The Relevance of the Duke Lacrosse Scandal

I know what you are thinking. He has gone off the deep end again. He is talking about the abuse of prosecution of some individuals—it was terrible, but what on earth does it have to do with in-house practice? Unfortunately, it is my task to tell you that it has a great deal to do with in-house practice.

The Duke situation involved a politically motivated prosecutor who undertook to destroy individual’s rights and liberties in what appeared to be the most blatant abuse of the legal system. As lawyers we all felt vindicated when the prosecutor’s credentials as a lawyer were removed. Problem solved! I am afraid not.

The Duke situation garnered widespread media attention which no doubt contributed to justice prevailing. However, everyday individuals, small businesses and large businesses are being subjected to abusive prosecution with little media attention perhaps because the prosecution derives from commercial activity and is therefore not seen as having the same importance. Tragically, prosecutorial conduct in these cases is often far more abusive than that in the Duke case, and the consequences just as personally destructive.

Equally concerning, is a judiciary, which on occasion expresses concern over the persecutor’s behavior in these commercially based prosecutions but rarely if ever holds the persecutors, often members of the United States Justice Department to same standard of accountability as we saw in the Duke case.

So who is leading the effort to expose this abuse, not the ACLU, but the Washington Legal Foundation whose well researched and documented publication, Federal Erosion of Federal Civil Liberties is a must read for every in-house lawyer. I have had the pleasure of working with WLF over my years of practice. In some of my most challenging litigation involving over zealous enforcement of regulatory legislation the WLF alone stood at our side while other free enterprise groups expressed sympathy at a distance.

I have the honor of writing the Introduction of a monograph , Attorney–Client Privilege and “Crime-Fraud Exception: The Erosion Of Business Privacy" authored by the Honorable Dick Thornburg which described in chilling detail the growing unwillingness of the judiciary to honor the attorney-client privilege in corporate prosecutions.

Over the next few blogs, I will describe some of the cases in which the WLF participated in the defense of the criminal prosecution of commercial conduct, which make the Duke situation look mild and the courts, in my opinion, unresponsive to their duty to control this conduct, and share my amazement of extent to which the criminalization of commercial behavior has permeated the regulatory area.

-Larry Salibra
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