That's the headline for today's episode of the NYT "Daily" podcast.
We hear the Times reporter Rachel Abrams speaking with a lawyer, Ali Diercks, who chose to leak information about the document review she was doing for CBS after Les Moonves resigned from his position as the company's chairman and chief executive.
Here's the story Abrams co-authored back in 2018, based in part on the confidential information Diercks shared with her: "'If Bobbie Talks, I’m Finished’: How Les Moonves Tried to Silence an Accuser/A trove of text messages details a plan by Mr. Moonves and a faded Hollywood manager to bury a sexual assault allegation. Instead, the scheme helped sink the CBS chief, and may cost him $120 million."
Diercks's law firm, Covington & Burling, unsurprisingly, figured out that she was the source of the leak and she lost her job and her law license.
Diercks to Abrams: "Our career trajectories were thrown in diametrically opposed orbits by the same thing, the same catalyzing event. You know, a scoop like this is going to make your career and ruin mine at the same time."
Abrams, summing up: "She lost her career and struggled in isolation. I got a bigger profile and ended up with a book deal."
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Somebody must have great breasts for $120 million. I don't think even Jane Mansfield had them insured for that much.
Yes, it is a major rules violation for a lawyer to release confidential client information. It goes to the heart of the attorney-client relationship.
"Abrams, summing up: "She lost her career and struggled in isolation. I got a bigger profile and ended up with a book deal."
The definition of failing upward.
If you're wondering about the $120 million: "Whether Mr. Moonves was honest with CBS’s investigators could determine whether he collects a $120 million severance payment. If he was fired for cause, CBS doesn’t have to pay him anything."
That's from the 2018 article. Diercks was working on the investigation that ultimately deprived Moonves of his "golden parachute."
Clearly, she was in the wrong profession, if she can't maintain basic trust. That reputation will also hurt her in connection with lots of other jobs, too.
I don't understand why she had to leak the texts, though. If there was litigation, those texts were not privileged. They would have come out in discovery anyway.
She should have lost her career. That was the right outcome for her.
Why are there women lawyers? Every woman I know can't keep a secret.
The hubris of going to war with the controlling shareholder while sitting on a powder keg. And of having a corporate m+a lawyer instead of a litigator conduct the company's internal investigation.
She could start over as a clerk for the Supreme Court, where leaking goes unpunished.
She *chose* to throw her career away. She had to know the consequences that awaited her. It's just a question of whether she's at peace with herself for violating such a central lawyer-client duty and disadvantaging herself for the rest of her life. She struggles to believe it was all worth it for the greater good, and the gist of the podcast is that the #MeToo movement must go on and mean much more than it has so that the greater good for which Diercks threw her career away succeeds in pervasively changing the workplace.
The attorney-client privilege is sacrosanct. If every lawyer or paralegal or law firm staff member can violate that privilege for the sake of a "good cause," there's no point to having a legal system at all.
Not sure she violated attorney-client privilege if she leaked phone texts between two non lawyers adverse to her client (a special committee of the board of directors?) engaging in a cover-up of wrong-doing. But she did violate duty to the client to keep confidences. In this case its apparent willingness to go lightly on its lying, defaming, sex-abuser CEO.
She struggles to believe it was all worth it for the greater good, and the gist of the podcast is that the #MeToo movement must go on and mean much more than it has so that the greater good for which Diercks threw her career away succeeds in pervasively changing the workplace.
For the #MeToo movement to regain relevancy it is going to have to figure out what to about obvious liars like Christine Blasey Ford and E. Jean Carroll. It was easy to believe that Al Franken was a pig and Harvey Weinstein abused his casting couch. Blasey Ford’s fanciful story as she attempted to derail Kavanaugh’s nomination fooled no one who wasn’t desperate to be fooled, and E. Jean Carroll’s tale was just as unbelievable. If #MeToo is going to let itself be abused for political reasons then then it shouldn’t be surprised to be tuned out for the same reasons that “the boy who cried ‘wolf’” had no one come to his aid when he needed it.
"Why are there women lawyers?"
