Don’t annoy your lawyer

August 19, 2011 § Leave a comment

Since this blog bills itself as “from the Department of Systems Biology at Harvard Medical School”, I’ve tried really hard to stick exclusively to science and science-related issues in my posts.  OK, I’ve allowed the odd movie review or holiday gift guide to sneak in, but for the most part those involve science as well (or I manage to make some pretence that they do).  But I recently read something absolutely fascinating that has nothing at all to do with science, and I can no longer restrain myself.  Think of it as my summer indulgence.

The fascinating document might seem rather dull at first look, but bear with me.  It’s a letter submitted to the Culture, Media and Sport (CMS) committee of the UK House of Commons by a firm of lawyers.  Bo-ring.  But the main business of the CMS committee these days is to examine the “who knew what when” question in the unfolding drama of the phone hacking scandal.  If you haven’t been following the phone hacking saga, you’re probably not British.  It started with the discovery in about 2005 that News of the World journalist Clive Goodman had been hacking into the phone calls of members of the royal family, with the help of a private investigator.  Goodman went to jail, and News International, the parent company of News of the World (hereinafter, NoTW), maintained for years that Goodman was a lone rogue and that nobody else had any knowledge of his illegal activities.  Which has turned out, to put it mildly, to be untrue; almost everyone remotely interesting in the UK appears to have had their phones hacked, from movie stars to footballers (a.k.a. soccer players).  Most shockingly, a missing girl’s voicemail was hacked and some of the messages were deleted; this appears to have been done in order to leave space for new, possibly newsworthy, voicemails, but the agonizing result was that the girl’s parents were given hope that she was still alive and free to use her phone (she turned out to have been murdered).

News International’s owner, Rupert Murdoch, is still claiming that even if NoTW was corrupt the larger company was blameless, and one of the claims he has been making is that News International commissioned a firm of lawyers, Harbottle and Lewis, to “figure out what the hell was going on” at NoTW shortly after Goodman’s evildoing was discovered.  Harbottle and Lewis, allegedly, gave the company a clean bill of health, and News International believed them and went on their merry way rejoicing.  Now they are shocked, shocked to find that Harbottle and Lewis were wrong.  If only the lawyers had done their job properly, Murdoch seems to be saying, the whole scandal wouldn’t have happened.

Well, now.  Harbottle and Lewis might have another point of view on that question.

A couple of days ago the Culture, Media and Sport Committee released several documents relevant to the scandal.  One was a letter Clive Goodman wrote to the NoTW in 2007, just after getting out of prison — when they refused to give him back his old job — in which he claimed unfair dismissal because, essentially, everyone knew what he was doing and approved it.  He also claimed that he had been promised his old job back if he kept quiet about the fact that other NoTW employees were similarly implicated.  (He still didn’t get his job back.)  Another was a letter from Harbottle and Lewis (“Attachment from Harbottle and Lewis, 11 August”).  This letter is an object lesson on why you should never, ever, annoy your lawyers.  They know too much about you.

News International needn’t have brought Harbottle and Lewis into the limelight at all, but they did, and what’s more they blamed the firm for making a major mistake.  Harbottle and Lewis evidently felt that their reputation was on the line, and responded vigorously.  There are three main points in the letter, as I read it, each of which does significant damage to News International:

1.  Harbottle and Lewis were never retained to “figure out what the hell was going on”.  They are experts in civil law, not criminal law and would have refused any commission remotely like the one quoted.  They were retained solely to take a look at Goodman’s claim that he had been unfairly dismissed, and to review a set of e-mails (provided by News International) from people who had worked with Goodman to see whether there were any smoking guns to prove that he had been unfairly dismissed.  Their advice to News International was limited to saying that as far as they could tell there were no smoking guns of precisely that sort: but, they happen to have kept all the e-mails given to them in hard copy, which apparently no longer exist at News International, and they’ve given them to the Committee and the police, who can now look for more and different smoking guns. Ouch.

2.  It is ludicrous for News International to suggest that a 2-week-long investigation of a limited set of e-mails provided by News International could ever have been thought of as an attempt to “figure out what the hell was going on”; the investigation cost a paltry £10,294 (about $15,000), as clear a signal as anyone needs that it was not a major investigation of major wrongdoing.  The way the lawyers feel about this can be gleaned from the following sections of their letter:

“There was absolutely no question of the Firm being asked to provide News International with a clean bill of health which it could deploy years later in wholly different contexts for wholly different purposes… The Firm was not being asked to provide some sort of “good conduct certificate” which News International could show to Parliament, or the police, or anyone else outside the context of Mr. Goodman’s employment claim.  Nor was it being given a general retainer, as Mr. Rupert Murdoch asserted it was, “to find out what the hell was going on”… If News International had ever approached the Firm (as it should have done) to seek consent for the 29 May 2007 letter being deployed before Parliament as evidence of its corporate innocence, the Firm would not have agreed without further discussion.  The reason for that is that the exercise which was done in 2007 was simply not one which was designed to bear the weight which News International now seeks to place upon it…”

The clear implication is that Rupert Murdoch must have been at the very least confused (if not lying outright) when he claimed that News International felt that Harbottle and Lewis had proved that all was well at the NoTW and that no further investigation was necessary.  Ouch #2.

3.  If News International had really wanted to find out “what the hell was going on” they would have retained a different firm, with expertise in criminal law.  Actually, they did retain a firm with expertise in criminal law a couple of years later, the firm of Burton Copeland.  Having pointed out that the interaction between News International and Burton Copeland is likely to be much more interesting than their own work, Harbottle and Lewis then offer the CMS Committee some legal advice, absolutely free.  The advice is that News International may already have waived attorney-client privilege with regard to their interactions with Burton Copeland:

“In civil litigation, if a party deploys in evidence privileged material, then he waives privilege in all associated material so that the Court and the other party can see that what has been released from privilege is a fair account of the advice received and that a misleading impression has not been created.”

They then list many examples of News International quoting from the advice they received from Burton Copeland, and suggest that the Committee may therefore have the right to require News International to disclose everything that they told Burton Copeland, as well as all the advice Burton Copeland gave them.  This may turn out to be the biggest ouch of all.

Can’t wait to see what happens next.

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