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By Ted Folkman of Rubin and Rudman LLP

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Belfast Project: Coda

The Chronicle of Higher Education has published an interesting coda to the Belfast Project litigation that I covered here extensively. The piece goes behind the scenes in the planning and negotiations that led to the project and the parties’ thoughts in the aftermath of the project’s implosion—primarily their thoughts about each other. The article does not really address any of the legal issues that were of interest to Letters Blogatory readers. To me the most interesting point in the article is one I’ve marveled at before. No one—not the Boston College people, not Moloney & McIntyre, not the interviewees—thought to consult a lawyer before entering into their written agreements. I can’t imagine that any competent lawyer would have advised any of the participants that there was no risk of a subpoena, even if the lawyer thought a challenge to the subpoenas was possible or even winnable. The moral of the story, from that perspective, is to consult with your lawyer before you enter into important agreements!

Thanks to Chris Bray for bringing the new article to my attention.

Ted Folkman

18 responses to “Belfast Project: Coda”

  1. ed moloney

    as usual ted you have got it wrong. i did think about consulting a lawyer which is why i asked bob o’neill to do so. CHE have the email from me to o’neill asking him to do just that. he told me he would and i had no reason to disbelieve or distrust him. if a mistake was made by me it was in investing too much trust in boston college. the result was the flawed contract that arrived not long afterwards. that is clearly in the piece and it is dishonest, but not surprising, that you fail to note this.

    Reply
    1. Ted Folkman

      Ed, I think you probably hit “send” on that before really thinking it through. You didn’t think to consult a lawyer, you thought to ask BC to consult its lawyer. And the consultation never actually took place. Even if it had, it’s probably not a good idea, if you’re entering into an agreement with someone, to rely on the other person’s lawyer for legal advice, right? The thing to do for BC would have been to consult its lawyer. The thing to do for you and Anthony McIntyre would have been to consult your lawyers. And the thing for the participants to do would have been to consult their own lawyers.

      Reply
      1. ed moloney

        hindsight is always 20:20 vision isn’t it, Ted?
        put yourself in our situation. we were dealing with one of america’s best known colleges with a reputation for doing good things in ireland. they had a fully staffed legal counsel’s office and what’s more an entire law school attached to the college. all experts on US law in stark contrast to ireland, never mind belfast where such experts are thin on the ground if they exist at all.
        BC had been straight with us up to then, they had been recommended to us by paul bew, one of ireland’s most eminent academics and were vouched for by an official i knew in the irish prime minister’s office. so yes, i did trust bob o’neill that we would get legal advice and that the advice would be sound and trustworthy. subsequently we received numerous assurances that we were legally safe and we never had a reason to disbelieve them. unfortunately we were misled and that was my fault for trusting them too much.
        but having said all that, there are two striking aspects to your post that are worthy of comment. one is that you don’t acknowledge or even mention at all that i did ask BC to obtain a legal opinion which a) they agreed to do and b) they did not do but let us believe they had and the other is that once again, as you have done consistently throughout this affair, you veer on the side of the powerful against the powerless, for a $600 million p.a. college against a few hapless paddies. i guess i should be used to that, living this long in the good ole US of A, but it still is a shock when it happens.

        Reply
        1. Ted Folkman

          Your quickness to take umbrage continues to surprise me. I haven’t taken BC’s side against you, unless suggesting that all of the participants, not just BC, bear some responsibility for what happened is taking sides. I’m happy to agree that you asked BC to seek legal advice, as I don’t disagree with it and it seems important to you that I do so.

          Reply
  2. Anthony McIntyre

    Ted,

    for all your claims to provide balance you have achived little. You have yet to address the issue of BC dishonesty, its eagerness to shaft its researchers and research participants, even to the point of threatening Ed with action if he did not disclose the identities of the research participants. There was only one reason for BC wanting those names – so that it could assist law enforcement in Britain to prosecute BC’s own research participants. Jack Dunn in possibly a rare flash of candour (but more likely in one of his regular blunders) admitted that BC could have been more effective had it spent its time waging the political fight instead of trying to be supine in front of the court and show the legal establishment how BC wanted to distance itself from myself and Ed. What actually do you have to say about Jack Dunn lying? And don’t claim you don’t know if he is lying. You have been around legal circles long enough to spot a liar and particularly an incompetent liar like Dunn.

