The legal scandal that no one is talking about

The past 10 days have been a dizzying news cycle, from the temporary end of the partial government shutdown to the Roger Stone indictment.

But little media attention has focused on what, in my view, is the largest story:  the misuse of a major white-shoe law firm by a foreign government aligned with the Kremlin.

{mosads}Part of what makes this case notable is how this storied law firm, labeled “Wall Street’s most powerful firm,” was allegedly directed in its professional misconduct by Gregory B. Craig, the former White House counsel to President Barack Obama. 

Craig previously served as the special counsel to President Bill Clinton and as senior adviser to Sen. Ted Kennedy (D-Mass.) and Secretary of State Madeleine Albright. 

Much of the media perhaps has been reluctant to report more widely on the story because it does not fit neatly into a soundbite, a tweet or even the parameters of a 900-word op-ed (though I am going to try). 

In other words, this was not political, but a “dirty, dirty, dirty” contract doing the talking, as one central figure in the case stated.

To be clear, millions of dollars were sent to the law firm through shell companies and using Cypriot bank accounts, just as detailed in the Panama and Paradise Papers, for which I served as the U.S. banking expert.

Paul Manafort, then an independent political consultant, who later briefly became the presidential campaign chairman for Donald Trump, hired the law firm of Skadden, Arps, Slate, Meagher & Flom to conduct a purportedly independent analysis and report in order to refute rule of law violations involving the Ukrainian government under then-President Viktor F. Yanukovych of Ukraine. 

The engagement agreement apparently stated that Skadden would be paid $12,000 for its work.  This was a lie; a side agreement had been reached that a $4 million retainer would be paid to the law firm by a third party, which we now understand was reportedly a shell company controlled by Paul Manafort and allegedly funded indirectly by the Russian government.

The engagement agreement was written in this manner to obfuscate the amount being paid, to in turn obfuscate Skadden’s requirement to register as a foreign agent under the Foreign Agent Registration Act (FARA), according to federal investigators.

Despite these efforts, the Department of Justice raised questions fairly quickly about Skadden’s engagement. “Partner 1” at Skadden — believed to be Greg Craig — is alleged to have then lied orally and in writing to DOJ attorneys and investigators.

Another Skadden attorney, associate Alex van der Zwaan, lied to FBI special agents working at the behest of special counsel Robert Mueller, according to federal investigators. We all know what happens when you lie to the FBI; van der Zwaan was indicted and later pled guilty. Craig has not been charged.    

I frequently lament the revolving door of government and how money, not politics, ultimately governs the poor ethical decisions made by licensed professionals. So what should we do? Here is my baseline suggestion. 

The law profession must be brought within the ambit of the Bank Secrecy Act (BSA). First created nearly 50 years ago, the purpose of that law was to prevent criminals, terrorists and their financiers from misusing our banking system. 

It is this law that requires the filing of suspicious activity reports (SARs) and currency transaction reports (CTRs) by U.S. financial institutions, and it has, without question, made money laundering much more difficult. 

However, there is a large loophole, and it was used by Skadden here, according to federal investigators: Attorney Trust Accounts, also known formally as Interest Only Lawyer Trust Accounts (IOLTAs).

Banks are not able to appropriately file SARs or CTRs concerning activities in law firm IOLTAs because they are not able to understand the nature of transactions within the accounts, which are by their terms cloaked in secrecy by the attorney-client privilege. 

Bipartisan members of Congress — notably Sens. Sheldon Whitehouse (D-R.I.) and Ron Wyden (D-Ore.) and Reps. Carolyn Maloney (D-N.Y.), Blaine Luetkemeyer (R-Mo.) and Steve Pearce (R-N.M.) — have introduced legislation in the past to force attorneys to provide the gatekeeper role under the BSA. Yet these measures are uniformly opposed by the legal profession. 

{mossecondads}To be perfectly clear, the risks are serious. To those who believe the lawyer’s sin can be political only, reference should be made to the Paradise and Panama Papers. These stolen law firm files make clear that use of attorneys and attorney bank accounts can include crimes such as: 

• stolen art by Nazis;
• a Mexican cartel leader on the FBI’s Ten Most Wanted list, who directed the murder and torture of a special agent of the DEA;
• circumventing war powers sanctions by funding barrel bombs in the Syrian civil war;
• Russian organized crime; and
• sex and human trafficking.

Because the American legal profession is a powerful lobby and perhaps because the Skadden story involves a strong Democratic connection, many in the media have deprived us of the news and discussion the scandal plainly deserves. I hope this column rekindles the discussion of how regulation of the legal profession must change. 

David P. Weber is an attorney and a professor at the University of Maryland, where he teaches fraud examination and professional ethics. He was the U.S. banking expert who helped review the Panama Papers before publication, a project that later was awarded the Pulitzer Prize for Explanatory Reporting. He represented a key witness in the special counsel’s grand jury investigation into Russian collusion, and in the United States v. Paul Manafort criminal trial in the United States District Court for the Eastern District of Virginia. You can follow him on Twitter @umd_dpweber.  

This was updated at 5:45 p.m. on Jan. 28, 2019.