Patrick Kane: [Updated] D.A. Decides Not to Prosecute; NHL Determines Claims "Unfounded"

[TrueBlueGED]

 

 

 Hopefully that was her motive. What an astonishingly stupid thing to do.

 

Assuming she (up till bringing forth the bag) was on the up & up and believed that her daughter had been raped, hearing that no Kane DNA was where it might have been expected to be and then hearing addition hearsay that other DNA was there instead, the emotions must have been horrific. She could very likely believe that the evidence HAD to be tampered with and she thought this was a way (perhaps, in her mind, the only way) to get it reexamined.

 

But even 5 minutes of thought about what that could bring about should have included people (potential jurors & grand jurors perhaps) believing the initial accusation was fraudulent and her daughter now getting viewed as unethical by those same people that had been willing to believe her or at least go in with an open mind and willing to let the evidence form their opinion of the accusation.

 

And that is the result if her motives were good even though her actions were extremely unethical.

 

IF her motives were pure, then wow, just wow.

 

This is precisely why I lean towards thinking it was a perfect example of meaning well but doing harm. If the accusation from the very start was an elaborate extortion attempt, this is exactly the type of calculation those involved would be able to make. Even if the DNA evidence weakens the criminal case, there's still a non-trivial possibility that a civil case could be successful (or successful enough to induce settlement, or Kane would be willing to pay just to make it go away, etc)...unless they're just dumb, anyone after money would be likely to think this through. But parents don't always think clearly when their kids are involved, so a panic-stricken mother acting on emotion? I could easily see her not even trying (or being capable of) thinking about the unintended consequences here.

Seems like more than a fair reading of the situation to infer that the Mom was trying to do something, anything to help her daughter.

 

Especially, as you say, because of the recent leaks regarding the forensic test results. I think the thing that would have inflamed the mom was the leak about traces of DNA from more than one man found on her or garments worn below her waist.

 

Yea, I have a hard time believing the timing here is a coincidence.

[shrader]

She went w/ her daughter to ECMC. If I heard correctly (WBEN doesn't come in well where I was at), the nurse put a top in the bag and gave it to the mother. Sedita's quote was roughly 'the last person seen w/ the (paper) bag was the person who brought it to the attorney,'

 

Also, the plastic bag was from the attorney's office, presumably Attorney E didn't want to contaminate the bag any more than it might have been when he received it.

 

 

The way I heard it is that the girl changed her top at home before going to ECMC. The mother took her daughter to ECMC and was given the bag by the nurse to bring in the top that was left at the home.

 

So she has had the bag since day 1?  Wow, that lawyer just threw a major black mark on that 30+ year career.

[musichunch]

Again, perhaps others were involved. Perhaps the daughter was; that would completely torpedo her credibility.

 

Not sure what you are trying to get at.

 

What I'm getting at is that the speculation today is that the "mother was looking out for the daughter" with the assumption it was only the mother involved. 

 

The other assumption is that this was a reactive emotional reaction by the mother and not a calculated move potentially involving others in the family. 

 

I wanted to bring those ideas to light before we paint "the mother going rogue" as fact in this board's narrative of the events.

[Taro T]

The way I heard it is that the girl changed her top at home before going to ECMC. The mother took her daughter to ECMC and was given the bag by the nurse to bring in the top that was left at the home.

Thanks.

 

That makes sense and explains why Sedita said something to the effect of when the Hamburg police went to the house, they put the top in their own evidence bag and left the ECMC one w/ the mother. (Could also explain the bag being "ripped.")

[3putt]

Eleven, 3putt, et al.:

 

Eoannou cited his ethical obligation to withdraw.

 

Need he "withdraw" when there had been no appearance?

 

Also, was it unethical of him to place his former client's (clients'?) interests in a negative light like that? Why not just issue a press release stating: "I no longer represent the accuser in the Pat Kane matter. Owing to my obligation to maintain client confidences, I will have no further comment on this matter."

 

Edit: I've looked again at some of these rules. I think he did actually have a basis for saying what he said last night. He'd been made the mouthpiece of a fraud; he was probably entitled to withdraw what he said and explain why.

 

I mean, I think I know *why* he did what he did, but ... didn't seem right to me.

 

Finally, did you see the statement from the family? It read to me like they have civil counsel.

