March 3, 2021

Common Sense: A Murdoch’s Missed Opportunity

After four years of silence, and just hours after the News Corporation said it would stop paying, he stepped before television cameras outside his home to say, “I have no further comment to make at this stage.” He added, “This may change.” Mr. Mulcaire is said to employ a lawyer full time as well as several more part time, an arrangement he surely can’t afford for long on a private investigator’s income.

In Parliament, the Labour member Paul Farrelly asked James Murdoch, who heads the company’s international operations, if he understood why people might interpret paying those legal fees as an effort to buy the private investigator’s cooperation or silence.

Mr. Murdoch murmured his agreement, saying his lawyers had told him “it’s important and customary” to pay such fees. “I’ve asked for those things to cease.”

After the company cut Mr. Mulcaire loose, two former executives came forward to accuse Mr. Murdoch of being “mistaken” in his testimony to Parliament about his knowledge of phone hacking. Now Mr. Murdoch is under investigation for potentially misleading Parliament.

As Mr. Farrelly put it, “It now seems to be everyone for themselves. The edifice is cracking. They’re all fighting like rats in a sack.”

However controversial in Britain, the practice of companies’ paying their officers and employees’ legal expenses in criminal investigations is not only routine in America but has been elevated by some to the status of a constitutional right. A little-discussed but open secret among defense lawyers and prosecutors alike is that who pays the legal fees often decides the outcome of an investigation.

As John C. Coffee Jr., Berle professor of law at Columbia, told me: “Someone whose legal fees are not paid may have a strong and urgent need to cooperate with the government. The employee, if he can’t afford to defend himself, has to cut a deal, and he might, shall we say, color his testimony. Who’s going to get the benefit of that, the company or the government? Lawyers know very well how to coach witnesses on what to say without telling them to lie.”

Confronted in the 1990s with an unprecedented wave of white-collar crime at major corporations like Enron and WorldCom, Justice Department prosecutors grew exasperated with companies that made public pledges to cooperate with investigators only to unleash a phalanx of defense lawyers bent on anything but.

In 2003, when he was chief of the Justice Department’s criminal division, Larry Thompson wrote that a factor in whether a company, as opposed to individuals, would be charged with a crime would be the extent of its cooperation, one measure of which “is whether the corporation appears to be protecting its culpable employees and agents,” among other things, “through the advancing of attorneys fees.” Mr. Thompson might well have added lavish severance packages and other forms of hush money to the list.

In 2005, the accounting firm KPMG admitted to creating fraudulent tax shelters that enabled wealthy clients to evade $2.5 billion in federal taxes, and six former partners, including the firm’s former deputy chairman, were indicted. KPMG, as it had in the past, paid their legal bills. All pleaded not guilty and declined to cooperate with the government.

As an accounting firm dependent on public trust, KPMG recognized that its survival depended on the firm’s escaping criminal charges. At a meeting with prosecutors, the firm’s lawyer, Robert Bennett, emphasized that KPMG “had decided to change course and cooperate fully.” The prosecutors zeroed in on the issue of legal fees, with one saying that “misconduct should not be rewarded” and another warning that with respect to legal fees, “we’ll look at that under a microscope,” according to notes taken at the meeting.

Article source: http://feeds.nytimes.com/click.phdo?i=e50769ec3c79c874d7aa2af06d601f4b

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