While attorneys for Tyco International Ltd. defendants L. Dennis Kozlowski, the former chairman, and Mark H. Swartz, former chief financial officer, sparred in court with prosecutors today over the timing of their court date, the attorney for Tyco's general counsel said he was baffled that prosecutors were proceeding against his client at all.
Reid H. Weingarten, lawyer for former Tyco general counsel Mark A. Belnick, said at the hearing that the charge against Belnick "doesn't pass the laugh test." New York state Supreme Court Judge Michael J. Obus scheduled a May 16 hearing on Weingarten's motion to throw the case out.
Prosecutors say Belnick committed larceny when he accepted a $12 million bonus for his work heading off a Securities and Exchange Commission investigation knowing the stock and cash payments had not been authorized by the company's board. The former white-shoe lawyer is also charged with violating New York securities law and with seven counts of falsifying business documents.
His case is being closely watched by the legal community, because in the past government officials have largely avoided going after lawyers in their role as advisers on the theory that such cases could scare corporations and officers away from seeking legal advice.
Now the rules may be changing because of new interest from Congress, the Justice Department and the SEC in holding people responsible for financial irregularities engulfing companies like Enron Corp., WorldCom Inc. and Adelphia Communications Corp.
Not only are the regulators and prosecutors looking seriously at lawyers, but a key December ruling in a class-action lawsuit being brought by Enron shareholders may make it easier for the plaintiff's bar to hold lawyers responsible.
So far the most prominent cases involve Belnick, 54, of Park City, Utah, and former Rite Aid Corp. general counsel Franklin C. Brown, but defense lawyers and federal officials say there may soon be others.
"I think it could be the tip of the iceberg. Right now there's a hue and cry for all professionals, accountants, lawyers to be subject to penalties. It's like what happened in the [1980s] savings and loan crisis," said Gordon A. Greenberg, a Los Angeles white-collar defense attorney. "There's increased emphasis and even a priority in most U.S. attorney's offices to focus on lawyers."
Indeed, Manhattan District Attorney Robert M. Morgenthau, whose office is bringing the Tyco case, said, "There's been a tendency in the past not to prosecute lawyers on the grounds that the appropriate way to handle this is the bar. I've never subscribed to that. . . . If a lawyer knows that there's been financial improprieties, he certainly has a duty to disclose that both to the SEC and his own board of directors."
Outside law firms may also be facing more pressure. The SEC recently revived an old enforcement theory of going after "gatekeeper" institutions such as auditing firms, investment banks and law firms as a way of deterring corruption at corporations. So far, they have brought cases only against accounting firms, but bankers and lawyers may be next on the agenda, observers said.
"While it's always easier to make a case against the bad guys inside a company that cooks its books, we clearly have the authority and the will to pursue the accountants, the lawyers or anyone else who helps them," said Linda C. Thomsen, the SEC's deputy director of enforcement. She would not discuss ongoing investigations or specific cases.
The law firms may also face trouble from the plaintiff's bar. In December, a Houston federal judge found that the Enron shareholders could try to go after the law firm of Vincent & Elkins for their role in the debacle -- even though a 1994 U.S. Supreme Court case says legal advisers cannot be sued privately simply for "aiding and abetting" a corporation that commits securities fraud.
That decision "is a signal that courts are receptive to including the lawyers," said Georgetown University law professor Donald C. Langevoort. "I would assume we're going to see more."
Still, bringing cases against attorneys remains complex. First, many of their conversations and e-mails are covered by attorney-client privilege, and tampering with that realm is extremely controversial. Last month, the SEC withdrew a plan to require lawyers to inform the commission when they believe a client's corporate filings are fraudulent, under strong pressure from lawyers who said it would prevent corporate clients from seeking legal advice.
Even when a cooperating corporation waives its privilege, there is a secondary "work product privilege" that lawyers themselves can assert to cover work they have done during an ongoing case or dispute.
Prosecutors and regulators also have to prove a lawyer had knowledge that something false or deceptive was going on and that he or she was actually involved in the lawbreaking. Simply giving advice such as "you're close to the line" would not be enough, legal analysts said.
"You will never see a steady diet of lawyer cases, the way you see SEC accountant cases," said New York defense attorney Steve Cohen. "Typically a lawyer is not playing a business function, and typically he is not taken into the business people's confidence. . . . At these companies, the lawyers are treated as kind of cops."
Attorneys are more likely to face government action when they have gotten involved in business decisions rather than simply giving legal advice, lawyers said.
In the Tyco case, prosecutors allege Belnick personally committed fraud and worked hand in glove with Kozlowski and Swartz.
Today's hearing also offered a small preview of a key issue in the Tyco case. Lawyers for Kozlowski and Swartz argued that they need more time to get evidence on what Tyco's outside auditor, PricewaterhouseCoopers, knew about the millions of dollars in bonuses and loans. But prosecutors said they would agree that the auditors were aware of the transactions, without the defense having to prove it. The judge set a Sept. 29 court date.
"It's pretty hard to be stealing money from the company if at the very same time the auditors were aware of the transaction," Swartz attorney Charles A. Stillman said after the hearing.
But Assistant District Attorney John Moscow said the auditors were not fully aware of the circumstances surrounding the loans.
PwC spokesman Steven Silber said the firm is cooperating with the investigation. "We do not dispute . . . that PwC was aware of some of the loans and had no knowledge that any of the loans were unauthorized or unknown to the company and its board of directors," he said.