Raising Pat Kane and Lawyers Selling Out Clients

If you haven't seen the reportage, there is a bit of a fascinating case going on up in Erie County of New York. That would be the Buffalo area, give or take. The matter involves the star of the Chicago Blackhawks, the current Stanley Cup Champions, Patrick Kane. And it involves extremely serious rape allegations.

Several people, both on and offline, have asked me about this case. I have made a few observations on Twitter (namely that the cops have a LOT to answer for, and that this case is nuts), which I stand by, but have been unwilling, without more, and better, facts to really express much of an ultimate opinion.

I am still not willing to go to Kane’s ultimate guilt or innocence, and neither should anybody else at this point. In fact, it is revolting to the extent that many in the press, especially digital media, have putatively done so. I have long loved Dave Zirin, of The Nation, but he got out ahead of himself and criminal (frankly even civil) law here:

In the entire horrific history of male sports stars and accusations of sexual violence, there may have never been a story as nauseating as this one.

Yeah, what?? That was while he was explaining that there may actually be a heinous problem with the critical evidence of guilt. So let’s frame it in terms of the victim, right?

Okay, but which victim? Is the “victim” the one Zirin, and honestly most of us, assume, i.e. the “accuser”?

It may well be!

But, is it necessarily? No, the “victim” could well be Kane too. Usually the cops and prosecutors are putting their weight behind a civilian victim and lying against the accused. At least that is my experience. Sometimes the “State” case is only lightly shaded by the cops and prosecutors, sometimes (and this is way more than you think), it is in an unreasonably leveraged, and borderline unconscionable, manner. And this is the problem with a victim culture in criminal matters, victims get presumed and the presumption of innocence gets lost.

So, what about here where the DA is standing up and saying everybody needs to slow down on Kane? Is the DA protecting justice, or preventing it?

We don’t know. I don’t know. Dave Zirin doesn’t know. And neither do you. The publics’ emotions and feelings are not the judgment of the civil, much less criminal, justice system. Time may tell, or this case may be so fundamentally buggered up by yet unknown actors that it is never really known what happened.

But there is one way in which the accuser is absolutely a clear cut victim. She has been screwed by her, now former, lawyer, Tom Eoannou:

The lawyer for a woman accusing Chicago Blackhawks star Patrick Kane of sexual assault abruptly quit the case Thursday night, saying he’s no longer comfortable representing the woman because of how her mother reported finding an evidence bag they believed once held the woman’s rape kit.

Thomas Eoannou told reporters he believes there were, what he called, “fabrications” in the story of how the bag was found. He added that he’s no longer sure if the bag ever contained evidence from the investigation.

“I can only say that I don’t know what’s true and what’s not true,” Eoannou said during a hastily called news conference at his downtown Buffalo law office. “I received the storyline from the mother. And it’s my position that I’m not comfortable with that version of the events.”

Say what??

I don’t know where this story will ultimately go, but suffice it to say that it is some major league ethically dubious lawyering for Eoannou, to be publicly holding a press conference to say he doesn’t “have confidence” in his client’s story. Especially when he is abandoning his client in the process. On what any moron would know would be, nearly instantly, national television.

I guess Eoannou stopped a little short of calling his own client, and her mother, lying frauds, but, seriously, he did everything but that and certainly implied it. This is just flat out scummy, and arguably patently unethical lawyering, in my opinion. And it hurts lawyers, of all stripes, everywhere and taints the entire judicial system.

You don’t get to say such things as a lawyer. You CAN’T say such things as a lawyer. Not while both the active criminal investigation, and potential civil case, hang in the lurch for your client. And not while walking away like a coward from your client. Because that is selling your client, and everything you, as a lawyer, are supposed to stand for down the river. On a barge the width of the Mississippi.

Nothing good ever comes from a lawyer running his mouth to the press on a case before he really knows the facts. Far too many attorneys are tempted to self aggrandize and publicize themselves on their “big case” before they know what they are really dealing with. Thomas Eoannou should not have been yakking to the press to start with, much less have held a press availability to explain how he was shitting on his client and her case.

This is unconscionable, and unprofessional, media whoring at its worst. It brings to mind the case of David Aylor, the former lawyer for the cop charged with executing Walter Scott in South Carolina. As my friend Scott Greenfield said in that matter:

No one forces you to rush out to the spotlight and make a statement before you have a clue what evidence exists against your client, and no one forces you to rush out to the spotlight a second time when you’re exposed as the fool who shot off his mouth.

At first, the spotlight seems warm and alluring to the lawyer, a chance to get his brand out in public and make a name for himself as the kind of lawyer who can handle the big time. But stand in the spotlight long enough and it starts to burn.

