Hackgate: where were the lawyers?

US scandals (Watergate, Savings and Loan, Enron and latterly Lehman) have tended to prompt the question: where were the lawyers? Indeed, Watergate is widely credited with being the first crisis to prompt a flourishing of legal ethics scholarship. Interestingly, this has not tended to happen in the UK. Solicitors have tended to avoid the controversy surrounding corporate scandals. The reasons for that are for another time but there is also a possibility that Hackgate might be about to change that. Certainly lawyers are being dragged in from the shadows and onto the stage of this particular story.

Firstly, the Press Gazette reports a Sunday Times story claiming:

“an internal report was commissioned by News International executives in 2007 which “uncovered evidence indicating that hacking was more widespread than previously admitted and that money might have been paid by the paper’s journalists to police”.

“A News International source told the paper that “we were sitting on a ticking timebomb”, but the company’s chairman James Murdoch was apparently not told about the report.

“The inquiry was launched after former royal editor Clive Goodman, who was jailed for four months for phone hacking in 2007, appealed against his dismissal by the company and claimed his colleagues were “all aware of phone hacking”.

“The Times claimed that the inquiry was overseen by NoW editor Colin Myler.

“Today’s report said: “Myler and Tom Crone, head of legal affairs for the NoW, subsequently assured the culture, media and sport parliamentary select committee in 2009 that the investigation had not revealed any wrongdoing by other reporters.””

I have looked up the evidence given to the Select Committee by Mr Crone. Here is what looks like the crucial passage:

“In the aftermath of Clive Goodman and Mulcaire’s arrest and subsequent conviction various internal investigations were conducted by us. This was against the background of a nine month massively intense police investigation prior to arrest and then a continuing investigation in the five months up until conviction. The police raided Mulcaire’s premises; they raided Goodman’s premises; and they raided the News of the World offices. They seized every available document; they searched all the computers, the files, the emails et cetera. Subsequent to the arrests they came to us, the News Group Newspapers Ltd, and made various requests to us to produce documents which they felt may be relevant. At no stage during their investigation or our investigation did any evidence arise that the problem of accessing by our reporters, or complicity of accessing by our reporters, went beyond the Goodman/Mulcaire situation. The first piece of evidence we saw of that, in terms of the management investigating, was in April 2008 when Mr Taylor’s lawyers produced two documents: the first was a February 2005 holding contract and the second was the email that was discussed here last week.”

Robert Peston on the BBC site has now indicated that a solicitors’ firm conducted an investigation at the request, it seems, of News international into these matters in 2007. The crucial passages of Peston’s story are as follows:

“In a letter presented to the Commons Culture, Media and Sport select committee, Harbottle & Lewis confirmed that it had been asked by News International to review whether the illegal actions of Clive Goodman – the News of the World’s former royal editor, jailed in 2007 for phone hacking – were known to his News of the World colleagues.

“In this letter, dated 29 May 2007, and sent to Jon Chapman of News International, Lawrence Abramson of Harbottle & Lewis wrote that it had “reviewed e-mails to which you have provided access from the accounts of Andy Coulson, Stuart Kuttner, Ian Edmondson, Clive Goodman, Neil Wallis, Jules Stenson”.

“Mr Abramson confirmed to Mr Chapman that it “did not find anything in those e-mails which appeared to us to be reasonable evidence that Clive Goodman’s illegal actions were known about and supported by both or either of Andy Coulson, the editor, and Neil Wallis, the deputy editor, and/or that Ian Edmondson, the news editor, and others were carrying out similar illegal procedures”.

“The letter from Mr Abramson to Mr Chapman makes no mention of whether the e-mails contain evidence of wrongdoing by journalists other than Mr Goodman.

“However, when William Lewis and his fellow News International executives re-acquired those e-mails from Harbottle & Lewis, they found what they perceived to be prima facie evidence that the illegal phone hacking went wider than just the activities of Mr Goodman and that there were potentially illegal payments to the police.”

I have copied the text of the letter below from the Select Committee records.

Unsurprisingly, Mr. Peston does not offer an explanation as to how the solicitors’ firm investigation came to such a different view from the one William Lewis came to. We might surmise that the context is somewhat different, and we do not know what information those solicitors were given during their investigation which may have affected how they read those emails.  We also do not know how tightly the terms of remit were drawn in the investigation. One tactic that canny clients can use, when seeking to rely on professional reputation of their independent advisers conducting an investigation, is to draw the terms of remit of any investigation very tightly, and then have the lawyers’ report (perfectly truthfully) against those. This is what seemed to happen in relation to Enron, for instance. It naturally raises the issue of whether a lawyer is wise to allow themselves to take such instructions from a client and it may even raise ethical issues. After all, whilst the solicitor owes duties to their clients, they also owe duties to remain independent and to protect the integrity of the profession. Moreover, the solicitor’s duty to the public interest in the administration of justice trumps the duty to the client where these two duties come into conflict.

