As a general rule, I don’t talk to litigants. Even if their lawyer consents or hops on the call with us. Sure, the litigant is the guy paying my fee, but his lawyer is my client, and I’m not about to get in the middle of their relationship. Besides, it’s always a terrible idea to give a litigant control over something that is a lawyer’s ethical obligation.
From time to time, though, I’ll accede to a request from counsel just to put the litigant’s mind at ease (“hey, my client insists on talking to you before he forks over ten grand, so could we set up a call?”). A few years ago, I was on a humdinger– a truly frightening call– and had the same thing happen again last week on a Zoomer. The illustration here is an amalgamation, with details changed to protect confidentiality… neither litigant was “innocent” no matter how you look at it. Here’s the setup:
Husband is an Chinese tech entrepreneur who lives in Seattle. His wife finally has enough of his abuse and infidelity, so she flies home to China and promptly cleans out their joint bank account. He hires counsel, files for a divorce in King County, and is floored to learn that it will take a year or more before we can expect proof of service. He wants me to talk to his lawyer in Shanghai so we can get the skids greased and make things happen more quickly.
Sorry, I say. We can’t do that… there’s only one way to have service properly effected in China, and we have to let the procedure play out. I explain to him that the bureaucracy is extensive (which he already knows) and very methodical (which he also knows).
Oh, you just let me worry about that. I know people. People who can make things happen for the right price.
This song instantly plays in my head. Run away, because this guy is not worth the few hundred bucks you might make on his case.
Well, for starters, don’t you just feel skeezy about it? And beyond that, if the guy is that adamant about calling the shots, how likely is it that he’s going to let you do your job without wanting to dictate every single move you make on his behalf?
Even more important, how likely is it that he’ll be honest and forthright with you? What sort of misrepresentations will you make to the court after he lies to you?
But most frightening of all is a little statute that most lawyers are unaware of because they rarely have an issue that crosses a border: the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq. (FCPA). In short, the FCPA prohibits bribe made by or on behalf of U.S. persons. If that Shanghai lawyer bribes a Shanghai court official to execute a Hague Service Convention Request bearing my signature… I may be on the hook for an FCPA violation.
Sure, it would be tough to connect the thing to me. It’s highly unlikely that anybody would ever even know about it– and even if someone in China finds out, the chances are infinitesimal that they’d ever blow the whistle at the DOJ. Moreover, there’s a “grease payment” exception to the FCPA: de minimis amounts paid to a low level official to speed along something they’d be doing anyway… well, they’re not going to waste prosecutorial resources on that.
Sorry– for the few hundred bucks I might make on the project, it just isn’t worth the risk, to my liberty or to my reputation.