. Participant, "The Constitution: That Delicate Balance, Part II" series, broadcast on PBS February and March 1992, produced by Columbia University Seminars on Media and Society. Lecturer on legal ethics and allied subjects in the U.S. and abroad at hundreds of seminars, CLE events, and conferences organized by private law firms, corporate law departments, the District of Columbia, Second, Fourth, Sixth, Ninth and Federal Circuit Judicial Conferences; American Bar Association; Federal Bar Council; New York State Judiciary; New York City Corporation Counsel; American Museum of Natural History; Practicing Law Institute; Law Journal Seminars; state, local and specialty bar associations (including in Oregon, Nebraska, Illinois, New York, New Jersey, Pennsylvania, Rhode Island, Vermont, and Georgia); corporate law departments; law schools; and law firms. LEGAL AND PUBLIC SERVICE ACTIVITIES Member, ABA 20/20 Commission, 2009- (appointed by the ABA President to study the future of lawyer regulation). Chair, American Bar Association Center for Professional Responsibility, Policy Implementation Committee, 2004-2008 (Member 2002-2010). Member, American Bar Association Commission on Multijurisdictional Practice, 2000-2002. Consultant, Task Force on Lawyer Advertising of the New York State Bar Association (2005). Retained by the New Jersey Supreme Court, in connection with the Court's review of the lawyer disciplinary system in New Jersey, to provide an "analysis of the strengths and weaknesses of California's 'centralized' disciplinary system" and to "report on the quality, efficiency, timeliness, and cost effectiveness of the California system...both on its own and compared with the system recommended for New Jersey by the Ethics Commission." Report filed December 1993. Oral presentation to the Court, March 1994. 9 DOJ-OGR-00009465 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 19 of 29 Stephen Gillers PUBLIC LECTURES (continued) Participant, "Ethics in America" series (to be) broadcast on PBS 2007, produced by Columbia University Seminars on Media and Society. Participant, "Ethics in America" series, broadcast on PBS February and March 1989, produced by Columbia University Seminars on Media and Society. Participant, "The Constitution: That Delicate Balance, Part II" series, broadcast on PBS February and March 1992, produced by Columbia University Seminars on Media and Society. Lecturer on legal ethics and allied subjects in the U.S. and abroad at hundreds of seminars, CLE events, and conferences organized by private law firms, corporate law departments, the District of Columbia, Second, Fourth, Sixth, Ninth and Federal Circuit Judicial Conferences; American Bar Association; Federal Bar Council; New York State Judiciary; New York City Corporation Counsel; American Museum of Natural History; Practicing Law Institute; Law Journal Seminars; state, local and specialty bar associations (including in Oregon, Nebraska, Illinois, New York, New Jersey, Pennsylvania, Rhode Island, Vermont, and Georgia); corporate law departments; law schools; and law firms. LEGAL AND PUBLIC SERVICE ACTIVITIES Member, ABA 20/20 Commission, 2009- (appointed by the ABA President to study the future of lawyer regulation). Chair, American Bar Association Center for Professional Responsibility, Policy Implementation Committee, 2004-2008 (Member 2002-2010). Member, American Bar Association Commission on Multijurisdictional Practice, 2000-2002. Consultant, Task Force on Lawyer Advertising of the New York State Bar Association (2005). Retained by the New Jersey Supreme Court, in connection with the Court's review of the lawyer disciplinary system in New Jersey, to provide an "analysis of the strengths and weaknesses of California's 'centralized' disciplinary system" and to "report on the quality, efficiency, timeliness, and cost effectiveness of the California system...both on its own and compared with the system recommended for New Jersey by the Ethics Commission." Report filed December 1993. Oral presentation to the Court, March 1994. 