Was This TV Network General Counsel Never Admitted To The Bar?
I hate keeping up with CLE as much as the next lawyer, but this is a pretty extreme avoidance strategy.
The New York Times reports that its research has turned up no evidence that David W. Harleston, general counsel for Al Jazeera America, was ever admitted to the bar of the State of New York… or any other jurisdiction. Hey, I hate keeping up with CLE as much as the next lawyer, but this is a pretty extreme avoidance strategy.
It’s a bombshell of a revelation considering Harleston’s over 30-year career divided between Biglaw and highly coveted, top-tier media jobs. In the wake of the accusation, Al Jazeera America has suspended Harleston and brought in Skadden to investigate just what happened here.
Especially because the status of Harleston’s license could have big repercussions for the company’s bottom line.
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What we do know is that Harleston passed the bar exam — back in February of 1986 (after reporting to his first Biglaw job we’ll note) — but somehow never made it onto the rolls. As the Times puts it:
That means one of two things, according to court officials: Either he did not complete his application to the court for admission, or he failed the “character and fitness” review.
Well, yeah those are both options. But that’s kind of like saying, “Mrs. Harrison lives alone meaning she either got divorced or bludgeoned his with a tire iron in a roadside motel outside Muskegon, littering the freeway with his dismembered remains as she drove home through the night.” They’re both entirely possible but maybe we don’t need to start jumping to implied conclusions.
A little background on Harleston:
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After graduating from Harvard College and Yale Law School, Mr. Harleston was a clerk for Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit and then practiced at Simpson Thacher & Bartlett from 1985 to 1989. Mr. Harleston “litigated extensively” for the firm, according to his corporate profile on Al Jazeera’s website.
Maybe it’s true what they say about Yale Law School not making real lawyers.
After Simpson Thacher, Mr. Harleston worked for a year as counsel for Sony Music Entertainment, and then worked as president of Def Jam Recordings, the rap music label that Russell Simmons helped found. Over the next 20 years, Mr. Harleston went on to serve as an internal lawyer for several media organizations, and in 2005 joined Current, which was later acquired by Al Jazeera.
A lot of unlicensed lawyers are scary people, but every now and again there’s a law firm partner (or sitting attorney general though that’s a different story) dabbling in the unauthorized practice of law. It’s these “higher ticket” cases that raise the biggest risks for the duped clients and firms:
Legal experts warn that Mr. Harleston’s lack of a law license could leave Al Jazeera America vulnerable in the employee-discrimination lawsuits. Ronald Minkoff, a New York lawyer specializing in professional responsibility and legal ethics, said he believed that this could lead to a battle over the confidentiality of Mr. Harleston’s internal emails and other communications.
“In any litigation that the company is involved in, as soon as this comes out there is going to be this issue about privilege,” Mr. Minkoff said.
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This is definitely a concern for Al Jazeera America, but it may be a little overblown.[1]
It’s hard to imagine a legal quandary that wouldn’t involve a number of counsel, and just making sure to loop some outside counsel, or at least a licensed member of the legal department, into every exchange should appropriately protect the network.
Even a Yale Law grad would be able to figure that out.
General Counsel for Al Jazeera America Appears to Be Unlicensed [NY Times]
Earlier: Law Firm Partner Charged After Pretending To Be A Lawyer For A Decade
Man Finds Practicing Law (Without A License) Isn’t All It’s Cracked Up To Be
‘No Law License? No Problem!’ Says Embattled State Attorney General
[1] An astute reader raised the exception that extends the privilege where the client “reasonably believed” the individual to be an attorney. There is such an exception but Al Jazeera probably wouldn’t meet it.
An on-point case is Gucci America, Inc. v. Guess?, Inc., 2010 WL 2720079 (S.D.N.Y. June 29, 2010) that looked into this exception and applied a 3-part test asking: (1) did the person fraudulently hold himself out as an attorney; (2) did the client genuinely and reasonably believe him to be an attorney; and (3) pursuant to that belief, did the client engage in confidential communications with the person?
BUT the court held that Gucci did not “reasonably believe” its in-house counsel to be an attorney because it never made an effort to confirm that he was an attorney. (for more, Arnold & Porter has some informative analysis of this case)