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Mar 13 2012

Lawyer’s Conduct in NYC “Madam” Case Raises Question of Who’s the Bigger “Whore”?

So the newspapers have loved the criminal case of Anna Gristina, an upstate mom who is the latest alleged high-end Manhattan Madam; she too allegedly has a little black book with names of the famous and powerful who pay her girls’ time and services. It was a little surprising when Judge Juan Merchan assigned a public defender to represent someone who the DA claimed made millions off the sex trade. I mean, if they have proof that she had this type of business after a multi-year investigation, where is the money trail?

While Judge Merchan did tell her that she would be held responsible for paying the City back for the money it spent for her lawyer if it turned out she did have the money to pay for her own, he did not say when or how that analysis would be done. He then assigned Richard Siracusa to represent her. Having not heard of Mr. Siracusa myself, I have asked around and it looks like the little lady lucked out. Siracusa has been a criminal defense practitioner for more than 30 years. He has a lengthy track record of diligent and zealous representation of the criminally accused.

Judge Merchan also set bail at a $2 Million bond as I guess he thinks Anna is a flight risk. (I will not pass judgment on such a high bail for acts that are legal in many countries and in some places right here in the USA as that’s not the focus of this post). So now along comes a lawyer, named Peter Gleason, who says that he is representing Ms. Gristina for free! And he wants Siracusa taken off the case. To add to the bizarre nature of this request, Mr. Gleason also told the court that he would put up his $2 Million Tribeca condo as collateral to secure his client’s release.

The judge called for a hearing to determine whether he would let Gleason replace Siracusa. Gleason showed up with Ron Kuby, a NY lawyer who never met a publicity opportunity he didn’t like. Judge Merchan quickly told Kuby to get out of the courtroom well as Gleason did not need an attorney.

Merchan then refused to let Gleason be the sole lawyer for the suspected madam as he revealed that he had never tried a felony criminal case since being admitted in 2004 and that his sole experience in criminal law is that he had “handled cases with aspects of disorderly conduct and assault.” What does that mean? And why didn’t Judge Merchan ask him what that meant? Realizing that he was not likely equipped to handle this case, he let him act as co-counsel only but kept Mr. Siracusa as the primary attorney. Another lucky break for Gristina – as now this woman has two lawyers she is not paying for working on her case.

The judge will now decide on March 15 whether to allow Gleason to post his client’s bail. NY County Assistant District Attorney Charles Lenihan, objected in court saying, “We believe it’s unethical.” The press has correctly reported that it is not per se unethical but the discussion has not gone beyond that point. Here’s my two cents – It is likely unethical in this situation and certainly ill-advised.

The American Bar Association (ABA) opinion in this area recommends that lawyers should consider being involved in the posting of bail for their clients only in “rare circumstances where there is no significant risk” that the lawyer’s representation “will be materially limited by” any desire to recover the money given to the client. ABA Formal Opinion 04–432 (2004). Similarly, the only New York State Bar Association Committee on Professional Ethics opinion dealing with bail states that an attorney cannot act as a paid bail bond agent for his own client. NY Eth Op 647, 1993 WL 560287. The opinion, which cites NY Disciplinary Rule 5–103(b)(prohibiting a lawyer from providing or guaranteeing financial assistance to a client during pending litigation), rests on the fiduciary interest a lawyer has in acting as a bail bond agent, and the financial conflict this creates with the attorney’s ethical obligation to the client.

Here if Gristina decides she doesn’t want to face the music and would rather take her chances on the lam, will Gleason not do everything he can to stop her from doing that and not lose his home? The judge should also inquire how he came to be involved in the case and why he is putting his house up for her? Ron Kuby’s explanation that “Pete Gleason has a passion for justice and a congenital hatred of bullies. And when he sees someone being pushed around, he intervenes,” does not pass the laugh test. NY courts have in the past not allowed a person to post bail for another if the person posting it has no “relationship” to the defendant, finding that the posting of bail “contravenes public policy,” citing NY’s Criminal Procedure Law § 520.30[1]. The reasoning is usually that due to the lack of a relationship between the parties, the defendant would not feel an obligation to the individuals posting the bail and that since the defendant would not care whether these individuals lost the bail money if he failed to return to court, the posting of the bail would not insure the defendant’s return. Common sense – unless the defendant cares about the bail provider there is no incentive to return.

So there are many problems raised by allowing this lawyer to post this bail for his client. It appears to me that this is yet another example of an inexperienced lawyer looking to get famous quickly by taking on a high-profile case that is over his head. See my earlier blog posts about ex-Penn State coach Jerry Sandusky’s overly talkative lawyers and the 60 Minutes piece that the lawyer for the accused SAT cheater on Long Island allowed that made him and his client look terribly foolish and the defendant obviously guilty.

Gleason clear desire for publicity was evident when his first act in representing Gristina was to call a press conference,which he defended in court by saying “It may have saved her life.” How he never explained. He then hired Ron Kuby to “represent him” at Gristina’s criminal court appearance. Now he tries to handle the case himself and unseat a free, experienced lawyer for his client – that cannot be in his client’s best interest. It was never made clear at the hearing yesterday whether Gristina actually wanted Siracusa off the case. Maybe Gristina feels that since she may have experience handling ladies of the evening that an “attention whore” may be her best advocate.

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