Saturday, June 17, 2006

The Moral of the Story: Don't Talk

The Wall Street Jrl has a fascinating interview here with Jeffrey Skilling, where he admits how his continual talking helped to make the government case.  But he also notes that it was the "ethical" thing to do.   

Looking back on the Martha Stewart case, one has to admit that she too talked.  And she too ended up indicted, convicted, and she served time.

In the case of Martha Stewart, the indictment was premised exclusively on her talking, talking that the government claimed to be untruthful.  In the case of Jeff Skilling, the talking were just the nails into the coffin that held his ultimate indictment and conviction.

Defense attorneys continually are faced with clients that wish to talk.  It is common for the intelligent client to feel that they can talk their way out of things.  If only they were given the chance to explain, it would all be OK.  But as seen in these two cases, it doesn't work that way. 

Now compare this with the street criminals caught by the police who are trying to get them to confess.  The experienced ones know better. They refuse to talk and ask for a lawyer. The less experienced may be swayed by the feeling that they will be let go, or get a good deal, if they just tell the truth right now. They learn, the hard way, when their confession is read at their trial.

Although the moral of the story may be - don't talk, one has to wonder if this is the "ethical" thing to do.  Maybe Jeff Skilling is right.  The interesting thing will be to see whether his cooperation ("talking") with the Securities Exchange Commission will mean anything when it comes time for sentencing. 


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I don't know if you have the time, but I wonder what your response would be to William Simon's article, "The Confidentiality Fetish," which cautions against the conventional lawyers wisdom of "don't say a word." I don't practice criminal law but my sense of the issue is closer to yours than to Simon's.

Posted by: John Steele | Jun 18, 2006 7:53:40 PM

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