[In the following review of The Crime of Sheila McGough, Citron expresses amazement at the glaring mistakes committed by McGough in her relationship with client Bob Bailes. Citron is taken aback by McGough's lack of judgment and her professional improprieties.]

I remember sitting in an uncomfortable seat on the first day of law school, listening to interminable welcome messages, when the dean himself walked into the well of the lecture hall. Without greeting or preliminaries of any kind, he leaned into the microphone and solemnly intoned three words: “Don't commingle funds.” And then in case he hadn't made himself clear, he repeated the incantation: “Don't commingle funds. If you forget everything else you learn here, never forget that.” Sheila McGough should have been there.

McGough was an attorney in Alexandria, Virginia, who in 1986 supposedly conspired with one of her clients to defraud investors. The federal indictment, which ran to fifteen counts, charged her with various forms of fraud, conspiracy, receiving stolen money, obstruction of justice, witness intimidation and perjury. In the fall of 1990. McGough was found guilty of most of it and eventually went to prison for two and a half years. In 1996, about a year after being paroled, she wrote to Janet Malcolm complaining that she had been “framed” by the US Attorney in Virginia, a man conveniently named Hulkower.

Janet Malcolm is herself no stranger to the legal system. In 1984 she was sued for libel by Jeffrey Masson in connection with her New Yorker articles about him, published that year by Knopf as In the Freud Archives. The case generated two jury trials and several appellate opinions, including one from the US Supreme Court. Malcolm was eventually vindicated, but the acrimonious litigation lasted some twelve years. Whether for this or other reasons, Malcolm found McGough's letter intriguing and undertook a journalist's investigation of the case—one not bound by rules of evidence or hampered by the limited time and resources that are the lawyer's lot. The Crime of Sheila McGough is the uncertain result.

I mean “uncertain” in various ways. One uncertainty is the nature of the legal violation announced in the book's title. Just what was the Crime of Sheila McGough? According to Hulkower, McGough ran afoul of the law by distributing from her lawyer's trust account funds that were allegedly to have been held there in escrow. McGough's version of her transgression, as she described it in her initial letter to Malcolm, is that she “irritated some federal judges and federal prosecutors in the course of defending a client,” as a result of which the US Attorney's office “made up some crimes for [her] and found people to support them with false testimony.” In Malcolm's narrative, the crime that McGough was prosecuted for “was the crime of not letting go, of not accepting the unwritten law of closure.” Incredible as it may seem, Malcolm argues, this woman of “preternatural honesty and decency” went to prison for two and a half years just for being irritating.

Whether one views the protagonist as a criminal, a martyr, a scapegoat, a dupe, or a dope (Malcolm herself can't decide between Antigone and Creon, for example) depends on which plot the reader assembles from the various possibilities Malcolm offers. The tale I read with my lawyer's eye goes something like this. One day, Sheila McGough received a collect call from the Fairfax County jail. The call came from someone named Bob Bailes who was being held on a warrant from North Carolina and was looking for legal help. McGough, an inexperienced criminal defense lawyer, obliged. She immediately went to the jail and, utterly charmed by her new client, signed the bail bond herself.

It is not surprising that Bailes would have charmed the naïve McGough, for he was a con man of considerable talent and ingenuity. But it is startling that an attorney—no matter how naïve and inexperienced—would play bail bondsman for any client, let alone one she had just met and about whom she knew nothing. This is something that attorneys never do, as McGough herself acknowledges to Malcolm.

Thus began an association during which the lawyer defended her client on various state and federal charges. In one case, she defended Bailes against various bank fraud charges arising from his supplying false information to three different banks in order to secure a loan. She lost at trial and on appeal she attacked “nearly every piece of the government's evidence.” The court rejected what it termed her “creative but meritless arguments” and affirmed Bailes' conviction.

While McGough was working on her client's defense, her client, out on bail, was running his cons from her office. Bailes helped himself to McGough's telephone, copier, typewriter—and lawyer's trust account. The con that landed both of them in jail went like this: Bailes claimed to own certain insurance companies that had been chartered before insurance became regulated. These charters—if one were to believe Bailes—allowed the companies to sell insurance without setting aside reserves to pay out claims, a virtual license to print money, as one observer put it. He advertised the companies for sale in the Wall Street Journal (Malcolm learned that at one time the FBI assigned a full-time agent to monitor the classifieds in the Wall Street Journal), and when he had hooked a sucker, he had the ＄75,000 down payment wired to McGough's lawyer's trust account.