9 DOJ-OGR-00010144 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 20 of 29 Stephen Gillers LEGAL AND PUBLIC SERVICE ACTIVITIES (continued) Reporter, Appellate Judges Conference, Commission on Judicial participation in the American Bar Association, (October 1990-August 1991). Member, David Dinkins Mayoral Transition Search Committee (Legal and Law Enforcement, 1989). Member, Committee on the Profession, Association of the Bar of the City of New York (1989-1992) Member, Executive Committee of Professional Responsibility Section, Association of American Law Schools (1985-1991). Chair, 1989-90 (organized and moderated Section presentation at 1990 AALS Convention on proposals to change the ABA Code of Judicial Conduct). Counsel, New York State Blue Ribbon Commission to Review Legislative Practices in Relation to Political Campaign Activities of Legislative Employees (1987-88). Administrator, Independent Democratic Judicial Screening Panel, New York State Supreme Court (1981). Member, Departmental Disciplinary Committee, First Judicial Department (1980 - 1983). Member, Committee on Professional and Judicial Ethics, Association of the Bar of the City of New York (1979 - 1982). BAR MEMBERSHIPS STATE: New York (1968) FEDERAL: United States Supreme Court (1972); Second Circuit (1970); Southern District of New York (1970); Eastern District of New York (1970) 10 DOJ-OGR-00009466 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 20 of 29 Stephen Gillers LEGAL AND PUBLIC SERVICE ACTIVITIES (continued) Reporter, Appellate Judges Conference, Commission on Judicial participation in the American Bar Association, (October 1990-August 1991). Member, David Dinkins Mayoral Transition Search Committee (Legal and Law Enforcement, 1989). Member, Committee on the Profession, Association of the Bar of the City of New York (1989-1992) Member, Executive Committee of Professional Responsibility Section, Association of American Law Schools (1985-1991). Chair, 1989-90 (organized and moderated Section presentation at 1990 AALS Convention on proposals to change the ABA Code of Judicial Conduct). Counsel, New York State Blue Ribbon Commission to Review Legislative Practices in Relation to Political Campaign Activities of Legislative Employees (1987-88). Administrator, Independent Democratic Judicial Screening Panel, New York State Supreme Court (1981). Member, Departmental Disciplinary Committee, First Judicial Department (1980 - 1983). Member, Committee on Professional and Judicial Ethics, Association of the Bar of the City of New York (1979 - 1982). BAR MEMBERSHIPS STATE: New York (1968) FEDERAL: United States Supreme Court (1972); Second Circuit (1970); Southern District of New York (1970); Eastern District of New York (1970) 10 DOJ-OGR-00010145 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 21 of 29 Stephen Gillers LEGAL EDUCATION J.D. cum laude, NYU Law School, 1968 Order of the Coif (1968) Dean's List (1966-68) University Honors Scholar (1967-68) PRELEGAL EDUCATION B.A. June 1964, City University of New York (Brooklyn College) DATE OF BIRTH November 3, 1943 OTHER ARTICLES (Selected Bibliography 1978-present) 1. Carter and the Lawyers, The Nation, July 22-29, 1978. 2. Standing Before the Bar, Bearing Gifts, New York Times, July 30, 1978. 3. Judgeships on the Merits, The Nation, September 22, 1979. 4. Entrapment, Where Is Thy Sting?, The Nation, February 23, 1980. 5. Advice and Consent, New York Times, September 12, 1981. 6. Lawyers' Silence: Wrong . . ., New York Times, February 14, 1983. 7. The Warren Court - It Still Lives, The Nation, September 17, 1983. 8. Burger's Warren Court, New York Times, September 25, 1983. 9. "I Will Never Forget His Face!", New York Times, April 21, 1984. 10. Warren Court's Landmarks Still Stand, Newsday, July 29, 1984. 11. Von Bulow, And Other Soap Operas, New York Times, May 5, 1985. 12. Statewide Study of Sanctions Needed for Lawyers' Misconduct, New York Law Journal, June 6, 1985. 13. Preventing Unethical Behavior - Something New in Model Rules, New York Law Journal, August 30, 1985. 14. Proposed Model Rules Superior to State's Code, New York Law Journal, October 21, 1985. 11 DOJ-OGR-00009467 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 21 of 29 Stephen Gillers LEGAL EDUCATION J.D. cum laude, NYU Law School, 1968 Order of the Coif (1968) Dean's List (1966-68) University Honors Scholar (1967-68) PRELEGAL EDUCATION B.A. June 1964, City University of New York (Brooklyn College) DATE OF BIRTH November 3, 1943 OTHER ARTICLES (Selected Bibliography 1978-present) 1. Carter and the Lawyers, The Nation, July 22-29, 1978. 2. Standing Before the Bar, Bearing Gifts, New York Times, July 30, 1978. 3. Judgeships on the Merits, The Nation, September 22, 1979. 4. Entrapment, Where Is Thy Sting?, The Nation, February 23, 1980. 5. Advice and Consent, New York Times, September 12, 1981. 6. Lawyers' Silence: Wrong . . ., New York Times, February 14, 1983. 7. The Warren Court - It Still Lives, The Nation, September 17, 1983. 8. Burger's Warren Court, New York Times, September 25, 1983. 