    Not one word out of you to show that the CHE article damned BC and to a large extent vindicated ourselves.

    I admit to being disappointed in your unwillingness to call it as it is. But at the heel of the hunt it doesn’t really matter because few now doubt what narrative was more accuarate, our own or BC’s. And when I prayed ‘Lord make my enemies ridiculous, he sent me Jack Dunn.’

    Reply
    1. Ted Folkman

      I think, Anthony, that you and I are just interested in different things. My interest in the story boils down to what the law is, and with that as my main question, it remains utterly baffling that BC, you, and the participants did what you did without really getting sound advice on that question. With that perspective in mind, I absolutely stand by how I’ve covered this last bit of the story. It just seems common sense to say that all involved could have acted more carefully, which really is all that I’ve said. What, really, is objectionable about that, other than that it puts everyone involved, including you, in a less-that-perfect light?

      I don’t feel knowledgeable enough about the research ethics issues to comment with any certainty, but it seems to me that if anyone has grounds to take issue with my view it’s the interviewees, who were, or were like, the research subjects, entitled to rely on you. It may be that BC didn’t properly vet the study and bears some of the ethical responsibility for the fact that participants weren’t properly informed of the risks. But it was your (or Ed’s, I suppose) study, so to say that BC didn’t raise a red flag about your research design is only partially exonerating. But as I say, I’m not really confident about those views.

      Reply
      1. Anthony McIntyre

        Ted,

        I have no problem with you having a legalistic view. But you veer away from it and steadfastly refuse to confront authority instead trying to shift the onus of responsibility on to those not in authority, lacking institutional and financial clout, and who operate with no power other than that of their own conviction. Anatole France’s view of the law was made with your perspective firmly in mind. “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

        Therefore in your majestic legal sweep of the evidence you conclude that BC and ourselves are equally to blame, the rich and powerful of Boston College, the impoverished of Belfast. Tosh. At no point did we lie or deceive. BC did. At no point did we fold in the face of authority. BC did. At no point did we try to shift responsibility on to people we considered weaker than ourselves and say ‘well, the interviewees should have taken legal advice.’ BC did.

        Yet you would never know any of this from reading your material from day one of your coverage.

        The difference between ourselves and BC is that we genuinely believed we had taken sound legal advice from BC’s lawyers whom Ed demanded the details be put to before proceeding. BC knew it had neither sought nor took sound legal advice. And it concealed that knowledge from us yet issued a donor contract that was meant to bamboozle all and sundry. It further moved to deceive when it told us in writing that no second subpoena was likely because the college had taken advice from lawyers formally schooled in international law. What lawyer formally schooled in international law would not know about MLAT. But not one word from you on such brazen dishonesty.

        Ultimately, Ted had we taken independent legal advice from outside of BC, you would in all probability be saying we didn’t take the right type of legal advice. Anything rather than go toe to toe with the powerful.

        If you are only concerned with the legalities explain the following statement

        “It may be that BC didn’t properly vet the study and bears some of the ethical responsibility for the fact that participants weren’t properly informed of the risks.”

        That is not a mere legal interest but an interest in displacing blame on to one party moreso than another. It is nothing other than an attempt to portray BC in the best light that can still be squeezed out of a sunset inexorably flickering out over its reputation and ethical responsibility. You know (nothing ‘may be’ about it) BC did not do its job yet you would rather blame myself and Ed.

        “ It just seems common sense to say that all involved could have acted more carefully, which really is all that I’ve said. What, really, is objectionable about that, other than that it puts everyone involved, including you, in a less-that-perfect light?”

        Anatole France’s unremitting logic is what is objectionable about it. It suggests equal culpability which is an utterly false way to present it. Less than perfect light? I am happy enough to live with that charge. Had we got it perfectly we would not have faced this situation. Who, Ted, was by far the most imperfect? Or are we all compelled to sleep under the bridges of the River Seine because we all had the same equal opportunity to get the thing right?

        The interviewees do take issue with your view, those that have seen your coverage feel it has at all times sought to go easy on the institution that shafted them and wanted to provide their identities to the British and that you have been more robust in your criticisms of the people who fought tooth and nail to protect them.

        If you doubt me ask Richard O’Rawe what he thinks of your coverage.

        I am thoroughly disappointed that at this stage of the game when BC has been so thoroughly called out you are still trying to play both ends against the middle.

