When the Leak is the Story
Tax investigations are private matters. Strict rules prevent federal officers from telling us that a citizen is under investigation. And for good reason -- Lots of innocent people are investigated. It should go without saying that it's called an investigation for a reason.
Yet the LA legal community knows that one of its stars was under investigation for tax evasion. [No, I'm not going to further harm this lawyer's reputation by naming him.] We know because in May '03, someone told a Los Angeles Daily Journal reporter.
Why was this leaked? We don't know, but there is one very juicy theory.
After the leak, the United States Attorney's office moved to disqualify this attorney from further civil rights litigation, writing that: "Where ... an attorney opposing a prosecutor's office in an action is being investigated by the same prosecutors office [there is a possibility for a conflict of interest.]" In other words, the government argued that this lawyer might sell out his clients for a better deal.
The judge who heard the motion flipped out, and threatened the AUSA bringing it with sanctions. Suggesting that this civil rights legend would sell out anyone to the government, was, at best, scandalous. Anyhow, you probably smell fish.
Hmmm.... first a leak and then a motion to disqualify. Indeed, shutting down this lawyer would have been a tactical coup. Judge Alex Kozinski noted that this lawyer "has a formidable reputation as a plaintiff’s advocate in police misconduct cases; defendants in such cases may find it advantageous to remove him as an opponent."
The government lost the motion, and the lawyer's clients sued several AUSAs. The clients alleged that the AUSAs leaked information about the investigation as a litigation strategy,
and that this strategy violated their right to counsel.
Now the lawyer wants to know who squawked to the reporter at the Daily Journal. The Daily Journal is resisting this effort. They've hired Los Angeles' top litigation botique to resist the subpoena. They got to protect sources, because protecting sources will lead to more news.
What's newsworthy -- That a local attorney is under investigation for tax evasion, or that someone potentially within the government is leaking information about confidential investigations? According to the Daily Journal, serving the dish about a celebrity lawyer is more newsworthy than exposing moles.
To me, that someone within the federal government is leaking confidential information about an American citizen is more newsworthy than a garden variety tax case. So why doesn't the Daily Journal publish a real story -- Come on, folks, tell us who's spilling the beans.
Although I have not read his decision to see how refined his test was (or even if he attempted to enunciate a test greater than "in this case..."), and although many others seem to hate the deicision, the judge in the Apple case may be on to something in suggesting that the focus of a journaistic privilege should be less upon who is doing the reporting and more upon whether the story advanced through the "confidential source" is newsworthiness (""Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, [the sites] are doing nothing more than feeding the public's insatiable desire for information.") The notion some have advanced, that you should somehow be associated with a popular or mainstream news outlet to enjoy status as a "reporter" who can claim privilege has the odd effect of leaving unprotected a serious news source that lies outside of the mainstream, while granting broad privilege to food critics, agony aunts and gossip columnists.
Leaking news that a high profile lawyer may be under investigation for tax evasion seems to me to be more like celebrity gossip than news reporting.
Posted by: Aaron | March 21, 2005 at 05:17 AM