9. "I Will Never Forget His Face!", New York Times, April 21, 1984. 10. Warren Court's Landmarks Still Stand, Newsday, July 29, 1984. 11. Von Bulow, And Other Soap Operas, New York Times, May 5, 1985. 12. Statewide Study of Sanctions Needed for Lawyers' Misconduct, New York Law Journal, June 6, 1985. 13. Preventing Unethical Behavior - Something New in Model Rules, New York Law Journal, August 30, 1985. 14. Proposed Model Rules Superior to State's Code, New York Law Journal, October 21, 1985. 11 DOJ-OGR-00010146 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 22 of 29 Stephen Gillers 15. Five Ways Proposed to Improve Lawyer Discipline in New York, New York Law Journal, January 8, 1986. 16. Poor Man, Poor Lawyer, New York Times, February 28, 1986. 17. Proposals To Repair Cracks in Ethical Legal Behavior, New York Law Journal, April 17, 1986. 18. Unethical Conduct: How to Deter It Through Education, Bar Leader (May/June 1986). 19. The New Negotiation Ethics - Or Did Herb's Lawyer Do Wrong? New York Law Journal, June 2, 1986. 20. The Real Stakes in Tort Reform, The Nation, July 19-26, 1986. 21. Bernhardt Goetz: Vigilante Or Victim?, Toronto Star, September 10, 1986. 22. The Message That the Goetz Trial Will Send, Newsday, August 31, 1986. 23. Amending the Ethics Code - Solicitation, Pre-Paid Plans, Fees, New York Law Journal, November 10, 1986. 24. Amending the Ethics Code - Conflicts of Interest, Screening, New York Law Journal, November 12, 1986. 25. Amending the Ethics Code - Confidentiality and Other Matters, New York Law Journal, November 13, 1986. 26. No-Risk Arbs Meet Risk Justice, New York Times, November 23, 1986. 27. The Meese Lie, The Nation, February 21, 1987. 28. Amending State Ethics Code - Conflicts of Interest Gone Awry, New York Law Journal, May 18, 1987. 29. "The Lawyers Said It Was Legal," New York Times, June 1, 1987. 30. Feminists vs. Civil Libertarians, New York Times, November 8, 1987. 31. Lessons for the Next Round in Picking a Justice, Newsday, November 11, 1987. 32. We've Winked For Too Long, National Law Journal, December 21, 1987 (judicial membership in exclusionary clubs). 33. No More Meeses, New York Times, May 1, 1988. 34. In Search of Roy Cohn, ABA Journal, June 1, 1988 (book review). 12 DOJ-OGR-00009468 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 22 of 29 Stephen Gillers 15. Five Ways Proposed to Improve Lawyer Discipline in New York, New York Law Journal, January 8, 1986. 16. Poor Man, Poor Lawyer, New York Times, February 28, 1986. 17. Proposals To Repair Cracks in Ethical Legal Behavior, New York Law Journal, April 17, 1986. 18. Unethical Conduct: How to Deter It Through Education, Bar Leader (May/June 1986). 19. The New Negotiation Ethics - Or Did Herb's Lawyer Do Wrong? New York Law Journal, June 2, 1986. 20. The Real Stakes in Tort Reform, The Nation, July 19-26, 1986. 21. Bernhardt Goetz: Vigilante Or Victim?, Toronto Star, September 10, 1986. 22. The Message That the Goetz Trial Will Send, Newsday, August 31, 1986. 23. Amending the Ethics Code - Solicitation, Pre-Paid Plans, Fees, New York Law Journal, November 10, 1986. 24. Amending the Ethics Code - Conflicts of Interest, Screening, New York Law Journal, November 12, 1986. 25. Amending the Ethics Code - Confidentiality and Other Matters, New York Law Journal, November 13, 1986. 26. No-Risk Arbs Meet Risk Justice, New York Times, November 23, 1986. 27. The Meese Lie, The Nation, February 21, 1987. 28. Amending State Ethics Code - Conflicts of Interest Gone Awry, New York Law Journal, May 18, 1987. 29. "The Lawyers Said It Was Legal," New York Times, June 1, 1987. 30. Feminists vs. Civil Libertarians, New York Times, November 8, 1987. 31. Lessons for the Next Round in Picking a Justice, Newsday, November 11, 1987. 32. We've Winked For Too Long, National Law Journal, December 21, 1987 (judicial membership in exclusionary clubs). 33. No More Meeses, New York Times, May 1, 1988. 34. In Search of Roy Cohn, ABA Journal, June 1, 1988 (book review). 12 DOJ-OGR-00010147 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 23 of 29 Stephen Gillers 35. Do Brawley Lawyers Risk Serious Discipline?, New York Law Journal, June 22, 1988. 36. Have the Brawley Lawyers Broken the Law?, New York Times, July 2, 1988. 37. Report Demonstrates Why Meese is Unfit to Be Attorney General, Atlanta Journal and Constitution, July 24, 1988. 38. Ethical Questions for Prosecutors in Corporate-Crime Investigations, New York Law Journal, September 6, 1988. 39. Restoring Faith at Justice, National Law Journal, November 21, 1988. 