indeed we could be

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

Bye

(it rhymes!)

Still, nothing to fall out over.

Best

Anthony

(sigh).

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

(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.

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.

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!

Ted,

and not one answer about the institution.

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.