Sorry for the delay, and I do not know if this is still germane, but I think he was conflicted, professionally, on a few different levels.  Ethics, at its root is the avoidance of conflict and diligent representation of your client's interests within the boundaries of the law.  All attorneys are officers of the court by deputization, i.e. admission to the bar.  One cannot advance a representation that one knows either lacks merit, is a blatant misuse of the court's resources or would require the attorney to violate the law or court rules.  But the real issue I see here is one of potential conflict between "clients".

 

As to your inquiry about representation absent a formal appearance, there is precedent for establishing an attorney client relationship under those circumstances.  As a matter of fact it is the classic fact pattern asked of all taking the bar exam and the warning given to all young attorneys that an attorney client relationship is established based on the client's reasonable perception that an attorney is rendering them advice and that the discussions between them will be confidential and privileged.  Thus at a party when asked specific questions pertaining specific fact patterns I politely decline to answer and qualify any answers with "hypothetically", or "that is interesting, you should probably consult personal counsel."

 

This is long winded response to what i felt was a conflict from the start.  The accuser's counsel has no import on a criminal proceeding.  They may advise or explain issues to a client, but the matter is society, i.e. the people vs, a defendant.  The people are represented by the prosecutor.  The accuser is merely a witness, albeit an important one in most cases.  Private counsel does not do anything other than advise.

 

Her attorney could have been retained by parents or other guardian, legal or ad litem, in which case a conflict can arise unless the scope of the representation is clearly defined.  If her attorney felt that he was unable to carry out the scope of that obligation without somehow disadvantaging his client or obstructing a criminal investigation he is obligated to terminate the representation.  The minute the attorney raised any issue as to the leaks, evidence or otherwise, he was perilously stepping on ground normally reserved for the people's representative.  Unless there was a civil action filed in the meantime, there was very little to be gained from engaging in the discourse that came to light. 

[Taro T]

What I'm getting at is that the speculation today is that the "mother was looking out for the daughter" with the assumption it was only the mother involved. 

 

The other assumption is that this was a reactive emotional reaction by the mother and not a calculated move potentially involving others in the family. 

 

I wanted to bring those ideas to light before we paint "the mother going rogue" as fact in this board's narrative of the events.

Sedita's looking into it. Would expect Kane's lawyers to be interested as well.

[Eleven]

♫ ♪ The show ... soon will be making another run ...

The show ... promises something for everyone ♪ ♫

[That Aud Smell]

As to your inquiry about representation absent a formal appearance, there is precedent for establishing an attorney client relationship under those circumstances.

 

Of course. My point was: The NYS Ethics Rules generally talk about "withdrawal" when counsel has noticed an appearance on behalf of a client before a tribunal. There was no tribunal here (well ...), so it made the whole "withdrawal" conceit a little weird.

This is long winded response to what i felt was a conflict from the start.  The accuser's counsel has no import on a criminal proceeding.  They may advise or explain issues to a client, but the matter is society, i.e. the people vs, a defendant.  The people are represented by the prosecutor.  The accuser is merely a witness, albeit an important one in most cases.  Private counsel does not do anything other than advise.

 

I'm unclear. Are you saying it was a conflict for Eoannou to represent the accuser relative to her interests in this criminal investigation?

Her attorney could have been retained by parents or other guardian, legal or ad litem, in which case a conflict can arise unless the scope of the representation is clearly defined.  

 

She's of majority age and competent (legally) -- she wouldn't have a guardian anymore. But I do think her Mom and/or Dad were the payors. That's a not uncommon dynamic in any representation -- represent A, while B pays the bills.

Edited September 25, 2015 by That Aud Smell

[TrueBlueGED]

What I'm getting at is that the speculation today is that the "mother was looking out for the daughter" with the assumption it was only the mother involved. 

 

The other assumption is that this was a reactive emotional reaction by the mother and not a calculated move potentially involving others in the family. 

 

I wanted to bring those ideas to light before we paint "the mother going rogue" as fact in this board's narrative of the events.

 

I don't think anyone is precluding that possibility. Mr. Eoannou said during his resignation that there is no evidence the accuser was involved and Sedita said it was going to be investigated, but didn't make any insinuation about what he believes one way or the other. So really, we just don't know.

