Exposing Abramoff’s Playbook: Exploiting, or Filling, the Ethical Void for Tribal Lawyers Gabriel S. Galanda∗ Galanda Broadman, PLLC 16th Annual Indian Law Conference, Federal Bar Association Washington, DC November 14, 2014 "We do a recall, election and take over. Let's discuss." – Jack Abramoff, February 14, 2002 In professional sports “the playbook is a sacred hardbound diary of trust. It's an accumulation of decades' worth of knowledge, tweaked and perfected, sectioned off by scribbles and colored tabs.” Looming large in Indian Country right now, there’s another kind of playbook; a dark one. The plays were originally designed by Jack Abramoff during his infamous stint at Ysleta Del Sur, Coushatta and Saginaw Chippewa. For the last two decades, Casino Jack’s playbook has been enhanced with the knowledge of other lawyers, lobbyists and executives, especially those in the Indian gaming industry. Reputed national law firms and Indian law practice groups, and even Native lawyers and Native-‐owned law firms, are now picking up and deploying the playbook. The plays are shrewdly designed to divide and conquer Tribal Councils and communities from within, while federal trustees stand on the sidelines. The first few plays are as scripted as an NFL team’s opening drive. These plays are largely unethical. This paper explains how. As state ethics laws are arguably inapplicable in Indian Country—or at least state bar associations are averse to get involved in “internal” Tribal ethical controversies1—there is an acute need for Tribal ethics rules and regulations. In Gabriel S. Galanda (Round Valley) is the Managing Partner of Galanda Broadman, PLLC, an American Indian-‐owned law firm dedicated to advancing and defending Indian rights. Gabe can be reached in Seattle at (206) 300-‐7801 or [email protected]. 1 Compare State Bar of Arizona, Ethics Op. 90-‐19 (1990) (an attorney who was a member of both the Arizona and Navajo Nation Bars was not subject to disciplinary action by the Arizona Bar as the tribal ethical rules governed the conduct); State Bar of Arizona, Ethics Op. 99-‐13 (1999) (Arizona Bar member may supervise his non-‐lawyer paralegal in her representation of clients in tribal court without violating state ethical rules, as the tribal ethical rules governed the conduct); Massachusetts Bar Association, Ethics Op. 12-‐02 (2012) (where a suit to recover damages for personal injuries incurred on tribal lands in another state, the applicable ethical rules are either the other state's ethical rules or the tribal ethical rules and not the Massachusetts Rules of Professional Conduct); with Gillette v. Edison, 593 F. Supp. 2d 1063, 1068 (D.N.D. 2009) (the U.S. District Court found that the ∗
fact, the bad guy-‐lawyers take advantage of this regulatory vacuum when designing and calling plays. In addition to promulgating Tribal RPCs, Tribes—even those that have not yet established Tribal Courts—should conduct Tribal bar licensing activities. Some of the few Tribes that have adopted an ethical code have adopted rules similar to the Federal Model RPCs, which was also used as a basis for the Washington RPCs. However, many Tribal ethical codes contain only selected ethical provisions and are not as robust as needed to deter unethical lawyer conduct or play calling. To illustrate, this paper will examine two publicly available Tribal ethical codes and compare them to the Washington RPCs: (1) the Bay Mills Indian Community’s Rule 105.2, the Code of Ethical Conduct for Judges; Court Personnel; Lawyers and Lay Advocates (“Bay Mills Ethical Code”); and (2) the Hoopa Valley Tribe’s Professional Ethics Code for Spokespersons and Attorneys (“Hoopa Valley Ethical Code”). Play #1—Create a Tribal Leadership Dispute. Whether through “recall, election and takeover,” or some form of Tribal Chairman fiat or General Council coup d’état and resulting insurrection, the Abramoffs of the world—the bad guys—know that if Tribal governmental factions can be created, it will paralyze all interested parties, including all levels of federal government, tribal and state law enforcement, and financial institutions. In turn, those pivotal players will not immediately know who to treat as the “rightful Tribal Council” for purposes of government-‐to-‐government relations, law and order, or financial security. The bad guys will begin their takeover by setting their sights on weak persons or institutions in the Tribe, and then exploiting those weaknesses to drive a deep wedge into the heart of the community. They will tap, even bribe, a weak Chairman, or a group of dissident members, or notoriously unethical Tribal officers or employees. P.L. 280 jurisdictions are particularly vulnerable to such organized crime given perennial inter-‐agency law enforcement indecision and inaction. In the face of a takeover, the United States must “recognize the last undisputed officials” as tribal officials—meaning the officials in office immediately before the leadership dispute was manufactured—for government-‐to-‐government purposes, until the dispute can be settled pursuant to tribal law and procedure. Alturas Indian Rancheria v. Acting Pacific Regional Director, 54 IBIA 1, 8 (2011). But the bad guys know that the Bureau of Indian Affairs will be slow to make that declaration. The bad guys also know that if the BIA does ever declare the Tribe’s last undisputed officials as rightful leadership, they can immediately appeal any decision that goes North Dakota Supreme Court had jurisdiction to discipline an attorney for professional misconduct on an Indian reservation); State Bar of Michigan, Ethics Op. R-‐13 (1991) (applying the Michigan Rules of Professional Conduct to forbid a lawyer from prosecuting matters in tribal court in which the lawyer personally and substantially participated as defense counsel). 