Litigation

Gryphon: BP criminal probe likely to complicate disaster response

By James R. Copland

In today's Washington Examiner, my colleague Marie Gryphon argues that "looking for whose ass to kick" in the BP oil-spill saga -- at least when that involves the Justice Department's announced criminal probe -- might make the disaster response itself less effective:

BP had a conflict of interest with its own people as soon as criminal charges came into play. Corporations can't be jailed, so BP's likely plea bargain would consist of a combination of fines and federal supervision. The size of such fines can range from nominal to ruinous depending on whether BP "fully cooperates" with prosecutors.

In recent years, the DOJ has regularly pressured corporate defendants to cooperate by "voluntarily" waiving their attorney-client privilege. Once the privilege is waived, anything any employee ever told the corporate counsel becomes part of the public record of the case.

"Make no mistake," states the Web site of prominent defense firm Bullivant Houser Bailey PC, "the Justice Department's position is that if the corporation wants to avoid criminal prosecution it better be willing to throw its agents and employees under the bus."

You thought that company lawyer represented you? Too bad.

Unlike lawyers representing BP itself (which has every incentive in the world to contain the spill as quickly as possible), a lawyer representing an individual employee has one simple goal: to keep the client out of jail. He or she is ethically obligated to advise the client to stop talking about the well, the rig and what might have gone wrong if clamming up will serve that goal. The result could be a breakdown of communication that the country can ill afford.

Full post as published by Point of Law on June 09, 2010 (boomark / email).