The Florida Bar has opened a Preliminary Investigation into whether Nevin Shapiro's attorney violated ethical rules when she used her ability to take depositions, in her Ponzi schemer client's corporate bankruptcy proceeding, to assist a third party, who might thereafter assist her in obtaining a reduced sentence for her client. If you are not familiar with this case, you should review our earlier article Watch Lawyers for Ponzi Schemers before Sentencing.
Attorneys who are looking for that elusive USSG 5K1.1 Downward Departure from the Sentencing Guidelines, or a Rule 35(b) Motion, by the Government, a year after sentencing, engage in a number of tactics, most of which are permissible under the rules of professional ethics. Some are admittedly distasteful but they do get the job done, for example:
(1) having the client wear a concealed recoding device, and obtain incriminating information for an individual, which leads to criminal charges being files.
(2) Assisting law enforcement in gathering assets of a criminal enterprise, whether in the Continental United States, or overseas.
(3) Locating a fugitive from justice, who is then apprehended by law enforcement.
(4) Conducting criminal activity, under the direct supervision of law enforcement, with the objective of engaging others in the illicit venture.
(5) Engaging private detectives to gather information of use to law enforcement in pending criminal investigations.
However, when one crosses the line, whether ethically or criminally, to gain advantage for one's client at sentencing, there should be consequences. We shall see whether this occurred in the Shapiro case. Was it a conflict of interest to work with the NCAA, who could not subpoena the witnesses, to gain a power ally, who might be of assistance in sentencing ?