Exactly. You just cannot do that, whether you represent the accused or the putative victim. You cannot bias and/or destroy your client’s case, your duty is to zealously protect the client. Here, Eoannou has prejudiced both the accuser’s case as a potential crime victim and any potential civil case she might have against Kane. That is simply impermissible irrespective of where the ultimate truth lies in the rape accusation against Patrick Kane.

UPDATE: Scribe has some good information in this comment regarding the the violations of the New York ethics code Thomas Eoannou arguably ran afoul of.

This is exacerbated by what might be the lawyer’s pretty blatant violation of the ethical rules. New York’s version of the Rules of Professional Conduct are interpreted more broadly than in other states, when it comes to disclosure of client confidences. Disclosure of anything that might embarrass the client or prejudice his rights is prohibited. The classic example is how the high-profile divorce lawyer is not allowed to acknowledge that the prominent movie star with a family values image has been to his office. This even if the star is not a client but only a prospective client.

NY RPC 1.6 states, in pertinent part:

(a) A lawyer shall not knowingly reveal confidential information, as defined
in this Rule, or use such information to the disadvantage of a client or for the
advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating
to the representation of a client, whatever its source, that is (a) protected by the
attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if
disclosed, or (c) ….

(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or
(ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.

NY RPC 1.18 makes 1.6 apply to prospective clients.

This attorney might argue his second “I quit” press release was correct under 1.6(b)(3) above. But the problem is that his first run-to-TV moment was the one he should not have undertaken. It appears he did little to no investigation before running to the press. If he had, chances are he would have had a good chance of finding whatever falsity he thinks he found between TV appearances that justified his dumping out on his client. Now, not only has he cast his client as a liar, her mother – who might have been a corroborating witness – as another liar – all prejudicial to the state’s case, if any existed, for an assault against her – but he also bolluxed any civil case she might have brought in the future.

I hope his malpractice insurance is paid up.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
16 replies
    • bmaz says:

      All great questions. If we are to believe the DA (which I am not yet sure we should, but whatever), the rape kit never left proper custody. Which would mean a second evidentiary package, bearing all the expected indicia of legitimacy, was fabricated and delivered to the mother.
      .
      Alternatively, the original WAS delivered to the mother and the one the cops and prosecutor claim is properly within their custody was dummied up. We just don’t know.

    • scribe says:

      Good questions. Short answer: no one knows.
      .
      The question you aren’t asking is “is this really a/the rape kit or is it a fabrication?” Note that choosing between “a rape kit” and “the rape kit” really makes that question two separate, distinct questions with entirely different implications.
      .
      The things being called a “rape kit” might be THE actual rape kit, assuming there was one to begin with. OR they might be the makings of a kit off the shelf made up to look like THE one. OR it could have been a scam from the get-go.
      .
      But BMAz is quite correct – the attorney should have shut his mouth and never gone on TV in the first place. The proper way to address ALLEGED irregularities is either motion practice or going to the adversary counsel and judge with the question but not in the context of a motion, backing that up by having the motion in your pocket. Instead, he ran to TV.
      .
      This is exacerbated by what might be the lawyer’s pretty blatant violation of the ethical rules. New York’s version of the Rules of Professional Conduct are interpreted more broadly than in other states, when it comes to disclosure of client confidences. Disclosure of anything that might embarrass the client or prejudice his rights is prohibited. The classic example is how the high-profile divorce lawyer is not allowed to acknowledge that the prominent movie star with a family values image has been to his office. This even if the star is not a client but only a prospective client.

      NY RPC 1.6 states, in pertinent part:

      (a) A lawyer shall not knowingly reveal confidential information, as defined
      in this Rule, or use such information to the disadvantage of a client or for the
      advantage of the lawyer or a third person, unless:

      (1) the client gives informed consent, as defined in Rule 1.0(j);
      (2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
      (3) the disclosure is permitted by paragraph (b).

      “Confidential information” consists of information gained during or relating
      to the representation of a client, whatever its source, that is (a) protected by the
      attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if
      disclosed, or (c) ….

      (b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:

      (1) to prevent reasonably certain death or substantial bodily harm;
      (2) to prevent the client from committing a crime;
      (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
      (4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
      (5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or
      (ii) to establish or collect a fee; or
      (6) when permitted or required under these Rules or to comply with other law or court order.