We do not yet know anywhere near enough to form a judgment here on the rights and the wrongs of the matter. I have not been able to find the letter to the Select Committee which may shed some light on what their terms of reference were. However, the difference between the solicitor’s assessment and that of the News International Executive drafted in recently to look at matters afresh suggests it is something which would bears further investigation. Similarly, we do not know the basis on which Mr Crone made his statement to the Select Committee. It may be he as relying on solicitor’s letter. That too, though, would merit investigation.


Postscript: I have found the text of the letter from Harbottle and Lewis’ (then) Managing Partner

Letter from Lawrence Abramson, Harbottle & Lewis LLP to Jon Chapman, News International Limited (dated 29 May 2007)

 Re Clive Goodman

We have on your instructions reviewed the emails to which you have provided access from the accounts of:-

Andy Coulson

Stuart Kuttner

Ian Edmondson

Clive Goodman

Neil Wallis

Jules Stenson

I can confirm that we did not find anything in those emails which appeared to us to be reasonable evidence that Clive Goodman’s illegal actions were known about and supported by both or either of Andy Coulson, the Editor, and Neil Wallis, the Deputy Editor, and/or that Ian Edmondson, the News Editor, and others were carrying out similar illegal procedures.

Please let me know if we can be of any further assistance.

May 2007

11 thoughts on “Hackgate: where were the lawyers?

  1. It would be interesting to see how emails were collected (i.e. was it just from active systems or were personal locally stored archives and backups looked at) how they were searched (time period, file types, keywords, deduplicated) and whether any peripheral data custodians were looked at (Andy Coulson’s secretary for instance). Peston mentions that the internally conducted investigation looked at 2500 emails. I would expect 6 data custodians to produce somewhere between 90000 and 120000 mails over a three year period.

  2. I have been wondering where the lawyers were – or rather what they were doing – in relation to the MET’s own investigation into the hacking. In the Telegraphs’s interview with John Yates on Sunday, Yates said ‘I’ve never seen the 11,000 pages [of material, recovered from Mulcaire]; I knew there were bin bags full of material but legal counsel reviewed all of it.’ We now know that this material contained the names of 4000 potential hacking victims. It was in this 11,000 pages of material that, according to the Guardian, MET police officers in the new investigation found evidence that Milly Dowler’s phone had been targeted. The logical implication, if both reports are correct, is that lawyers knew years ago that the NOTW were involved in hacking a murder victim’s answerphone, and yet didn’t consider this important enough to include in the original investigation – nor the others phones that were hacked. The question that troubles me is whether the legal counsel who (according to Yates) reviewed all 11,000 pages kept these findings to themselves, or whether they were raised with the MET – or even higher up – and decisions were taken not to pursue this further. It seems highly unlikely to me that a lawyer would have simply sat on this information – whatever the terms of reference of the original investigation – and not informed senior officers at the MET.


  3. As a (presumably) carefully drafted solicitor’s letter it may be worth trying to break down what it says and does not say. Given the importance of the subject matter in the context as should have been apparent at the time to H&L I think it would not be unfair to consider the letter to have been written with detailed thought as to its strict interpretation.

    It says that H&L did not find what appeared to them to be reasonable evidence to support either of the two allegations. This does not mean that they did not find any evidence or that what they found might not be evidence which combined with other evidence (ie which went beyond what would be immediately apparent to H&L on the basis of the documents and instructions given) might be reasonable evidence supporting the allegations. The second half of the letter and its reference to “similar illegal procedures” exposes the need to see the instructions given – narrowly construed it would not necessarily extend to other illegal procedures which were not sufficiently similar to those of Goodman. It is quite possible that H&L may have prepared separate advice on anything they found which exposed broader illegality of this sort (and that that advice, provided that it did not constitute advising NI on how to continue to behave criminally would certainly be privileged). It is quite usual when advising corporate clients to provide a set of narrowly defined advices to specific questions and to make sure there are no cross-references between the advices.

    On the involvement of Coulson and Wallis in the Goodman practices the letter says that there was no reasonable evidence that they knew AND supported those practices. While of course, we are urged as practitioners not to write in too lawyerish a way, if H&L meant “there was no reasonable evidence either that they knew about those practices or that if they did know about them that they supported them” they could easily have written that – there is at least the possibility that H&L could have found evidence of knowledge which did not have enough linked to it to show that they approved.

    These nuances would be enough to provide room for William Lewis and the other NI executives to fill in the gaps from their own knowledge – eg professional understanding of the expectations of management that that which the Editor knows about and does not stop is something which they would consider to be effectively approved by the Editor.

  4. I found the reference to the practice of drawing tight terms of reference in order to obtain the required response which you impled was an Enron type tactic most interesting given that Linkedin states that Jon Chapman spent 5 years working for Enron as a legal counsel there.

    It seems that the scandal involving our trio of institutions: politicians, press and police should also encompass one of of our oldest professions, lawyers and a public enquiry into their ethics too.

  5. Harbottle & Lewis’ website says of Laurence Abramson: ‘Laurence read for his MA at Cambridge and qualified in 1952. He founded Harbottle & Lewis in 1955 with Brian Lewis. He was a Senior Partner of the firm and now maintains close links by acting as a Consultant, a position he has held since 1994.’

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