What, you mean you don't know? How could you not? Didn't you know you're supposed to read women lawyers minds? Nevermind...it's nothing. The women lawyers aren't even angry...
gist of the podcast is that the #MeToo movement must go on and mean much more than it has so that the greater good for which Diercks threw her career away succeeds in pervasively changing the workplace.
Which is why you don't hire women.
Well, no sympathy toots. You betrayed your client. I agree that in todays USA, that's either a hanging offense, or will get you prizes and applause, depending on the situation.
SHe should have known that when it hurt a liberal/left MSM CEO, she'd get punished. Now, if it had been Fox News, or a Republican, she'd still be employed and still had her law liscense.
“ Which is why you don't hire women”. Ayup. Nothing but good ole boys for me.
All the smart women lawyers can now learn from this one’s mistakes. Law school tuition is a sunk cost anyway. And if she has student debt, Joe has promised to help.
But I strongly suspect that she is on a short list of disbarred attorneys who’s cases will be reviewed by friendly states and will be reinstated quietly, in a few years.
Isn’t organizational corruption fun!
She should have not only have been fired, but Moonves should sue her and her former firm for every penny they have.
CBS was using the law firm to examine the Moonves case and it had a big monetary motivation — getting out of paying the $120 million. If the investigation was turning up strong evidence against Moonves, why go to the NYT? Why not complete the investigation and give CBS the truthful information and allow events to play out in the ordinary fashion, with CBS depriving Moonves of the $120 million and Moonves maybe suing and then CBS defending in that lawsuit? Or let Bobbie Phillips go forward with her story if she chooses? Why take it upon yourself to short circuit the process? It's something you *can* do, but it's violating the existing structures of professional ethics. It's like civil disobedience: When is there a higher calling? I don't see it here.
Ann Althouse said...
"...She struggles to believe it was all worth it for the greater good, and the gist of the podcast is that the #MeToo movement must go on and mean much more than it has so that the greater good for which Diercks threw her career away succeeds in pervasively changing the workplace."
The impetus for the MeToo movement was the need to discredit Trump. That it backfired on Moonves, Franken, and Lauer (well-deserved as it was) was the cost of doing business. By rights, Joe Biden should have been in the rogue's gallery, but he was too useful for the cause.
Why did she leak, when the info would regardless come out and win the case for CBS? Mysterious...
BS. Ego, and a chance at public glory.
Mr Show - God's Book On Tape
"A rule is a rule is a rule, unless you're a woman." Attorney-client privilege is an inviolable standard necessary for the functioning of the profession, but sometimes you gotta follow a higher truth, or something. You go, girl.
Anyway it's fine; with civil disobedience you're supposed to suffer the consequences in exchange for breaking the rule/law. Any collateral damage to the institution (people being less trusting of their own lawyers, etc) isn't something most people will ever consider.
"If the investigation was turning up strong evidence against Moonves, why go to the NYT? Why not complete the investigation and give CBS the truthful information and allow events to play out in the ordinary fashion, with CBS depriving Moonves of the $120 million and Moonves maybe suing and then CBS defending in that lawsuit? Or let Bobbie Phillips go forward with her story if she chooses? Why take it upon yourself to short circuit the process? It's something you *can* do, but it's violating the existing structures of professional ethics. It's like civil disobedience: When is there a higher calling? I don't see it here."
My thoughts exactly. Lack of foresight? Or, she thought she'd be received as a hero? Miscalcualtion for sure.
I'm surprised that there are so few leaks from law firms. People working as typists, file clerks, and copy machine operators are routinely exposed to information of life changing magnitude.
'"A rule is a rule is a rule, unless you're a woman." Attorney-client privilege is an inviolable standard necessary for the functioning of the profession, but sometimes you gotta follow a higher truth, or something.'
Or unless you're a lawyer representing a republican president.
Then there is no privilege.
By whatever means necessary.
I hope Rs in congress are keeping notes, but I know they're not...
Dave Begley wrote: "It goes to the heart of the attorney-client relationship."
Now do Trump's lawyers.
Changing the subject, former Buffalo Bills punter was completely exonerated in yet another sexual assault hoax.