40. Is Bush Repeating Rockefeller's Folly?, New York Times, September 11, 1989. 41. Standards Time, The Nation, January 29, 1990 (on the subject of legislative ethics). 42. Abused Children vs. The Bill of Rights, New York Times, August 3, 1990. 43. Words Into Deeds: Counselor, Can You Spare a Buck?, ABA Journal, November 1990. 44. Bad Apples, ABA Journal at 96 (March 1991) (book review). 45. The Gotti Lawyers and the Sixth Amendment, New York Law Journal, August 12, 1991. 46. Justice or Just Us? The Door to Dan Quayle's Courthouse Only Swings One Way, ABA Journal (June 1992) at 109. 47. Fighting Words (What was once comical is now costly), ABA Journal (August 1992) at 102. 48. Sensitivity Training: A New Way to Sharpen Your Skills At Spotting Ethics Conflicts, ABA Journal (October 1992) at 107. 49. Under Color of Law: Second Circuit Expands Section 1983 Liability for Government Lawyers, ABA Journal (December 1992) at 121. 50. Cleaning Up the S&L Mess: Courts Are Taking the Duty to Investigate Seriously, ABA Journal (February 1993) at 93. 51. All Non-Refundable Fee Agreements Are Not Created Equal, New York Law Journal (February 3, 1993) at 1. (Analyzing appellate decision prohibiting non-refundable fees.) 52. The Packwood Case: The Senate Is Also on Trial, The Nation (March 29, 1993) at 404. 53. Conflict of Laws: Real-World Rules for Interstate Regulation of Practice, ABA Journal (April 1993) at 111. 13 DOJ-OGR-00009469 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 23 of 29 Stephen Gillers 35. Do Brawley Lawyers Risk Serious Discipline?, New York Law Journal, June 22, 1988. 36. Have the Brawley Lawyers Broken the Law?, New York Times, July 2, 1988. 37. Report Demonstrates Why Meese is Unfit to Be Attorney General, Atlanta Journal and Constitution, July 24, 1988. 38. Ethical Questions for Prosecutors in Corporate-Crime Investigations, New York Law Journal, September 6, 1988. 39. Restoring Faith at Justice, National Law Journal, November 21, 1988. 40. Is Bush Repeating Rockefeller's Folly?, New York Times, September 11, 1989. 41. Standards Time, The Nation, January 29, 1990 (on the subject of legislative ethics). 42. Abused Children vs. The Bill of Rights, New York Times, August 3, 1990. 43. Words Into Deeds: Counselor, Can You Spare a Buck?, ABA Journal, November 1990. 44. Bad Apples, ABA Journal at 96 (March 1991) (book review). 45. The Gotti Lawyers and the Sixth Amendment, New York Law Journal, August 12, 1991. 46. Justice or Just Us? The Door to Dan Quayle's Courthouse Only Swings One Way, ABA Journal (June 1992) at 109. 47. Fighting Words (What was once comical is now costly), ABA Journal (August 1992) at 102. 48. Sensitivity Training: A New Way to Sharpen Your Skills At Spotting Ethics Conflicts, ABA Journal (October 1992) at 107. 49. Under Color of Law: Second Circuit Expands Section 1983 Liability for Government Lawyers, ABA Journal (December 1992) at 121. 50. Cleaning Up the S&L Mess: Courts Are Taking the Duty to Investigate Seriously, ABA Journal (February 1993) at 93. 51. All Non-Refundable Fee Agreements Are Not Created Equal, New York Law Journal (February 3, 1993) at 1. (Analyzing appellate decision prohibiting non-refundable fees.) 52. The Packwood Case: The Senate Is Also on Trial, The Nation (March 29, 1993) at 404. 53. Conflict of Laws: Real-World Rules for Interstate Regulation of Practice, ABA Journal (April 1993) at 111. 13 DOJ-OGR-00010148 --- PAGE BREAK --- Stephen Gillers 54. Packwood II, The Nation (May 10, 1993) at 617. 55. Generation Gap, ABA Journal (June 1993) at 101. (On the use of a boycott in response to the Colorado anti-gay initiative.) 56. Future Shocks, ABA Journal (August 1993) at 104. (Looking back on the practice of law in the 21st century from the year 2103.) 57. A Rule Without a Reason, ABA Journal (October 1993) at 118. (Criticism of the prohibition in Rule 5.6(b) against a lawyer agreeing not to restrict future practice in connection with a settlement.) 58. Too Old to Judge?, ABA Journal (December 1993) at 94. (Supreme Court justices have life tenure. Maybe they should not.) 59. Truth or Consequences, ABA Journal (February 1994) at 103. (Discovery obligations.) 60. "Ethical Cannons," in Symposium - Twenty Years of Change, Litigation (Fall 1993). 61. Stretched Beyond the Limit, Legal Times (March 21, 1994) at 37. (Analysis of the office of Counsel to the President in light of Bernard Nussbaum's resignation.) [Same article was reprinted in the Connecticut Law Tribune, the Fulton County (Atlanta) Daily Report, and the Recorder (San Francisco).] 