2 against them and stay its effect for up to three years, given the current backlog at the Interior Board of Indian Appeals. 25 C.F.R. 2.6(b). While the appeal lumbers along, and the bad guys declare that the decision has no effect pending that appeal, they mount a concerted war of attrition against anybody who stands in their way. Ethical Considerations: Assisting in manufacturing of a tribal dispute or the installation of an unauthorized Tribal Council may result in a violation of multiple ethical codes or Rules of Professional Conduct (“RPCs”). The Washington State Rules of Professional Conduct (“WA RPC” or “Washington RPCs”), for example, have numerous provisions prohibiting an attorney from lying, both to a court and to third persons, and from both committing or assisting someone in committing fraud. • WA RPC 1.2(d) -‐ “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . ” • WA RPC 3.3(1) – “A lawyer may not knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” • WA RPC 4.1(a) – “A lawyer shall not knowingly . . . make a false statement of material fact or law to a third person.” • WA RPC 8.4(c) – “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Like Washington RPC 1.2(d), Section 2.303 of the Bay Mills Ethical Code provides that a lawyer cannot counsel criminal or fraudulent behavior; and, like Washington RPC 3.3(1), Section 2.304 forbids making false statements to the Tribal Court. However, Bay Mills does not have the equivalent provisions to Washington RPC 4.1(a), which precludes false statements to third persons, or RPC 8.4(c), which forbids dishonest and fraudulent conduct. Similarly, the Hoopa Valley Ethical Code has one provision similar to Washington RPC 1.2(d), providing that a lawyer cannot counsel criminal or fraudulent behavior, but does not have provisions similar to any of the other RPCs discussed above. In addition to the Washington RPCs, it is a federal crime to “knowingly and willfully,” make any “materially false, fictitious, or fraudulent statement or representation” “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” 18 U.S.C. § 1001. Essentially, the statute makes it a federal crime to lie to the federal government. The statement does not have to be made directly to an employee of federal government, as long as the matter is “within the jurisdiction” of the federal government. The lie must be “material,” however, this requirement is satisfied if the statement “has the "natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed." United States v. Gaudin , 515 U.S. 506, 510 (1995). Therefore, if an attorney knowingly made false statements to the BIA or NIGC, as to the proper representatives of a tribe, and those 3 false statements influenced the agency’s determination, the attorneys could theoretically be prosecuted for federal crimes. Moreover, Washington RPCs prohibit a lawyer from acting on behalf of an organization when the lawyer is not authorized to do so. In other words, it is unethical for counsel to claim that he or she represents “the Tribe” or “Tribal Council,” when, in fact, counsel is representing an imposter Tribal faction. • WA RPC 1.2(f) – “A lawyer shall not purport to act as a lawyer for any person or organization if the lawyer knows or reasonably should know that the lawyer is acting without the authority of that person or organization, unless the lawyer is authorized or required to so act by law or a court order.” Neither the Bay Mills Ethical Code nor the Hoopa Valley Ethical Code contain any provisions restricting an attorney from purporting to act as a representative for an organization like the Tribe or Tribal Council. At a minimum, rules like each of the five above-‐quoted Washington RPCs should be promulgated by Tribes to help prevent the lawyer misconduct that accompanies, if not directly causes, Tribal factionalism and leadership disputes. Play #2—Seize the Palace. Concurrent with the eruption of the Tribal leadership dispute, the bad guys immediately exert control over the Tribe’s casino and other cash-‐generating enterprises—by violent force if necessary. The bad guys know that in a war of attrition, a war chest is required—and there is no deeper war chest than replenishing Indian casino coffers. They seize the gaming money to pay themselves and to recruit an army of others. Recall the following emails from Abramoff to his colleagues: "I want all their MONEY!!!" “We're charging these guys up the wazoo . . . Make sure you bill your hours like a demon.” This is precisely the state of mind of the bad guy-‐lawyers, who are sure to extract an enormous retainer up front so that they get paid no matter what ultimately happens to the Tribe. The bad guys then deny gaming per capita payments to their opponents to prevent them from accumulating any war chest of their own, while increasing those payments to other Tribal members to attract them as allies. Per capita monies are especially leveraged to buy votes in Tribal Council elections, or recall or initiative drives. All of this is done in disregard of any Tribal revenue allocation plan and the Indian Gaming Regulatory Act. Because what the bad guys really know is that the National Indian Gaming Commission Chairman will largely sit on the sidelines until the inert BIA decision-‐