I only skimmed this, but I was overjoyed to see that the leaker had lost not only her job, but her law license. Well deserved punishment for ethical misbehavior. Same should happen to those guilty of the Russia/Trump debacle.
"She could start over as a clerk for the Supreme Court, where leaking goes unpunished."
The funny thing about that is how it didn't even work.
"It's just a question of whether she's at peace with herself for violating such a central lawyer-client duty and disadvantaging herself for the rest of her life. She struggles to believe it was all worth it for the greater good,"
My client -- Al Capone -- really was behind all of those murders he's been accused of. I know as his attorney, I'm supposed to keep it to myself, but The Greater Good called, so...
Why take it upon yourself to short circuit the process? It's something you *can* do, but it's violating the existing structures of professional ethics. It's like civil disobedience: When is there a higher calling? I don't see it here.
It's gotten a lot more popular lately and much worse has followed. Especially by people like Weissmann.
Her license was suspended for 18 months with reinstatement conditioned upon proof of
fitness to serve as an officer of the court and that she is no longer a lying sack.
"a faded Hollywood manager"?
" the gist of the podcast is that the #MeToo movement must go on and mean much more than it has so that the greater good for which Diercks threw her career away succeeds in pervasively changing the workplace."
Fuck a career. Is she too old to start a family?
Wow, I remember that episode (the leaked investigative materials). At the time, as I recall, it was suspected that Devevoise was the source of the leak, and Mary Jo White had to apologize in person to the CBS board. The results of subsequent investigation were not so widely publicized, so I never learned (if indeed it was ever made public) that Covington, not Debevoise, was the source of the leak. They must have been really annoyed, to not only fire the associate but file a disciplinary complaint. Diercks' disbarment order is available online, but it used so many pseudonyms (e.g., "Law Firm" and "Company") that you wouldn't realize what event it related to unless you already knew.
So does Rachel feel guilt for this? She caused someone to lose her job. I wonder how much she inveigled to get the information from Diercks.
When metoo# starts to give a shit about stranger rapes, child molestation, sexual assaults by men against other men and especially younger men, I'll believe it is a real anti-rape movement. When they start supporting the police and incarceration and advocating for enhanced recidivist penalties, consecutive sentences, multiple prosecutions when a serial offender is identified, and counting stranger and serial rape as hate crimes when the victims are "just heterosexual" women, or men, or children, I'll believe they care about rape victims. For now, they might as well call themselves onlypeoplelikeme#.
The #metoo movement may portray itself as noble, however, that "movement" ignored Tara Reade who accused Joe Biden of sexual penetration. So it has no standards. It's just an arbitrary attack zombie.
She was suspended, not disbarred, but at some point was warned her former employer vowed to oppose reinstatement. No doubt it was bad for client relationship and firm's standing. It did seem from the reporting that CBS board members were reluctant to strip all compensation until it sank in they had been lied to.
Les Moonves threw away his career and reputation too, but he could afford it much better than Ali Diercks.
“In a twist though, Covington reportedly had to pay undisclosed settlements because of the leaks, both to Bobbie Philips and to Les Moonves himself. Moonves made a statement at the time that he would donate the money to charity.”
It’s unclear why the law firm would have a duty to Les Moonves, who was not its client, but perhaps he and Bobbie Philips had been promised confidentiality by CBS.
“The information Ali shared from the report included details about secret, multi-million dollar settlements that had been paid over the years to women who said they suffered sexual harassment, assault, or wrongful termination by other men, men who didn’t lose their jobs and instead, went right on working for the network.“
The reporter is thinking about that in terms of public interest, but there’s also the private interest of CBS shareholders and people buying shares in the market. Arguably, CBS was committing an ongoing fraud by sweeping these settlements under the rug rather than disclosing them, and Covington was helping. There is also a question of ongoing harm to other women employed by CBS. That does create a legal ethics dilemma for a lawyer working at Covington, even a lowly documents review attorney on a 35 person team like Ali. If you look at the DC bar report that recommended her suspension, you can see they tried to sweep as much as they could under the rug in that proceeding too.