[calti]

The English justice system does have its merits.

[3putt]

Of course. My point was: The NYS Ethics Rules generally talk about "withdrawal" when counsel has noticed an appearance on behalf of a client before a tribunal. There was no tribunal here (well ...), so it made the whole "withdrawal" conceit a little weird.

 

I'm unclear. Are you saying it was a conflict for Eoannou to represent the accuser relative to her interests in this criminal investigation?

 

She's of majority age and competent (legally) -- she wouldn't have a guardian anymore. But I do think her Mom and/or Dad were the payors. That's a not uncommon dynamic in any representation -- represent A, while B pays the bills.

See NYS Rule 1.16.  It is not limited to representation before a tribunal.

 

The accuser has no "interests" in the criminal case.  That's my point.  The interests are the peoples.  The accuser is merely a witness.  If the accuser filed a civil action contemporaneously, then she would have interests in the civil action, which are subordinate to those of the people in a criminal case.

 

The structure of the agreements you mention are where the devil lies.  An agreement between x and y for y to represent z creates a financial conflict for y if his counsel may cause x to refuse to pay.  Absent a civil action where a contingency arrangement would eliminate any consideration of x's input, it is a conflict.  That is why I said the scope and detail of the representation is important.  

[That Aud Smell]

See NYS Rule 1.16.  It is not limited to representation before a tribunal.

 

True, true. Eoannou's approach was just tribunalish -- the whole explanation thing. Why not just quietly fire the client? Well, the reason being ... he needed to correct what he'd said (which had been false). *Sigh*

 

The accuser has no "interests" in the criminal case.

 

I understand what you're saying, and I'm aware of that paradigm.

 

However, the law on whether and the extent to which an alleged victim has a legally cognizable interest in a prosecution is evolving. There was a case argued on this point before the Supreme Court in 2014 -- I'm not sure how it turned out, actually. Anyway, state and federal acts regarding crime victims' rights certainly indicates recognition of a private interest.

 

The structure of the agreements you mention are where the devil lies.  An agreement between x and y for y to represent z creates a financial conflict for y if his counsel may cause x to refuse to pay.  Absent a civil action where a contingency arrangement would eliminate any consideration of x's input, it is a conflict.  That is why I said the scope and detail of the representation is important.  

 

A conflict, but a waivable one. Those kinds of representations occur on the regular -- in the insurance context, for starters. But that is not the only such scenario.

[Fuzzy Dunlop]

This has been quite a circus over the past 2 days, but it appears to me that it won't have any bearing on the case unless the accused was aware of what her mother did.

 

As it stands now, the evidence has been handled properly and the DA will be making a judgement as to whether to present the evidence to a grand jury or to drop the investigation. Either there is enough evidence of a crime being committed to indict Kane or if not, to absolve him. I'm just glad that the evidence tampering was a hoax and that the system is working as it should.    

[3putt]

True, true. Eoannou's approach was just tribunalish -- the whole explanation thing. Why not just quietly fire the client? Well, the reason being ... he needed to correct what he'd said (which had been false). *Sigh*

 

 

I understand what you're saying, and I'm aware of that paradigm.

 

However, the law on whether and the extent to which an alleged victim has a legally cognizable interest in a prosecution is evolving. There was a case argued on this point before the Supreme Court in 2014 -- I'm not sure how it turned out, actually. Anyway, state and federal acts regarding crime victims' rights certainly indicates recognition of a private interest.

 

 

A conflict, but a waivable one. Those kinds of representations occur on the regular -- in the insurance context, for starters. But that is not the only such scenario.

I don't think we are disagreeing on the fundamentals, but as the saying goes, change the facts change the law.  I am quite sure the eventual relationship would have been Eoannou representing her in a tort case, but without an actual case, there is no possible compensation and hence a conflict.  Your insurance example is a good one but those are contracts.  part of what you pay for is representation up to the extent of the policy coverage.  The moment it is estimated that the damages could exceed that coverage, you are normally put on notice to retain counsel.  The carrier will represent you but it is only obligated to pay the coverage amount.  

 

The crime victims rights are a different situation.  Most if not all the statutes preclude the convicted from benefiting monetarily from the crime.  Book rights etc. are used to compensate victims and to give victims some say in whether the stories can be commercialized.  I am unfamiliar with USC case you mentioned but will look it up.  