making process finally runs its course, and that in the meantime the NIGC will not take any meaningful steps to shut down an illegal gaming operation or otherwise stem illegality. Recall that in Bay Mills the states argued that the “Commission only rarely invokes its authority to enforce the law against Indian tribes.” The states 4 appear to be right. As we also saw in Bay Mills, the entire U.S. Department of Justice—from local U.S. Attorneys and FBI Special Agents, to everyone at Main Justice—sits idle too, despite its clear statutory criminal and civil authority to intervene. Indian Country could use Phil Hogen and Tom Perrelli right about now. All the while, the bad guys run roughshod over the Tribe’s entire gaming operation. This increasingly includes heavily armed “security” personnel surrounding the casino, paid with gaming monies and tasked to prevent legitimate Tribal officials from resuming control over the casino, by any means necessary, Ethical Considerations: The Washington RPCs specifically prohibit a lawyer from charging unreasonable fees, providing a list of factors to determine whether a fee is reasonable. The comments accompanying the rule further state that a lawyer should not overbill clients. By charging an enormous retainer or trying to unnecessarily increase billable hours in order to obtain as much monetary compensation as possible, counsel violates ethical rules. • WA RPC 1.5(a) – “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent; and (9) the terms of the fee agreement between the lawyer and the client, including whether the fee agreement or confirming writing demonstrates that the client had received a reasonable and fair disclosure of material elements of the fee agreement and of the lawyer's billing practices.” • WA RPC 1.5, Comment[5] – “An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest . . . A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.” The Hoopa Valley Ethical Code contains an almost identical provision governing the reasonableness of fees charged, while the Bay Mills Ethical Code does not contain any provisions governing fees. Rules such as those quoted above that prohibit lawyers from charging Tribal clients unreasonable legal fees or overbilling them should be passed by Tribes to further deter the bad guy-‐lawyers’ play-‐calling. 5 Play #3—Cause a Tribal Membership Dispute. The bad guys know that if they style the Tribal leadership dispute as a membership dispute, nobody will touch it. They know that under banner of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), federal, state and local officials will simply say: “Sorry, the matter is internal to the Tribe. Tribes are sovereign and self-‐governing.” The bad guys know that they can claim to disenroll any Tribal Councilperson or member who is not aligned with them, without suffering any legal recourse. They know that the federal and state courts will almost surely not get involved. They also know that they can denounce an Indian court as illegitimate and flout any Ex parte Young efforts to prospectively enjoin their “ethnic cleansing” efforts. Tribal disenrollment is already at an “epidemic” level according to Professor David Wilkins; applying the Abramoff Playbook only accelerates the self-‐genocide. Ethical Considerations: The Washington RPCs, like Rule 11 to the federal and various state civil procedure rules, require an attorney to bring meritorious claims and forbids an attorney from bringing a claim that does not have a good faith basis in law and fact. Here, when lawyers advocate, cause or facilitate any disenrollment proceeding that lacks a good faith basis in law and fact, they are violating ethical rules or norms—and acting immorally. That is especially the case when they carry out the termination of enrolled Indians who decry Tribal Council factionalism. Tribal legal counsel’s most frequent claim of “erroneous enrollment” as the basis for jettisoning unpopular or dissident Tribal members, typically lack a good faith basis in law and fact. Even more egregious are lawyer-‐advised disenrollment proceedings that are designed to strengthen a Tribal Council faction’s ability to control Tribal assets and remain in power. • WA RPC 3.1 – “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” • WA RPC 3.1, Comment[1] – “The advocate has a duty . . . not to abuse legal procedure.” The Bay Mills Ethical Code contains a similar provision requiring meritorious claims, but does not incorporate the commentary regarding abuse of process as provided in the Washington RPC. The Hoopa Valley Ethical Code does not contain a provision requiring meritorious claims or prohibiting frivolous ones. Again, Tribes should promulgate such ethical rules, in part to militate against those lawyers who are part and parcel of Tribal disenrollment or self-‐termination procedures. Play #4—Rush to the Media. The bad guys hurry to create headlines that further cause folks in positions of power to stay out of it. The news stories they generate—
