When cornered, cry "bigotry"

Robert Spencer

Responding to the Mapping Sharia press release "CAIR Involved in Criminal Fraud," Junaid Afeef at An American Muslim Journal claimed that "Yerushalmi's group twists facts against CAIR," making the usual tired charges of "hate" that are always leveled against those who stand for human rights against Islamic supremacism. The whole exchange is yet another example of how anti-jihadists make specific and documented charges, whereupon Muslims respond with blanket assertions that the charges are false, but supply no evidence to make their case, and claim they are victims of bigotry. It's a little ballet that gets danced out again and again and again.

David Yerushalmi responded to Afeef's initial posting with this email:

Dear Mr. Afeef: Someone sent me a link to your blog entry speaking about the Mapping Sharia press release. Insofar as you are a lawyer and as one associated with CAIR, my professional responsibilities suggest I point out a few concerns to you regarding making legal pronouncements in public.

First, Morris Days was an employee of CAIR as they represented him in the open source documents we provided.

Second, Days’ criminal fraud and unauthorized practice of law was conducted while he was employed by CAIR. The victims came to CAIR for representation and they most assuredly understood that CAIR was representing them through Days.

Third, after CAIR discovered the fraud, they had a plethora of ethical responsibilities to the victims, to their profession under the ethics codes of the bar associations of Virginia, Maryland, and Washington, D.C. They also had responsibilities under the criminal code of the jurisdictions in which they operated for the proper reporting of a felony, preservation of evidence, and an affirmative duty not to obstruct justice.

When CAIR, as a public interest law firm, then undertook to enter into agreements to settle a potential liability with victimized clients, they had affirmative duties under the ethics codes to inform the clients in writing that they should obtain independent counsel. CAIR did no such thing. Further, CAIR then, while occupying an adversarial position with these victims, undertook to represent them in the matters which had become the point of potential liability for CAIR.

You are no doubt aware, or at least the lawyers in the CAIR DC office were no doubt aware, of the following provisions of the DC Bar Ethics Code:

Rule 4.3—Dealing With Unrepresented Person
(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
(1) Give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client; or
(2) State or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer’s client that the lawyer is disinterested.
(b) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Also,

Rule 1.8—Conflict of Interest: Prohibited Transactions
(f) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(g) A lawyer shall not:
(1) Make an agreement prospectively limiting the lawyer’s liability to a client for malpractice; or
(2) Settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

Comment: [14] Agreements settling a claim or potential claim for malpractice arising out of the lawyer’s past conduct are not prohibited by Rule 1.8(g). Nevertheless, in view of the danger that the lawyer will take unfair advantage of an unrepresented client or a former client, the lawyer must first advise such a person in writing of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel. Settlement of a potential claim most often will occur in the context of the resolution of an actual dispute between the attorney and the client, whether concerning the claim itself or a dispute concerning fees. The rule does not authorize the lawyer to solicit a blanket release from the client as a routine incident of the conclusion of the legal representation.

And, relevant is Rule 1.9 where CAIR lawyers represented CAIR as an organization to enter into a settlement agreement with a former client and then went on to represent those victims in the very matters that created the potential liability for CAIR in the first instance:

Rule 1.9—Conflict of Interest: Former Client
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

I close with this. It is one thing for you as a non-lawyer to wax on about the facts and the law. It is quite another for you as a lawyer working with CAIR to make a statement to the public representing certain facts and CONCLUSIONS of law which are manifestly at odds with reality. I would advise you as a fellow officer of the court to modify your blog entry such that it is not further participating in a public fraud on these victims who might read your blog and on the public who relies on such statements when making donations to CAIR. This is not a matter of “blogosphere” inanity nor is it a matter to take lightly. Criminal laws have been violated. Ethics codes have been manifestly violated. Unless you want to be drawn into the matter, act as an officer of the court and treat your public pronouncements seriously. You can rest assured, we will treat them with all seriousness.

Afeef replied:

Mr. Yerushalmi: Thank you for taking the time to write to me.

Your message to me below is inaccurate. Furthermore, I do not share your opinions and points of view as set forth in your email to me.

American Muslims are being attacked by bigots in public services, employment and in the private arena. The Council on American Islamic Relations has been and continues to do wonderful work fighting for the rights of American Muslims.

Your "alert" which was the subject of my blog entry is an example of an effort to besmirch CAIR's reputation and I object to it.

Please check your facts more thoroughly. I will not be making any changes to my blog.

That said, I do thank you again for writing to me. I hope you have a wonderful day.

Sincerely,
Junaid M. Afeef

And Yerushalmi's further reply:

Dear Mr. Afeef:

I admire your loyalty but you seem to be forgetting the very real Muslim victims in this case. You don’t indicate what it is that is “inaccurate”, which leads me to infer that you either don’t know the facts and simply authored your blog blindly at the behest of your friends at CAIR or you do know the facts and are being dishonest. The evidence of criminal behavior runs deeper than what we made public. How much do you actually know?

Furthermore, you also no doubt know that CAIR’s connection to the Ikhwan and Jihad has been well documented. That they have done some good along the way is the excuse proffered by many in their situation. I can also assure you the Muslim victims in this case do not share your opinion of CAIR. It is odd that you summarily dismiss the harm and damages they suffered at the hands of CAIR’s staff. Do you suppose that CAIR’s responsibility was limited only to paying some of them their out of pocket expenses? What of the time delays and prejudice to the matters for which they were seeking assistance? What of the emotional distress? Are you not aware of CAIR’s initial response to most of these victims? It was most assuredly not a contrite one.

Given your position on modifying your blog entry, I would direct your attention to the following provision of the Illinois code:

RULE 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not:

(a) make a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

You of course will decide for yourself what is your professional and civic responsibility in this matter. Prudence is almost always a virtue.

Afeef, you may recall, is the man who claimed that Barack Obama is a victim of "Islamophobia."