One of the most difficult lessons to learn in becoming a wise counselor is to say “no” to a good client.

In this NY Times op-ed, Times business writer Floyd Norris observes that the demise of Arthur Andersen is attributable to its inability to say “no” to several lucrative clients who were engaging in questionable deals.

He might be right. Certainly the double whammy of damages that a still-in-business Andersen would have probably had to pay in regard to such scandals as WorldCom and Enron would have been huge financial burdens. There is no certainty that the firm could have survived those hits.

But the fact remains that the federal government’s decision to terminate Andersen through criminal prosecution was not only arbitrary and capricious, but bad public policy.

Very few of the 30,000 employees of Andersen were engaged in any wrongdoing, and Andersen was only one of several firms who provided professional advice and services on dubious transactions for WorldCom and Enron.

Nevertheless, Andersen was singled out for criminal prosecution, and the result was economic hardship for thousands of its former employees and less competition for providing audit services for big companies.

As we are now seeing in regard to American International Group Inc. and its auditor, PriceWaterhouseCoopers, the government’s prosecution of Andersen did not deter professionals from helping their clients engage in risky transactions.

That is why such deterrence should be left to the markets, which are much better than the government at efficiently sorting out the type of risk that is good from that which is not.

Yesterday morning, the headline to this Kurt Eichenwald/NY Times article was the following:

“Reversal of Andersen Conviction Not a Declaration of Innocence.”

That headline prompted this yesterday morning post.

Today, the same Times article has the following headline:

“Analysis: Reversal of Andersen Conviction”

H’mm. Coincidence? ;^)

This NY Times article reports that former Credit Suisse banker Frank Quattrone, who was convicted of obstruction of justice last year for sending out an email regarding the bank’s document retention policy, is raising new issues on his appeal based on the U.S. Supreme Court’s decision earlier this week in the Arthur Andersen case.

Apparently, the jury instructions used in the Quattrone trial were similar to those used in the Andersen trial. Inasmuch as Quattrone was not charged with any other crime, those jury instructions appear to have become the key issue in his appeal.

American International Group Inc. released its long-delayed annual report yesterday and, as expected, reported a 2.7% hit to the company’s net worth along with cautionary notes about the longer-term cost that AIG is confronting as it deals with multiple governmental investigations. Here are the previous posts on the travails of AIG.
In a particularly important disclosure, AIG noted that credit downgrades over the past several weeks have forced it to post an additional $1.16 billion in collateral for certain financial contracts. Although that amount is manageable for the time being, AIG noted that “additional downgrades could result in requirements for substantial additional collateral, which could have a material effect” on how AIG manages its short-term liquidity needs.
As noted in this earlier post, a failure of trust is what caused Enron’s failure, and credit downgrades and customer trepidation over AIG’s financial difficulties can cause the same downward spiral for that company. In its latest annual report, accounting adjustments reduced AIG’s previously reported net income for 2004 by 12% ($1.32 billion) to $9.73 billion, and reduced AIG’s book value by $2.26 billion to $80.61 billion. Overall, the restatement reduced AIG’s net income from 2000 through 2004 by 10% ($3.9 billion).

This headline — “Reversal of Andersen Conviction Not a Declaration of Innocence” — to this NY Times/Kurt Eichenwald story about the Supreme Court’s decision in Andersen is revealing of the mainstream media’s mindset in regard to the government’s dubious policy of criminalizing merely questionable business practices.
In reality, the Andersen decision is not a “declaration of innocence” for an entirely different reason than the ones set forth in the article. Indeed, Andersen does not need such a declaration because of a fundamental principle of American jurisprudence that the mainstream media and the government prosecutors routinely overlook while pursuing “justice” in regard to unpopular businesspersons.
Andersen is innocent until proven guilty.

In a unanimous decision, the Supreme Court overturned the conviction of the defunct Arthur Andersen accounting firm for destroying documents relating to its client, Enron Corp., before Enron collapsed into chapter 11 bankruptcy in late 2001.

Chief Justice Rehnquist, writing for the Court, said that the conviction was the product of defective jury instructions at trial that were too vague and broad for jurors to determine correctly whether Andersen obstructed justice.

Justice Rehnquist noted that jurors were instructed to convict Andersen if the accounting firm had an “improper purpose,” such as an intent to impede or subvert fact-finding in an “official proceeding.”

Thus, Justice Rehnquist reasoned, jurors were instructed to convict even if Andersen mistakenly thought it was acting legally. At trial, Andersen argued that employees who shredded tons of documents followed the policy and there was no intent to thwart the SEC investigation. On a threshold basis, Justice Rehnquist analyzed the case in the following manner:

In this case, our attention is focused on what it means to “knowingly . . . corruptly persuad[e]” another person ” with intent to . . . cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.”

We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, . . . and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. [citations ommitted].

Such restraint is particularly appropriate here, where the act underlying the conviction — “persua[sion]” — is by itself innocuous. Indeed, “persuad[ing]” a person “with intent to . . . cause” that person to “withhold” testimony or documents from a Government proceeding or Government official is not inherently malign. Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, . . . or a wife who persuades her husband not to disclose marital confidences. [citations ommitted].

Nor is it necessarily corrupt for an attorney to “persuad[e]” a client “with intent to . . . cause” that client to “withhold” documents from the Government.

In a later part of the opinion, Justice Rehnquist chides the Government regarding its argument about Congress’ alleged meaning of the key phrase in the criminal statute under scrutiny:

The Government suggests that it is “questionable” whether Congress would employ such an inelegant formulation as “knowingly . . . corruptly persuades.” . . Long experience has not taught us to share the Government’s doubts on this score, and we must simply interpret the statute as written.

And in discussing the defective instructions given to the jury at trial, Justice Rehnquist notes that following:

[T]he jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, “even if [Andersen] honestly and sincerely believed that its conduct was lawful, you may find [Andersen] guilty.” . .The instructions also diluted the meaning of “corruptly” so that it covered innocent conduct. . .

The ruling is a stunning setback for the Department of Justice generally and the Enron Task Force specifically, which pursued a dubious prosecution of Andersen that effectively terminated a going concern that employed 30,000 persons in the U.S. (in comparison, Enron’s implosion cost approximately 5,000 employees their jobs).

That economic carnage was a stark reminder of the increasingly common governmental regulatory practice of criminalizing merely questionable business transactions, a practice that has been played out over and over again in other aspects of the Enron case and, more recently, in regard to the governmental investigations into American International Group Inc.

University of Illinois Law School Professor Larry Ribstein, a longtime critic of governmental regulation through criminalization of merely questionable business transactions, places the Supreme Court’s decision in the perspective of the damage done by the government’s prosecution:

[I]n addition to destroying value and lives, it significantly reduced competition in the auditing industry and thereby impeded efforts to engage in the cleanup the pro-regulatory folks have thought is oh so necessary. Now it turns out the whole thing was a legal as well as policy mistake. More generally, this is yet another nail in the coffin of the misbegotten idea that corporate criminal liability is the way to better markets.

Professor Henning also has insightful thoughts about the Anderson decision here and here.

So, the Supreme Court reminds us that the rule of law does not allow the government to abuse the law to engage in popular prosecutions of unpopular businesspeople. The Anderson decision cannot bring that firm back to life or give back those lost jobs and wealth. That is a terrible injustice. But it does provide a measure of protection to us from the government abusing the law and using its overwhelming power to pursue wrongful prosecutions against the unpopular persons of the moment. And for that, I am thankful.