62. Putting Clients First, ABA Journal (April 1994) at 111. (Discussing cases on lawyers' fiduciary duty.) 63. Grisham's Law, The Nation (April 18, 1994) at 509. (The effect of popular culture on Whitewater reporting.) 64. The Elsinore Appeal: "People v. Hamlet", New York Law Journal (October 11, 1994) at 3. (Brief for Appellee, State of Denmark). (This was a mock appeal from Hamlet's conviction for the murder of Claudius, Polonius, Ophelia, Laertes, Rosencrantz & Gildenstern, held at the Association of the Bar of the City of New York on October 11, 1994.) 65. Billing for Costs and Disbursements: What Law Firms Can Charge and Clients Can Expect, monograph published 1995 by Pitney Bowes Management Services. 66. Clinton Has A Right To Privacy, N.Y. Times, 12/21/95, at __. 67. "'Filegate' Was Bad Enough. Now This?", N.Y. Times, 7/5/96, at A23. (Article criticizing proposal to privatize certain security investigations of government personnel.) 68. "Whitewater: How to Build a Case Using a Tainted Witness," Los Angeles Times, 2/16/97, at M1. 69. "Hillary Clinton Loses Her Rights," New York Times, 5/4/97, at E15. 14 DOJ-OGR-00009470 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 24 of 29 Stephen Gillers 54. Packwood II, The Nation (May 10, 1993) at 617. 55. Generation Gap, ABA Journal (June 1993) at 101. (On the use of a boycott in response to the Colorado anti-gay initiative.) 56. Future Shocks, ABA Journal (August 1993) at 104. (Looking back on the practice of law in the 21st century from the year 2103.) 57. A Rule Without a Reason, ABA Journal (October 1993) at 118. (Criticism of the prohibition in Rule 5.6(b) against a lawyer agreeing not to restrict future practice in connection with a settlement.) 58. Too Old to Judge?, ABA Journal (December 1993) at 94. (Supreme Court justices have life tenure. Maybe they should not.) 59. Truth or Consequences, ABA Journal (February 1994) at 103. (Discovery obligations.) 60. "Ethical Cannons," in Symposium - Twenty Years of Change, Litigation (Fall 1993). 61. Stretched Beyond the Limit, Legal Times (March 21, 1994) at 37. (Analysis of the office of Counsel to the President in light of Bernard Nussbaum's resignation.) [Same article was reprinted in the Connecticut Law Tribune, the Fulton County (Atlanta) Daily Report, and the Recorder (San Francisco).] 62. Putting Clients First, ABA Journal (April 1994) at 111. (Discussing cases on lawyers' fiduciary duty.) 63. Grisham's Law, The Nation (April 18, 1994) at 509. (The effect of popular culture on Whitewater reporting.) 64. The Elsinore Appeal: "People v. Hamlet", New York Law Journal (October 11, 1994) at 3. (Brief for Appellee, State of Denmark). (This was a mock appeal from Hamlet's conviction for the murder of Claudius, Polonius, Ophelia, Laertes, Rosencrantz & Gildenstern, held at the Association of the Bar of the City of New York on October 11, 1994.) 65. Billing for Costs and Disbursements: What Law Firms Can Charge and Clients Can Expect, monograph published 1995 by Pitney Bowes Management Services. 66. Clinton Has A Right To Privacy, N.Y. Times, 12/21/95, at ___. 67. "'Filegate' Was Bad Enough. Now This?", N.Y. Times, 7/5/96, at A23. (Article criticizing proposal to privatize certain security investigations of government personnel.) 68. "Whitewater: How to Build a Case Using a Tainted Witness," Los Angeles Times, 2/16/97, at M1. 69. "Hillary Clinton Loses Her Rights," New York Times, 5/4/97, at E15. 14 DOJ-OGR-00010149 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 25 of 29 Stephen Gillers 70. "Shakespeare on Trials," IV Federal Bar Council News 16 (June 1997). 71. "Florida Backs Out On a Deal," New York Times, 10/10/97, at A23. 72. "The Perjury Loophole," New York Times, 2/18/98, at A21 (discussion of perjury in connection with Kenneth Starr's investigation of President Clinton). 73. "Any Method to Ginsburg's Madness?" Los Angeles Times, 3/15/98, at M1 (discussion of William Ginsburg's public defense of Monica Lewinsky). 74. "Whitewater Made Easy," The Nation, 6/1/98, at 8. 75. "A Highly Strategic Legal Chess Game," Los Angeles Times, June 7, 1998, at M1 (Starr-Clinton legal maneuvers). 76. "To Sleep . . . Perchance, to Dream," New York Law Journal, July 8, 1998, at 2. (Humorous article about bored jurors.) 77. "Clinton Is No Ordinary Witness," New York Times, 7/28/98, at A15. 78. "The High Cost of an Ethical Bar," The American Lawyer, July/August 1998, at 87. 79. "Clinton's Choice: Tell Truth or Dare to Gamble," Los Angeles Times, August 2, 1998, at M1. 