[That Aud Smell]

I am quite sure the eventual relationship would have been Eoannou representing her in a tort case, but without an actual case, there is no possible compensation and hence a conflict.  

 

No way Tom would represent her in a tort matter. I think she/they has/have separate counsel retained for that, actually. And he was evidently being paid for his time. In any case, I'm not sure why an absence of possible compensation would create a conflict.

Your insurance example is a good one but those are contracts. 

 

Sure. But I've represented people in scenarios where other persons - natural and otherwise - have paid for the work (for a variety of reasons). It's just not an unusual scenario.

The crime victims rights are a different situation.  Most if not all the statutes preclude the convicted from benefiting monetarily from the crime.  Book rights etc. are used to compensate victims and to give victims some say in whether the stories can be commercialized.  I am unfamiliar with USC case you mentioned but will look it up.  

 

I didn't mean to confuse matters with the victims rights statutes (which go well beyond approval of book deals for the convicted). Point being, victims have personal interests to protect in prosecutions, to varying degrees. If they didn't, there would have been no reason for this family to hire Eoannou.

[3putt]

No way Tom would represent her in a tort matter. I think she/they has/have separate counsel retained for that, actually. And he was evidently being paid for his time. In any case, I'm not sure why an absence of possible compensation would create a conflict.

 

Sure. But I've represented people in scenarios where other persons - natural and otherwise - have paid for the work (for a variety of reasons). It's just not an unusual scenario.

 

I didn't mean to confuse matters with the victims rights statutes (which go well beyond approval of book deals for the convicted). Point being, victims have personal interests to protect in prosecutions, to varying degrees. If they didn't, there would have been no reason for this family to hire Eoannou.

Do you represent clients in legal matters?  

 

EDIT:  Not trying to be snarky just curious if we are talking about the same profession and thus the same professional ethical concerns.

Edited September 25, 2015 by 3putt

[LGR4GM]

ever re-read the last 4 pages of a thread and just smile a little?  I did.

[Eleven]

No way Tom would represent her in a tort matter. I think she/they has/have separate counsel retained for that, actually. And he was evidently being paid for his time. In any case, I'm not sure why an absence of possible compensation would create a conflict.

 

Sure. But I've represented people in scenarios where other persons - natural and otherwise - have paid for the work (for a variety of reasons). It's just not an unusual scenario.

 

I didn't mean to confuse matters with the victims rights statutes (which go well beyond approval of book deals for the convicted). Point being, victims have personal interests to protect in prosecutions, to varying degrees. If they didn't, there would have been no reason for this family to hire Eoannou.

 

Yes.  This happens a lot.

[...]

Eoannou referred to the accuser in the bag press conference as "my client", if that helps your discussion. Just an innocent bystander here interjecting, don't sue me.

[3putt]

The accuser's family could have been worried about self incrimination, defamation, or a myriad of other matters.  Personal counsel is not unheard. of in such situations.  Advising on the process and sharing experience is often money well spent.  Actively advocating a position such as evidence tampering changes the scope of an advisory relationship.  If he subsequently discovered that to be unfounded he can no longer advocate it.  At that point his mere association is problematic.  Query: Suppose he is questioned about facts concerning the bad by the prosecution.  Keeping in mind attorney client privilege, does he disclose conversations between himself and Mom if he is representing the family?  Does he disclose conversations with mom when he is representing the accuser if said information could be a detriment to the accuser's case?  Does he disclose information about the accuser if the relationship is between MOm and attorney?  All of these are situations which the Ethics Rules attempt to discourage due to the inherent conflict they MAY create.  I do not know the facts of the representation and perhaps you do, but exclude what you know of the attorney's personal situation and look at the hypothetical man.  The drafters try and cover as much ground without exception for individual circumstance.

Eoannou referred to the accuser in the bag press conference as "my client", if that helps your discussion. Just an innocent bystander here interjecting, don't sue me.

Again, I believe he was acting in an honorable and ethical manner unless proven otherwise and I believe he thought he was acting in the best interest's of the accuser.  But that one misstep is hard to sweep under the rug and would have been best handled by turning over all evidence to the prosecutor and let them investigate.  

 

I no longer sue anyone.  I advise.