      .
      NY RPC 1.18 makes 1.6 apply to prospective clients.
      .
      This attorney might argue his second “I quit” press release was correct under 1.6(b)(3) above. But the problem is that his first run-to-TV moment was the one he should not have undertaken. It appears he did little to no investigation before running to the press. If he had, chances are he would have had a good chance of finding whatever falsity he thinks he found between TV appearances that justified his dumping out on his client. Now, not only has he cast his client as a liar, her mother – who might have been a corroborating witness – as another liar – all prejudicial to the state’s case, if any existed, for an assault against her – but he also bolluxed any civil case she might have brought in the future.
      .
      I hope his malpractice insurance is paid up.
      .
      I’ve been part of cases where we lawyers dumped a lying client. The one, a guy was trying to collect a second time for the same medical malpractice. We got to his deposition, where the other attorney nailed him about it. And after the deposition, he got even worse from us in the office. His explanation for a guy with his name and social security number having suffered from the alleged medical malpractice and collecting for it was that there was a clerical error in his hometown in Puerto Rico such that he and another guy born the same day got the same name and, oopsie, social security number.
      .
      In other words, he was full of shit and had managed to scam us into working for free, for a while.
      .
      We did not make a big show out of it, outside the office. We filed a motion to be relieved as counsel with a vague reason – we felt there was a conflict with the client which we could not overcome. Adversary counsel did not object. The case was not dismissed … until after the client was proceeding pro se.
      .
      Another time, my partner and I were representing a guy in a serious felony case. We became aware of information that twigged our ethical senses. We consulted with an ethics expert who told us to withdraw and that we couldn’t ever tell anyone why. And that was the motion we filed: we consulted with an ethics expert, we were told we had to withdraw, and we could never tell anyone why. The judge could do nothing but grant the motion. And the client got satisfactory counsel, unburdened by our ethical problem, to handle the case.
      .
      If you can’t continue, you get out within the Rules. You don’t make a show of it.

  1. bloopie2 says:

    If the supposedly fabricated rape kit comes into play down the line, evidentially (is that a word?), then isn’t the lawyer now a fact witness? To be called by one side or the other, to testify as to what he saw and/or was told? How does the privilege come into play? Has he screwed his client that way, also? There are, as you say, just SO many things wrong with what he did.

    • bmaz says:

      I guess he could be now, but you would hope he would not say one further word without waiver of privilege by the accuser/client. He didn’t have to be though, the real fact witness on that end was the mother.

  2. galljdaj says:

    What the fuss really about? Justice? attacking just one lawyer? the catch 22 system of America?

    Didn’t the scumbag lawyer act exactly like Our Society Leaders do every day? lil bush? and his gang? lil obama? and his gang?

    There is no truth in Our Nation from the Top to the Bottom! We have objectors that is for sure! but as far as the face body and ass, we act like scumbags doing what we think as a Nation to make profit! And use Propaganda!

    • bmaz says:

      What???
      .
      Yes, of course, everything is everything, and it is ALL the fault of “L’il Bush and his gang”. Jeebus.

      • galljdaj says:

        Of course ‘others’ have created our very long time and excessive culture of thieving and killings added up to more than all other Nations.

        I selected only the two gangs because of there totality of destroying our Rule of Law, Constitution, and there attacks on the well being of the Majority of US Citizens. They are excessively outdistancing all other Administrations merely because they are gangs! RICO violators! Never before in my 8 generations have total administrations across all three branches of out Govt has the entire govt acted in such criminal ways to all violate our RICO Laws.

        All being foot soldiers for the Corporations and Billioneers! If you have read the PNAC White Papers, some 130 papers, you should understand everything criminal being done Today and the past ~15 years are crimes violating war crime laws and RICO Laws.

        The list of crimes from previous administrations is long and damning also, but we do not have time and space to other than to say they spawned the two Administrations I named.

  3. earlofhuntingdon says:

    As Rumpole might observe, any of us might be guilty of rape, murder or theft. Whether any of us is is a matter of fact, which is for the jury, and of the law, which involves an elaborate dance among legislatures, judges, prosecutors and their political masters, and assorted hangers on. The process is designedly elaborate in at least one sense: the accused is meant to be innocent until proven guilty in a public court, according to due process. That’s because Lord Acton’s observation remains accurate. Power inherently corrupts and will be abused. I can’t tell what’s most nauseating, the media whoring or the lawyer unethically selling his client down the rat hole, presumably because someone with a lot of juice made it look like a good idea.

      • bmaz says:

        Damn those Founding Fathers for giving us a democracy and then telling us to keep it!
        .
        It is all their fault, amiright?

    • orionATL says:

      ah, rumpole. one of my all time favorite, endearingly curmudgeonly characters.

      this discussion is about law, not politics, but i can’t resist observing, with rumpole and the timsons in mind, that our political timsons are always with us, generation after generation :) or :(

      our timsons are too much with us; late and soon,

      getting and spending, they lay waste our powers…

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