80. "Accurate Lies: The Legal World of Oxymorons," Los Angeles Times, August 30, 1998, at M1. 81. "A Fool For a Client?" The American Lawyer, October 1998, at 74. (President Clinton's legal representation in the Lewinsky representation.) 82. "The Presidency: Out to End Clinton's Mess and Be Happy," Los Angeles Times, October 4, 1998, at M1. 83. "Protecting Their Own," The American Lawyer, November 1998, at 118. 84. "Can't We All Just Practice Together: Taking Down 'Trade Barriers' on Lawyers Here and Abroad," Legal Times, November 9, 1998, at 32. 85. "Beyond the Impeachment Spectacle." Los Angeles Times, November 22, 1998, at M1. 86. "The Perjury Precedent," New York Times, December 28, 1998, at A27. 87. "From the Same Set of Facts: A Tale of Two Stories," Los Angeles Times, January 17, 1999, at M1 (about the Clinton impeachment trial). 15 DOJ-OGR-00009471 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 25 of 29 Stephen Gillers 70. "Shakespeare on Trials," IV Federal Bar Council News 16 (June 1997). 71. "Florida Backs Out On a Deal," New York Times, 10/10/97, at A23. 72. "The Perjury Loophole," New York Times, 2/18/98, at A21 (discussion of perjury in connection with Kenneth Starr's investigation of President Clinton). 73. "Any Method to Ginsburg's Madness?" Los Angeles Times, 3/15/98, at M1 (discussion of William Ginsburg's public defense of Monica Lewinsky). 74. "Whitewater Made Easy," The Nation, 6/1/98, at 8. 75. "A Highly Strategic Legal Chess Game," Los Angeles Times, June 7, 1998, at M1 (Starr-Clinton legal maneuvers). 76. "To Sleep . . . Perchance, to Dream," New York Law Journal, July 8, 1998, at 2. (Humorous article about bored jurors.) 77. "Clinton Is No Ordinary Witness," New York Times, 7/28/98, at A15. 78. "The High Cost of an Ethical Bar," The American Lawyer, July/August 1998, at 87. 79. "Clinton's Choice: Tell Truth or Dare to Gamble," Los Angeles Times, August 2, 1998, at M1. 80. "Accurate Lies: The Legal World of Oxymorons," Los Angeles Times, August 30, 1998, at M1. 81. "A Fool For a Client?" The American Lawyer, October 1998, at 74. (President Clinton's legal representation in the Lewinsky representation.) 82. "The Presidency: Out to End Clinton's Mess and Be Happy," Los Angeles Times, October 4, 1998, at M1. 83. "Protecting Their Own," The American Lawyer, November 1998, at 118. 84. "Can't We All Just Practice Together: Taking Down 'Trade Barriers' on Lawyers Here and Abroad," Legal Times, November 9, 1998, at 32. 85. "Beyond the Impeachment Spectacle." Los Angeles Times, November 22, 1998, at M1. 86. "The Perjury Precedent," New York Times, December 28, 1998, at A27. 87. "From the Same Set of Facts: A Tale of Two Stories," Los Angeles Times, January 17, 1999, at M1 (about the Clinton impeachment trial). 15 DOJ-OGR-00010150 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 27 of 29 Stephen Gillers 105. "Some Misrepresentations Among Corporate Lawyers," New York Professional Responsibility Report, June 2000 at 1. 106. "Was Hubbell Case About Getting Justice or Getting Even?" Los Angeles Times, June 18, 2000 at M2 (comment on the U.S. Supreme Court's decision in United States v. Hubbell, decided June 5, 2000). 107. "Who Owns the Privilege After a Merger?" New York Professional Responsibility Report, July 2000 at 1. 108. "Fighting the Future," The American Lawyer, July 2000 at 55. 109. "Campus Visits Deconstructed," Newsweek: How To Get Into College, 2001 Edition at 46. 110. "The Court Should Boldly Take Charge," New York Times, Tuesday, November 21, 2000 at A25 (Florida's presidential election recount). 111. "Who Says the Election Has a Dec. 12 Deadline?" New York Times, Saturday, December 2, 2000 at A19. 112. "Motive Is Everything in the Marc Rich Pardon," New York Times, Saturday, February 17, 2001. 113. "For Justice To Be Blind, Must Judges Be Mute?" New York Times, Sunday, March 4, 2001 at Section 4, page 3. 114. "Should Supreme Court Justices Have Life Tenure?" Reprinted in The Supreme Court and Its Justices (Choper J., ed.) (ABA 2001). 115. Professionalism Symposium, 52 South Carolina L. Rev. 55 (2001) (closing remarks). 116. "No Lawyers To Call," New York Times, Monday, December 3, 2001 at A19 (ethical and constitutional obligations that will prevent lawyers from participating in military tribunals). 117. "Let Judicial Candidates Speak," New York Times, Thursday, March 28, 2002 at A31. 118. "The Flaw in the Andersen Verdict," New York Times, Tuesday, June 18, 2002 at A23. 119. "Why Judges Should Make Court Documents Public," New York Times, Saturday, November 30, 2002 at A17. 