[That Aud Smell]

Actively advocating a position such as evidence tampering changes the scope of an advisory relationship.  If he subsequently discovered that to be unfounded he can no longer advocate it.  At that point his mere association is problematic.  Query: Suppose he is questioned about facts concerning the bad by the prosecution.  Keeping in mind attorney client privilege, does he disclose conversations between himself and Mom if he is representing the family?  Does he disclose conversations with mom when he is representing the accuser if said information could be a detriment to the accuser's case?  Does he disclose information about the accuser if the relationship is between MOm and attorney?  All of these are situations which the Ethics Rules attempt to discourage due to the inherent conflict they MAY create.  I do not know the facts of the representation and perhaps you do, but exclude what you know of the attorney's personal situation and look at the hypothetical man.  The drafters try and cover as much ground without exception for individual circumstance.

 

I'm getting a little fuzzy on what you're asking or getting after. I'm not limiting the analysis to Eoannou.

 

I would have to think that he set this up so that both the mom and daughter were cloaked in privilege when he was retained, whether one or both were designated as his clients. I don't imagine he would disclose any confidential communications in the course of an ongoing representation. He might make proffers of fact that he had learned in the course of such communications, if he thought the same would advance or indicate his client's position (as he did with the bag), but there'd be no need for him to divulge privileged communications themselves.

 

In terms of what he would say to Mom or daughter or Dad -- these kinds of joint engagements always say: I will hold no confidences from or among you; everyone within this confidence will know everything, or be entitled to know everything. Again, there's a conflict there, but it is waivable.

 

Of course, once he was lied to in connection with the representation, all bets were off and he was entitled to withdraw. He was further entitled to make a public statement disavowing what he'd said the day before. 

Edited September 25, 2015 by That Aud Smell

[3putt]

I'm getting a little fuzzy on what you're asking or getting after. I'm not limiting the analysis to Eoannou.

 

I would have to think that he set this up so that both the mom and daughter were cloaked in privilege when he was retained, whether one or both were designated as his clients. I don't imagine he would disclose any confidential communications in the course of an ongoing representation. He might make proffers of fact that he had learned in the course of such communications, if he thought the same would advance or indicate his client's position (as he did with the bag), but there'd be no need for him to divulge privileged communications themselves.

 

In terms of what he would say to Mom or daughter or Dad -- these kinds of joint engagements always say: I will hold no confidences from or among you; everyone within this confidence will know everything, or be entitled to know everything. Again, there's a conflict there, but it is waivable.

 

Of course, once he was lied to in connection with the representation, all bets were off and he was entitled to withdraw. He was further entitled to make a public statement disavowing what he'd said the day before. 

I believe my original reply, admittedly obtuse, stated that the relationship and scope of representation needs to be carefully crafted.  This is to alleviate the issue of having to sever a part of the representation later or as in this case terminating it altogether.  Joint rep agreements are reliant upon all parties having mutually aligned interests.  These need to be aligned at the start.  In this case, the accuser has an interest in due process, the other members do not.  They may desire it for the daughter but they have no stake.  

There was an inherent conflict in doing anything at the behest of anyone other than the accuser.  Not all conflicts are waivable. And those waivers beget additional concerns.  Once the interests failed to align and as in this case conflict (Mom maybe facing obstruction charges or filing a false statement with police) the attorney must sever the joint relationship  or terminate all involvement.

 

You contend that the accuser has an interest in the criminal proceeding other than her constitutional right to due process and I disagree absent a reversal of Linda R.S v Richard B (1973).  Any action taken sua sponte put the accusers best interests at stake.  I do not have the agreement to review.  Notwithstanding, he made a bad decision to intrude upon the traditional domain of the prosecutor.  He could have made an ally, but instead, through circumstance, impugned the credibility of key witnesses in the investigation namely the mother.  

 

I think that is clear.  We disagree on any private interest and the wisdom of representing families in instances like this. 

 

I enjoy your engagement and think this is an interesting topic, but it has now transcended an interpretive reading to an opinion on my part.  There may not be anything further to gain. 

[PASabreFan]

3putt, do you mind if I take it from here?

[beerme1]

 

don't sue me.

 

 

:lol:

[3putt]

I think the horse has taken enough whacks.