The Financial Times is reporting that two Allen and Overy lawyers (one for US attorney and another a (now retired) senior civil litigator) have avoided being referred to the Attorney General’s office for an investigation into whether they had committed a contempt of court.
The concerns arose out of A&O’s representation of Mr Dahdaleh, who was an accused in a major bribery trial. Four days before the criminal trial, it is reported that three lawyers from A&O and Mr Dahdaleh met with a prosecution witness. That meeting took place in spite of Mr Dahdaleh’s bail conditions prohibiting him from making contact with any prosecution witness.
Reuters reported in November that the witness said this:
“It was very clear to me that they came to the meeting wanting to pressurise me and influence what kind of testimony I will give here,” he told the court.
“He (one of the lawyers) was telling me what I needed to say and I found that very intimidating,” he said.
The story goes on to report:
Al-Kooheji said the Allen & Overy lawyers had insisted that he should tell the court that he knew the payments that Dahdaleh had made to Alba managers had been authorised by senior government figures.
The witness said he told them that was not correct and he would say no such thing under oath.
Al-Kooheji told the court that two days before the London meeting, he and Dahdaleh’s Bahraini lawyer, Qays Zu’bi, had taken part in another meeting with two deputy prime ministers in Manama.
“He (Zu’bi) was suggesting that the Bahraini government could interfere politically to stop the SFO investigation,” Al-Kooheji said, adding that this suggestion had been rejected.
The trial was aborted, Allen Overy ceased to act, realising – I assume -that they could be called to give evidence on that meeting. It appears also that Mr Dadahleh was remanded in custody (although it is not clear to me whether the two things are definitely linked, there is a likelihood that a breach of his bail conditions played a role). The allegations against the A&O lawyers were repeated in the opening of the subsequent rescheduled trial.
That trial collapsed with the Serious Fraud Office being criticised for delegating part of its investigation to the US law firm which was also representing the party to civil litigation arising from the same or related facts. It was also alleged that one of the A&O partners misled Akin Gump as to the purpose of the meeting. Akin Gump subsequently declined to give evidence saying it risked prejudicing their own client’s rights. For that reason, and because another witness changed their evidence (were not told who*), the judge directed that the jury acquit. At about the same time, bribery proceedings related to some of the same companies to which bribery allegations related were settled for $384 million in the US.
Today’s report suggests some, albeit partial, acceptance of fault on the part of the Allen & Overy lawyers. The QC representing the two partners told Crown Court that the meeting in question was “extraordinarily ill-advised”. Caroline Binham of the FT also reports him as telling the court that the two partners, “were not experienced UK criminal lawyers and relied on others, including UK barristers for advice on how to handle the UK process.” A&O are also reported as having referred the matter to the Solicitors’ Regulation Authority themselves (as they are probably obliged to do). The judge is also deciding whether to report the matter to the SRA himself. An admission that they took on a matter of great importance when they plainly lacked experience/competence in the area, that gave rise to a breach of bail conditions which they – ahem – supervised, opened the door to an allegation of attempt to pressure or coach prosecution witnesses, and put them in a position where they are professionally embarrassed as a result of being (potentially) a material witness in the client’s case or suggest that this is a decision which should not be too difficult. Add to that the impact of their conduct on a difficult and expensive trial and the public interest in an investigation is accentuated. [Subsequent to this blog being published more details have emerged courtesy of the Lawyer including something of the A&O lawyers’ defence].
At a time when the courts are increasingly keen to emphasise the obligations of the public and jurors when involved in the administration of justice or even tweeting about justice, it is to be hoped that the court takes a firm line requiring thorough investigation when members of the legal profession, particularly senior ones, take questionable decisions of the kind we have seen here. Whether punishment is justified, for the lawyers and/or their firm, we will have to wait and see but at the very least lessons need to be learned and learnt with some emphasis.
The story gets more extraordinarily still though. The QC representing the A&O lawyers is also reported by the FT as saying that,
“the barrister originally instructed in the case, Clare Montgomery QC… was aware that a meeting was taking place before the trial was originally scheduled to start. He did not clarify, when pressed by the judge, whether she knew would be present or whether the criminal trial would be discussed.”
Those are facts are important to his client and also important to the role of Ms Montgomery. If he did not know: why not? If he did know: why would he not say?
Equally, putting the criminal trial to one side: let us assume that the criminal trial was not discussed at the fateful pre-trial meeting. It may appear naïve to say this, but am I the only one discomforted by the fact that civil settlement negotiations of this sort were taking place with relevant witnesses at such proximity to a pending criminal trial, and one of such size and import?
* Reuter’s have however reported this which is likely to have been crucial to Dahdaleh’s acquittal:
Lawyers said Jawad bin Salem al-Urayed wrote about the case of Victor Dahdaleh, a businessman accused of paying some $67 million in bribes to former managers of Aluminium Bahrain (Alba) in return for a cut of contracts worth over $3 billion.
…unable to contact Urayed, one of five Bahraini deputy prime ministers, for comment on the letter, which was read out in court by Dahdaleh’s lawyer Nicholas Purnell. The prosecution did not dispute the authenticity of the letter, addressed to the SFO director and the Attorney General.
“At the request of Allen & Overy (the London law firm then acting for Dahdaleh), we hereby confirm that the board of directors of Aluminium Bahrain knew of and approved all contracts entered into by Alba, including knowing of and approving payments made by Victor Dahdaleh,” the letter said. “This was entirely in accordance with Alba practice,” it added.