120. "It's an MJP World," ABA Journal, December 2002 at 51. 121. "Upholding the Law as Pretrial Publicity Goes Global," New York Times, Sunday, April 27, 2003, Sec. 4 at 14. 17 DOJ-OGR-00009473 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 27 of 29 Stephen Gillers 105. "Some Misrepresentations Among Corporate Lawyers," New York Professional Responsibility Report, June 2000 at 1. 106. "Was Hubbell Case About Getting Justice or Getting Even?" Los Angeles Times, June 18, 2000 at M2 (comment on the U.S. Supreme Court's decision in United States v. Hubbell, decided June 5, 2000). 107. "Who Owns the Privilege After a Merger?" New York Professional Responsibility Report, July 2000 at 1. 108. "Fighting the Future," The American Lawyer, July 2000 at 55. 109. "Campus Visits Deconstructed," Newsweek: How To Get Into College, 2001 Edition at 46. 110. "The Court Should Boldly Take Charge," New York Times, Tuesday, November 21, 2000 at A25 (Florida's presidential election recount). 111. "Who Says the Election Has a Dec. 12 Deadline?" New York Times, Saturday, December 2, 2000 at A19. 112. "Motive Is Everything in the Marc Rich Pardon," New York Times, Saturday, February 17, 2001. 113. "For Justice To Be Blind, Must Judges Be Mute?" New York Times, Sunday, March 4, 2001 at Section 4, page 3. 114. "Should Supreme Court Justices Have Life Tenure?" Reprinted in The Supreme Court and Its Justices (Choper J., ed.) (ABA 2001). 115. Professionalism Symposium, 52 South Carolina L. Rev. 55 (2001) (closing remarks). 116. "No Lawyers To Call," New York Times, Monday, December 3, 2001 at A19 (ethical and constitutional obligations that will prevent lawyers from participating in military tribunals). 117. "Let Judicial Candidates Speak," New York Times, Thursday, March 28, 2002 at A31. 118. "The Flaw in the Andersen Verdict," New York Times, Tuesday, June 18, 2002 at A23. 119. "Why Judges Should Make Court Documents Public," New York Times, Saturday, November 30, 2002 at A17. 120. "It's an MJP World," ABA Journal, December 2002 at 51. 121. "Upholding the Law as Pretrial Publicity Goes Global," New York Times, Sunday, April 27, 2003, Sec. 4 at 14. 17 DOJ-OGR-00010152 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 28 of 29 Stephen Gillers 122. "Court-Sanctioned Secrets Can Kill," Los Angeles Times, Wednesday, May 14, 2003 (reprinted May 15, 2003 in Newsday). 123. "Make a List," New York Times, June 11, 2003 at 31 (advocating changes in the methods of judicial selection). 124. "Conflicted About Martha?" American Lawyer (September 2003) (analysis of Martha Stewart indictment). 125. "The Prudent Jurist," Legal Affairs, January/February 2004. 126. "On Knowing the Basic Rules of Advocacy," New York Times, February 8, 2004, Sec. 4 at 2 (cross-examination in the Martha Stewart trial). 127. "The Prudent Jurist," Legal Affairs, March/April 2004. 128. "Scalia's Flawed Judgment," The Nation, April 19, 2004 at 21. 129. "Scholars, Hucksters, Copycats, Frauds," Washington Post, April 25, 2004 at B3 (Outlook) (discussion of ethics of academics who put their names on newspaper opinion pieces written by industry). 130. "The Prudent Jurist," Legal Affairs, May/June 2004 at 17. 131. "Multijurisdictional Practice of Law: Merging Theory With Practice," 73 The Bar Examiner 28 (May 2004). 132. "Tortured Reasoning," American Lawyer (July 2004) (analysis of government lawyer memos addressing the application of various treaties and laws to the treatment of Afghan prisoners). 133. "Paying the Price of a Good Defense," New York Times, August 13, 2004. 134. "Improper Advances: Talking Dream Jobs with the Judge Out of Court," Slate.com, August17, 2005 (with D. Luban and S. Lubet). 135. "Roberts' Bad Decision," Los Angeles Times, September. 13, 2005 (with D. Luban and S. Lubet). 136. "No Privilege for Miers," The Nation, November 7, 2005 137. "Senators, Don't Rubber-Stamp," USA Today, January 5, 2006 at 13A (discussing the Senate's advise and consent responsibility in connection with Alito nomination). 138. Ethics Column, American Lawyer, page 61 (January 2006) (with Deborah Rhode). 139. Ethics Column, American Lawyer, page 63 (April 2006) (with Deborah Rhode). 18 DOJ-OGR-00009474 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 28 of 29 Stephen Gillers 122. "Court-Sanctioned Secrets Can Kill," Los Angeles Times, Wednesday, May 14, 2003 (reprinted May 15, 2003 in Newsday). 123. "Make a List," New York Times, June 11, 2003 at 31 (advocating changes in the methods of judicial selection). 124. "Conflicted About Martha?" American Lawyer (September 2003) (analysis of Martha Stewart indictment). 