Thursday, April 17, 2014

They are not enablers

There's a sense of underwhelming justice in Ireland today as two senior executives of the failed Anglo Irish Bank (Patrick Whelan and "Fair Play" Willie McAteer) -- but not its chairman, Sean Fitzpatrick -- were found guilty of making illegal loans to a consortium to buy shares in the bank. A critical point in the trial is well described by RTE as follows --

Evidence of the legal advice was a major feature of the trial until early March when the prosecution won a major victory in having it excluded. In 2008 Anglo had recruited solicitors Matheson Ormsby Prentice to guide them on the legality of the Maple deal. From the trial's beginning it was a defence strategy to use evidence of this advice to show that the accused fulfilled their duties as directors in ensuring the deal was in line with the Companies Act. Several witnesses testified that the law firm had told Anglo the deal was on the level. When taken alongside the Financial Regulator's approval, the legal advice formed a convincing case that the men fulfilled their duties as directors. However the prosecution successfully contended that legal advice does not make an illegal act legal. Its argument was that if a solicitor tells you you are allowed shoot a man, that does not make it any less a crime. The defence teams responded that this logic placed an impossible burden on the men in their roles as directors. The 1963 Companies Act is 3-000 pages long and section 60 alone contains 40 sub-clauses.

Although we don't know the judge's exact rationale in excluding the legal advice, the principle is surely right and not just in the extreme example given by the prosecution. A common feature in the financial crisis in many countries was the transformation of corporate legal departments from answering the question "is this legal?" to "find a way to make this legal." The complexity of the laws -- which of course, they help write -- facilitated the latter role.

If you're up to dodgy stuff and you consult a lawyer, he becomes your consigliere, a la Tom Hagen from the Godfather. But you can't then run into court and say, I had legal advice that it was OK.