The co-chair of Willkie Farr, Gordon Caplan, was named today in an unsealed federal indictment. The result of an FBI investigation dubbed “Operation Varsity Blues,” Caplan, as well as dozens of other well-to-do parents, was involved in what the U.S. Attorney’s Office calls a “nationwide conspiracy that facilitated cheating on college entrance exams and the admission of students to elite universities.”
Caplan, a lawyer who has practiced for 25 years without any published discipline, was charged with conspiracy to commit mail fraud and honest services mail fraud.
According to the criminal complaint, Caplan paid $75,000 for someone to proctor an admissions exam for his daughter and then adjust her answers to ensure she received a predetermined score. Part of the scheme also involved Caplan taking his daughter to a certain psychiatrist, who would then support a claim that she qualified for extended test time for the ACT. The complaint alleges that between June and December 2018, Caplan worked with middleman William Singer to guarantee that his daughter, who had scored in the low 20’s on an earlier test, would end up with an ACT score of 32.
Caplan suddenly has a lot on his plate, and it is not billable (at least by him).
Of course, the most serious exposure he faces is from the criminal charges. The maximum punishment for conspiracy to commit wire fraud is 20 years in prison.
There is of course the damage inflicted on his reputation, which may be immeasurable. It would also seem highly unlikely that the Willkie firm would allow itself to be managed by Caplan at least until the criminal case is resolved. In fact, news reports today indicate that Caplan has been given an indefinite leave of absence from the firm and is relieved from all management responsibilities at this time.
That is not the only thing. The result of the criminal case could have serious ramifications for Caplan’s legal career. A felony conviction in many jurisdictions, including New York where Caplan is admitted, generally warrants disbarment.
Even an acquittal from the criminal charge, or conviction of a lesser offense, would not resolve disciplinary proceedings, which would seem to be inevitable at least based upon the current allegations. A failure to convict beyond a reasonable doubt would not prevent bar counsel from seeking disciplinary sanctions, which only need to be proven by clear and convincing evidence.
Furthermore, bar counsel does not need to prove all of the elements of fraud as alleged in the criminal case. The rules of professional conduct generally prohibit attorneys from engaging in any conduct involving dishonesty, deceit or misrepresentation. Even if Caplan is not convicted, bar counsel could still go after him for “dishonest” behavior. Disciplinary counsel thus have a much lower burden to carry to prove an ethics violation than the prosecution has in the criminal case.
Some attorneys are surprised to learn that their misconduct outside the practice of law could impact their law license. But bar counsel routinely discipline attorneys for “personal” rather than professional misconduct.
The takeaway is that when you are a lawyer, you are always a lawyer. The rules of ethics always apply. Even when you’re just trying to get your daughter into a better college.