125. "The Prudent Jurist," Legal Affairs, January/February 2004. 126. "On Knowing the Basic Rules of Advocacy," New York Times, February 8, 2004, Sec. 4 at 2 (cross-examination in the Martha Stewart trial). 127. "The Prudent Jurist," Legal Affairs, March/April 2004. 128. "Scalia's Flawed Judgment," The Nation, April 19, 2004 at 21. 129. "Scholars, Hucksters, Copycats, Frauds," Washington Post, April 25, 2004 at B3 (Outlook) (discussion of ethics of academics who put their names on newspaper opinion pieces written by industry). 130. "The Prudent Jurist," Legal Affairs, May/June 2004 at 17. 131. "Multijurisdictional Practice of Law: Merging Theory With Practice," 73 The Bar Examiner 28 (May 2004). 132. "Tortured Reasoning," American Lawyer (July 2004) (analysis of government lawyer memos addressing the application of various treaties and laws to the treatment of Afghan prisoners). 133. "Paying the Price of a Good Defense," New York Times, August 13, 2004. 134. "Improper Advances: Talking Dream Jobs with the Judge Out of Court," Slate.com, August17, 2005 (with D. Luban and S. Lubet). 135. "Roberts' Bad Decision," Los Angeles Times, September. 13, 2005 (with D. Luban and S. Lubet). 136. "No Privilege for Miers," The Nation, November 7, 2005 137. "Senators, Don't Rubber-Stamp," USA Today, January 5, 2006 at 13A (discussing the Senate's advise and consent responsibility in connection with Alito nomination). 138. Ethics Column, American Lawyer, page 61 (January 2006) (with Deborah Rhode). 139. Ethics Column, American Lawyer, page 63 (April 2006) (with Deborah Rhode). 18 DOJ-OGR-00010153 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 29 of 29 Stephen Gillers 140. "Bush Postpones 2008 Election," The Nation, August 14/21, 2006 (satire). 141. "Free the Ulysses Two: Joyce's First U.S. Publishers Were Convicted of Obscenity. It's Time to Clear Them." The Nation, February 19, 2007. 142. "Twenty Years of Legal Ethics: Past, Present, and Future," 20 Georgetown J. Legal Ethics 321 (2007) (symposium celebrating the 20th anniversary of the journal). 143. "The Torture Memos," The Nation, April 28, 2008. 144. "Bar None," American Lawyer (October 2008) (globalization of law practice and how it will effect regulation of the bar). 19 DOJ-OGR-00009475 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 29 of 29 Stephen Gillers 140. "Bush Postpones 2008 Election," The Nation, August 14/21, 2006 (satire). 141. "Free the Ulysses Two: Joyce's First U.S. Publishers Were Convicted of Obscenity. It's Time to Clear Them." The Nation, February 19, 2007. 142. "Twenty Years of Legal Ethics: Past, Present, and Future," 20 Georgetown J. Legal Ethics 321 (2007) (symposium celebrating the 20th anniversary of the journal). 143. "The Torture Memos," The Nation, April 28, 2008. 144. "Bar None," American Lawyer (October 2008) (globalization of law practice and how it will effect regulation of the bar). 19 DOJ-OGR-00010154 --- PAGE BREAK --- Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 11 of 29 Stephen Gillers [January 2012] STEPHEN GILLERS Elihu Root Professor of Law (vice dean 1999-2004) New York University School of Law 40 Washington Square South New York, NY 10012 (212) 998-6264 (tel) (212) 995-4658 (fax) stephen.gillers@nyu.edu AREAS OF TEACHING Regulation of Lawyers and Professional Responsibility Evidence; Law and Literature; Media Law PRIOR COURSES Civil Procedure, Agency, Advocacy of Civil Claims, Federal Courts PUBLICATIONS BOOKS AND ANTHOLOGIES: Regulation of Lawyers: Problems of Law and Ethics (Aspen Law & Business, 9th ed., April 2012). The first edition of this popular casebook was published in 1985. Norman Dorsen was a co-author on the first two editions. Stephen Gillers is the sole author of the third through ninth editions. The first four editions were published by Little, Brown & Co., which then sold its law book publishing operation to Aspen. Regulation of Lawyers: Statutes and Standards (with Roy Simon and Andrew Perlman) (Aspen Law & Business) This is a compilation with editorial comment. The first volume was published in 1989. Updated versions have been published annually thereafter. As of the 2009 edition, Andrew Perlman has joined as a co-editor. Regulation of the Legal Profession (Aspen 2009). This is a 400+ page book in the Aspen "Essentials" series explains ethics rules and laws governing American lawyers and judges. Getting Justice: The Rights of People (Basic Books, 1971; revised paperback, New American Library, May 1973). 1 DOJ-OGR-00009457