-Caveat Lector-
Indian Case Punishment Criticized
Training Prescribed for 4 at Treasury Who Destroyed Papers
By Ellen Nakashima
Washington Post Staff Writer
Wednesday, August 15, 2001; Page A17
Their crimes were destroying potential evidence in a class action brought
by Native Americans and covering it up for three months. Their punishment?
Mentoring and communication skills training.
That was the discipline meted out to four Treasury Department lawyers who a
court-appointed special master said were involved in destroying 162 boxes
of documents as part of routine housekeeping at a department facility in
Hyattsville in 1998 and 1999. Two other lawyers deemed to have lesser
involvement received no punishment.
The news was contained in a Treasury report made public yesterday after
U.S. District Judge Royce C. Lamberth denied a government request to keep
it under seal.
"This report is a whitewash," said Dennis Gingold, a lawyer for the Native
Americans, who in 1996 sued the government for mismanaging trust funds that
the Indians claim should yield them at least $10 billion in compensation
for use of their land.
"It ignored what the special master found in 1999," Gingold said, referring
to Alan L. Balaran's report on the Hyattsville document destruction, "that
there was a pattern and practice of deception, and that these guys went
behind closed doors and decided not to tell the truth."
Gingold said the Indian plaintiffs will file a contempt motion against "all
responsible Treasury Department officials," which would include the former
general counsel, Neal Wolin, and other attorneys, and against former
treasury secretaries Robert E. Rubin and Lawrence H. Summers. Their goal is
to hold accountable those who failed to report the document destruction to
the court in a timely fashion. Rubin and Summers were responsible for their
attorneys' actions, Gingold said.
Lamberth left open the possibility that he would have to judge the
appropriateness of Treasury's discipline of its attorneys. But he praised t
he department for taking some remedial action while, he wrote, other
agencies involved in the Indian trust fund debacle have not.
"Treasury has taken a step in the right direction, a step that the Interior
and Justice Departments have not demonstrated," he wrote.
In the wake of Balaran's report on the document destruction, Treasury set
up a training session that most of its 2,000 lawyers completed. In it, they
reviewed model rules of professional conduct, federal rules of civil
procedure and the Treasury general counsel's directive on litigation.
Senior officials were also trained on records management. Attorneys were
reminded of their obligation to ensure communication of significant
information in litigation.
These steps were taken by the previous and the current administrations,
Treasury Department spokeswoman Michele Davis said in a statement, "to
ensure that the incident of 1999 does not recur."
The report, written by a panel of Treasury Department lawyers, concluded
that a "failure to effectively communicate" was at the root of the document
destruction and three-month delay in reporting. On critical occasions,
attorneys provided incomplete or misleading information. But the panel
found no "intentional wrongdoing."
The four who had significant or extensive involvement and received
mentoring or communication training were James Regan and Eleni Constantine
and former employees Daniel Mazella and Ingrid Falanga.
Two others, Roberta McInerney and Randall Lewis, were minimally involved,
the panel said, and were not disciplined.
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