And now welcome to what the law calls the gravamen of the charges against her. Preoccupied with preparing her client's defense and not paying attention to much else, McGough followed Bailes' instructions to withdraw the money from the trust account, to keep ＄5,000 as payment for services rendered, and to turn the remainder over to him. When the scam fell through, the mark wanted returned to him the money he had deposited, as he claimed, in escrow. An escrow fund is used to hold “in-between” money, funds that the buyer gives up some control over but that don't yet belong to the seller. A tenant with no heat might put her rent into an escrow account until the landlord fixes the furnace; she meets her legal obligation to pay rent but makes sure that the landlord can't get the benefit of it until he meets his legal obligation to provide heat. Money held in escrow is understood to be under the control of a disinterested third party. In this case, Bailes' buyer decided that the deal smelled bad and that he would pull his money out. But McGough had already withdrawn the money, in accordance with instructions from her client, and had handed ＄70,000 over to Bailes.

What is wrong with this picture? To begin with, a lawyer's trust account is just that—a trust, not an operations account. It is intended to hold money that doesn't belong to the lawyer (even if the lawyer will eventually claim a portion of it as her fee), nor even, in many examples, to her client. And, of course, a lawyer's trust account is controlled by the lawyer, not by a client who has no business camping out in her office in the first place. It is unthinkable that an attorney would disburse from her trust account funds whose origin was obscure and whose purpose was unknown to her. And it is unbelievable that such a withdrawal and disbursement would occur without the attorney's writing letters to everyone in sight documenting what she was doing and why. McGough did everything wrong. But Malcolm is persuaded—and she persuades us—that none of it was done dishonestly.

Privately, McGough denied that she had ever agreed to be an escrow agent or that the investor was entitled to back out of the deal without penalty; however, she refused to assert this defense at trial. To do so would have meant testifying, undergoing cross-examination, and being forced to answer questions about Bailes' affairs. Rather than betray client confidences, the criminal defense attorney presented no defense at all.

Now, while the profession takes client confidentiality very seriously and attorneys can be severely disciplined for breaches, a few situations will release attorneys from their obligations to remain silent. Not surprisingly, establishing a defense to a criminal charge or civil claim is one of them. But McGough thought that being innocent was a sufficient defense. She declined to offer any evidence that might raise a reasonable doubt in the mind of a juror. This was sheer folly. As a criminal defense lawyer herself, McGough should have known that innocence, alas, is nothing and that a reasonable doubt in the mind of a single juror is everything.

There is, I suppose, a certain nobility to McGough's protecting the confidences of a sociopath whose imagination and skill with Xerox machines and white-out have put her in the way of a fifteen-count federal indictment. Or there would be if she held to the position consistently. But she had no reservations about discussing Bailes with Janet Malcolm. The difference, the lawyer explained to the journalist, was that Bailes had recently died in prison (he'd received a 25-year sentence on the insurance scam) and nothing that McGough said could harm him.

Malcolm never questions McGough's reasoning, but this failure on the part of the attorney to understand basic principles of client confidentiality is breathtaking. The attorney-client privilege does not belong to the lawyer to assert or waive as she thinks fit. It belongs to the client; and it doesn't cease with the client's death. While it is perfectly appropriate to breach confidentiality in offering a truth that will save one from prison, it is never appropriate to breach confidentiality simply because the client is dead.

Or consider this episode from the civil trial that preceded the criminal one (for McGough was sued in a civil action by the owner of the disappearing ＄75,000). McGough visited a defense witness the night before he was to testify for her in the civil trial. The visit was made to his hotel room and McGough went alone. When the witness subsequently claimed that at that visit she had improperly asked him to notarize old signatures, she had no recourse but an uncorroborated denial. An attorney who is a defendant in an ongoing case should know better than to meet with a witness without her attorney present. Even if the witness lied (as he almost certainly did), even if Malcolm is right that the truth is messy and can't overcome a good story, what on earth was McGough doing there?