Hacking Updates: the Prime Minister, Lawyers, Corporate Goverance and Burton Copeland

With the Independent publishing a story suggesting the Prime Ministor is receiving (or has received) legal tutoring from a top team of lawyers, I have written a piece for the Guardian on the perils of witness coaching.  We don’t know what form the tutoring of the PM has taken, but there are questions to be asked.

It is also worth noting that amidst the ‘is Murdoch fit to run an international conglomerate’ furore the Culture Media and Sport’s Report on News International and Phone Hacking has criticised Tom Crone, inhouse lawyer for the News Group Newspapers, for misleading the committee (allegations he continues to deny) and Jon Chapman, an inhouse lawyer at NI, on the basis that the evidence, “strongly suggests that he was deliberately turning a blind eye to e-mails that he did not want to investigate further”.  Lawrence Abramson is not criticised.  I think I am right in saying there is not explicit criticism of Julian Pike either.  So it’s 2-nil to the private practitioners over the inhousers with the second leg to be played out before the professional regulators (or possibly Leveson LJ).  To those not bored to death already, my original thoughts on these matters are here.

Whatever the rights and wrongs of the individual matters, the cases raise very interesting an important questions about the roles of in-house and outside lawyers in relation to corporate governance.  This point made by the Committee (an amendment that split it 6:4) may be particularly apt:

Far from having an epiphany at the end of 2010, the truth, we believe, is that by spring 2011, because of the civil actions, the company finally realised that its containment approach had
failed, and that a ‘one rogue reporter’ – or even ‘two rogue journalists’—stance no longer had any shred of credibility. Since then, News Corporation’s strategy has been to lay the blame on certain individuals, particularly Colin Myler, Tom Crone and Jonathan Chapman, and lawyers, whilst striving to protect more senior figures, notably James Murdoch. Colin Myler, Tom Crone and Jonathan Chapman should certainly have acted on information they had about phone-hacking and other wrongdoing, but they cannot be allowed to carry the whole of the blame, as News Corporation has clearly intended. Even if there were a ‘don’t ask, don’t tell’ culture at News International, the whole affair demonstrates huge failings of corporate governance at the company and its parent, News Corporation.

The issues go the heart of lawyers duties: integrity; the duty to the client versus the duty to act in the public interest in the administration of justice; the tension between legitimate advocacy/negotiation and misleading opponents or tribunals, the limits of legitimate “presentation” of evidence and, for corporate lawyers, the under-explored issue of just who is the client in such circumstances.  Similarly, is this an abberational case or, assuming wrong doing is proven, symptomatic of more common incentives and relationships?

Interestingly, given a point I made in a story the Guardian ran following up on this blog post, they also stated:

Rupert Murdoch’s final admission at the Leveson inquiry that a cover up has taken place at the company may mean that the investigations conducted by Burton Copeland have been used by people at News International to perpetrate a falsehood. As such we believe there is a strong argument that the company has no right to restrain disclosure of the file. We call on the company to waive legal privilege, so that the Burton Copeland advice and investigations can be published and submitted to the Leveson inquiry.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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One Response to Hacking Updates: the Prime Minister, Lawyers, Corporate Goverance and Burton Copeland

  1. Joan Loughrey says:

    Richard

    I think from the lawyers’ perspective the client is whoever can hold them to account and that generally is not the public, shareholders, third parties or even the SRA who is not really on top of what corporate lawyers do and doesn’t see them as an issue (because they focus on client complaints as a measure of whether there is an issue). The question of who as a matter of law lawyers should take their instructions from and what they should do if they think-or should think-that there is going to be an issue raises complex questions of agency and company law, as well as ethics, and it is really something that lawyers need guidance on. The SRA should be doing something about this but they are not. There is a case- Lexi Holdings v Pannone- which began to address these issues in the context of dodgy instructions from a CEO but I have no idea if it is actually going to go to full trial, I doubt it.

    Joan

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