        And as someone who has defended you against the more jaundiced criticisms thrown your way and who has never made the issue personal in respect of yourself, you can hardly accuse me of being nasty or insulting.

        Reply
        1. Ted Folkman

          I make no such accusation.

          If you had gotten legal advice, then given what you’ve said about the absolute importance of confidentiality, there would have been no Belfast Project, so I can’t imagine ever saying you got the wrong kind of legal advice.

          I’d be happy to hear from any of the participants—none have ever commented here.

          Reply
        2. Ted Folkman

          By the way, anyone interested in testing your view that I’m basically biased toward the Man and against the little guy should read my coverage of the Lago Agrio case.

          Reply
          1. Anthony McIntyre

            Ted,

            and not one answer about the institution.

            Reply
            1. Ted Folkman

              I have said all along that BC is partly to blame. I’m not sure what more you want, except a statement that BC is solely to blame, or mostly to blame. I think I’ve made it clear that I don’t see things that way.

              You may wonder, why do I spend so much of my online time on this case pushing back against the positions you and Ed Moloney have taken. That’s easy: you’re the guys who write in and who seek a dialogue. I suppose if a BC spokesman wrote in and wanted to take issue with how I’ve addressed the case, I would push back against his positions, too. And, of course, you and Ed took the legal positions that were both the most interesting and the most clearly wrong during the litigation (e.g., the MLAT arguments), so I think it was natural for me to cover your arguments in greater depth. I don’t regard giving my views on interesting, wrongheaded arguments—views that were basically proved correct, by the way—as some sort of unfair bias. You may disagree.

              I’d be happy to continue this discussion, but it will have to be tomorrow: I have a brief to finish up and then a certain football game to watch!

              Reply
              1. Anthony McIntyre

                Ted,

                this is the point. You side with the institution. There is no reading of the argument that would sustain the view that BC were not mostly wrong: they deceived their researchers and research participants; they lied to cover it up; they took no legal advice in the certain knowledge that they were exposing people to enhanced risk; they lined their own pockets with royalsties from a book they later blamed Ed for having written; they abandoned the fight before it began and had to be bounced back into it; they tried to rat to the British authorities on the identities of own research participants. Even as of this week they are still lying, this time about Kevin O’Neill’s memo. And you have nothing to say about any of that. Not a word. And you expect me to buy that as non partisan balance. You still behave as Anatole France would expect lawyers to – everybody is equally to blame but in the round the researchers more so than the institution.

                I don’t care in the slightest why you spend time debating this but I am absolutely certain you would never confront BC as you have sought to challenge us. At every turning point you failed to turn.

                Nor do I mind you criticising our legal strategy. It is when you move away from the legal and make a value judgement that flies in the face of all the evidence – that is when I do mind.

                Reply
                1. Ted Folkman

                  (On my way home for the game!)

                  Well, people can disagree. I’ll give this one last go with an analogy that may help explain why I think about this the way I do. Suppose my client says to me, “I need legal advice on an issue, but I need to know that our conversation will be privileged and that you will never be compelled to disclose it to anyone.” I could make a promise to the client that that is so. I could do a little research to assure myself about the law in case there were any special circumstances, and then make the promise to the client. I could tell my client I was going to consult with a colleague with particular expertise on privilege issues, actually consult with the colleague, and then make the promise. I could tell my client I was going to consult with my colleague, fail to consult, and still make the promise. (This last one is the Belfast Project analogy, right?) But whatever the case, if I am wrong about the law and ultimately get subpoenaed, and a court orders me to disclose the conversation, who, from the client’s perspective, is most responsible for the fiasco? I am the professional, and my advice is my responsibility. I may have reason to be angry with my colleague, as you are angry with BC. But I’m at fault, too, and the professional responsibility to the client was mine.

                  Reply
                  1. Anthony McIntyre

                    And still not a word about BC. Small wonder we often find it hard to make the connect between between lawyers and justice.

                    Reply
                    1. Ted Folkman

                      (sigh).

                    2. Anthony McIntyre

                      Bye

                      (it rhymes!)

                      Still, nothing to fall out over.

                      Best

                      Anthony

                    3. Ted Folkman

                      I read that you two are planning a lawsuit, so I guess we’ll be batting this about some more!

                    4. Anthony McIntyre

                      indeed we could be

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