6 through paid-‐for press releases via PRNewswire—will speak of “tribal disenrollment” and “tribal factions.” They will allege some form of wrongdoing by their opponents, to the point of slander or libel. They understand that federal and state officials, cops and judges, as well as local community members and business leaders, will read the resulting headlines. In turn, those readers will fall back on preconceived ideas about what is happening within the Tribe, leading them to either pick the bad guys’ side or stay out of it completely. Ethical Considerations: The Washington RPCs have a rule addressing trial publicity, prohibiting a lawyer from making public statements that are likely to materially prejudice a proceeding. However, the accompanying comment admits that “[i]t is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.” A lawyer’s use of social media is not prohibited; the Washington RPCs recognize that “vital social interests” are served “by the free dissemination of information.” However, in order to preserve the right to a fair trial or any other adjudicative proceeding, “some curtailment of the information that may be disseminated about a party” may be required. • WA RPC 3.6(a) – “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” • WA RCP 3.6, Comment[1] – “It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.” The Bay Mills Ethical Code contains a similar provision governing trial publicity, but the Hoopa Valley Ethical Code does not contain any comparable provision. Although such an RPC contemplates only trial publicity, taking various RPCs like 3.1 and 3.6 together, a lawyer should not publicly assert or controvert an issue in any controversy, absent a good faith basis. In other words, they should refrain from spreading lies or otherwise abusing or prejudicing any procedure, before a Tribal or non-‐Tribal court of law or court of public opinion. 7 Play #5—Make Political Rounds. The bad guys rush to visit officials at all levels of government, starting at nearby towns and counties, and extending to state and national capitols. Aided by the first four scripted plays, the bad guys spin their talking points into the minds of anybody who innocently gives them a meeting, and further cause folks to either pick their side or “stay neutral.” They especially lobby BIA superintendents and career staff to delay the agency’s recognition of the last undisputed Tribal officials, knowing that all other government officials will await that determination before they might be inclined to do anything. Ethical Considerations: The Washington RPCs prohibit an attorney from improperly delaying proceedings in an attempt to prevent a party from obtaining relief. That extends to taking actions to delay a BIA proceeding, in order to frustrate the recognition of the rightful Tribal officials—and meanwhile, to overbill the Tribe. • WA RPC 3.2 – “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” • WA RPC 3.2, Comment[1] – “it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not legitimate [sic] interest of the client.” The Bay Mills Ethical Code contains a similar provision requiring an attorney to expedite litigation, but the Code does not include the commentary that is attached to the equivalent RPC. The Hoopa Valley Ethical Code does not contain any provision regarding expediting litigation. Tribal laws should be passed to prevent delaying tactics, whether in Tribal court or in a federal administrative controversy, as well as the unethical lawyer billing practices accompanying such tactics. Play #6—Exploit National Tribal Silence. The bad guys know that Tribal leadership and disenrollment disputes are taboo in forums like the National Congress of American Indians and National Indian Gaming Association. They leverage this silence to further advance their cause. Even worse, the bad guy-‐
lawyers write large checks on behalf of their firms or other affiliates, even other inter-‐tribal trade associations, to sponsor large inter-‐tribal meetings. National Indian groups unknowingly accept that dirty money and promote those sponsorships, which allows the bad guys to infiltrate the groups’ most inner circles, where they spread their message to ensure continued inaction. With their most powerful potential critics—other Tribes’ leaders—hushed, it becomes even easier for the bad guys to persuade federal officials to either do nothing or tread slowly. 8 Ethical Considerations: Several of the above-‐discussed Washington RPCs should prevent this type of behavior by legal counsel. See e.g. WA RPC 4.1(a) (“A lawyer shall not knowingly . . . make a false statement of material fact or law to a third person.”); WA RPC 1.2(f) (“A lawyer shall not purport to act as a lawyer for any person or organization . . . without the authority of that person or organization . . .”). Again, neither the Bay Mills Ethical Code nor the Hoopa Valley Ethical Code contains any provisions restricting such lawyer behavior. *** This is really happening, and these are only the first six scripted plays. Today’s Abramoffs are already tweaking and perfecting new plays, without any shame or repercussion. Nobody formidable, and no ethical rules, stand in their way. Unless there is a dramatic change of mind and heart within Indian Country and its extended federal family, it is only a question of time before the bad guys hit another Indian community. And absent a change in the status quo, the good guys may soon be left with no other choice but to preemptively call plays from the Abramoff Playbook in self-‐defense of what is right—and what is truly Tribal. 9