Is it never OK for a lawyer to be a whistleblower? Here the direct harm of the whistle-blowing seems to have fallen more on the law firm than on the client. And Ali seems most afraid that the law firm will block her reinstatement. Have we come to the point where bar discipline is the long arm of the Biglaw HR department?
"She was suspended, not disbarred, but at some point was warned her former employer vowed to oppose reinstatement. No doubt it was bad for client relationship and firm's standing. It did seem from the reporting that CBS board members were reluctant to strip all compensation until it sank in they had been lied to."
Ha Ha Ha!!! A faithless officer sworn to protect the client's interest!!! NEVER HIRE A WOMAN LAWYER-- SHE WILL RAT YOU OUT!!!!! Women don't believe in oaths.
An I wrong? Women can't be held to a reasonable standard.
"She was suspended, not disbarred, but at some point was warned her former employer vowed to oppose reinstatement. No doubt it was bad for client relationship and firm's standing. It did seem from the reporting that CBS board members were reluctant to strip all compensation until it sank in they had been lied to."
Ha Ha Ha!!! A faithless officer sworn to protect the client's interest!!! NEVER HIRE A WOMAN LAWYER-- SHE WILL RAT YOU OUT!!!!!
Ali Diercks should NEVER be reinstated, and it's shameful that she wasn't straightforwardly disbarred by a 1- or 2-sentence order by every State's highest court in which she was licensed. Breaking confidentiality is bad enough but doing it knowingly and intentionally in violation of her obligations as an attorney, and in a manner designed to have a client's confidential information publicized in the national press, should be unforgivable.
I say that as a (retired) attorney who questions the presumption that the attorney-client privilege is a societal benefit, and who thinks that the A/C privilege is only clearly justifiable with respect to communications and advice to those who are arrested or charged with a crime.
The leak answered, however, why Bobbie Phillips basically disappeared. I had never heard of her or seen her work until the War of the Coprophages episode of The X-Files. I thought she was great in that episode, with its mix of cockroach-based horror and the offbeat humor. I expected to see her in more after but didn't.
"CBS was using the law firm to examine the Moonves case and it had a big monetary motivation — getting out of paying the $120 million. If the investigation was turning up strong evidence against Moonves, why go to the NYT? Why not complete the investigation and give CBS the truthful information and allow events to play out in the ordinary fashion, with CBS depriving Moonves of the $120 million and Moonves maybe suing and then CBS defending in that lawsuit? Or let Bobbie Phillips go forward with her story if she chooses? Why take it upon yourself to short circuit the process? It's something you *can* do, but it's violating the existing structures of professional ethics. It's like civil disobedience: When is there a higher calling? I don't see it here."
That had me scratching my head, too. Glad I wasn't the only one. I don't see how representing CBS, which had no reason to pay and every reason to hose their former employee, would be morally questionable. It seems like the opposite!
Why was she so sure CBS would settle even after all this damning information had been found? They had in the past, but this was a lot more money and things had changed.
Why not wait to leak the information until after CBS acted? Perhaps they would have done the "right" thing and she'd still have her career. If the goal was punishing CBS in the event of a settlement, the better choice was to wait. As it was, she saved CBS a lot of money.
Did she have a personal vendetta against Moonves? That seems like the only reason to do this. Why?
I don't see how this accomplished much of anything, other than costing the career of one lawyer and Moonves a lot of money. That's not principled, it's personal.
And yes, like a lot of commenters said, it's going to mean that women lawyers representing clients in these kinds of cases are going to face a lot more scrutiny. How is that progress?
“I don't understand why she had to leak the texts, though. If there was litigation, those texts were not privileged. They would have come out in discovery anyway.“
“Why take it upon yourself to short circuit the process? It's something you *can* do, but it's violating the existing structures of professional ethics. It's like civil disobedience: When is there a higher calling? I don't see it here.“
There is a lack of something (what IS the word?)that people used to have and we’re taught by both their parents &in education that has been neglected to the point of extinction in society today. Fairness? Moral duty? W/in the law?
Something is sorrowfully missing…
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