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The New York Times recently released a podcast interview with a female lawyer, Ali Diercks, who worked for the Washington law firm, Covington & Burling, that was hired by CBS in the fall of 2018 to investigate sexual misconduct allegations against its then recently-departed CEO, Les Moonves. Podcast

Dierck's job was to review pages of CBS emails and other internal communications. She said that she came across documents that showed: 1). Moonves's sexual predations at CBS were long-standing, with alleged bad conduct going back decades; and 2). Other senior male CBS employees had abused or harassed women at the company, again over many years, and their misconduct was ignored or downplayed by CBS management. These documents convinced Diercks that CBS had bred a culture that tolerated or otherwise avoided any serious reckoning with these behaviors. This was not news in the fall of 2018, as in July of that year The New Yorker published an article that contained more or less those same allegations. Ronan Farrow article

Diercks held a law license issued by District of Columbia. One part of the bar exam she passed involved questions about the ethical responsibilities of a licensed lawyer. Forty-five years ago I passed the California Bar Exam, the only easy part of which was the legal ethics section--- not because I was at the time a gifted moral thinker, but that most of what you need to know to be an ethical lawyer is common sense for anyone with a functioning moral compass. For example, if you receive a check from an insurance company who's settling with your client, you need to deposit that money in a separate escrow account, and not in your personal checking account. Also on the list of your ethical obligations is to abide by the attorney/client privilege which, with few exceptions, forbids you from revealing to any third-party confidential information you receive from your client, whether words in a conversation or words on a page. All of the CBS documents Diercks reviewed were confidential.

Internal company emails between employees, even if they contain damning allegations about misconduct by its CEO, may or may not be confidential when written, but there's no doubt that they become confidential once they're sent to the law firm the company hired to review the matter. A CBS employee who had access to an internal communication with the Human Resources Department that described allegations of sexual misconduct by Moonves could send that email to the Times and claim protection as a whistleblower. Yet that same email, once sent to a law firm, cannot be made public. Why this double standard?

Civil society, in contrast with animal or ant societies, requires that certain actions and behaviors be kept private. Why are there so-called decency laws prohibiting people from having sex in public, or disorderly conduct laws that will punish you if you defecate in public? Because there is a social norm or convention that draws a line separating the public from the private sphere. And that norm is often formalized as a law.  A similar concept explains the various privileged communications recognized by most civil societies, such as priest/confessor, doctor/patient, and attorney/client. Underlying all these is the belief that there's a social good resulting if these sensitive, private conversations are kept that way. The confessor's soul is cleansed, the patient receives optimal care, and the client obtains the best legal advice from his attorney if all the facts and details are first shared with the lawyer. The social good promoted by protecting whistleblowers is the punishment of bad actors, with the whistleblower functioning as a citizen sheriff. In our increasingly complex world, the claim is that we need citizen sheriffs to more effectively enforce our laws.

Les Moonves was a seriously bad actor, and for a long stretch of time as CEO of CBS had abused, harassed and otherwise exploited a number women. There's no defense for his conduct.

After spending weeks reading through the documents in the CBS file, Diercks decided that CBS's history of ignoring sexual misconduct allegations needed to be revealed to the public. She concluded, crucially, that CBS was not a client, to whom she was bound by the attorney/client privilege, but itself a bad actor that needed to be exposed. Diercks concluded that Covington partners might white-wash crucial details in the file to protect its corporate client, and CBS in turn would exonerate itself by hiding behind the law firm's doctored report. Diercks transitioned from being a lawyer to a whistleblower.

In addition to the tarnish to its reputation, this matter with Moonves involved significant money for CBS.  While he resigned in 2018, after the New Yorker published its story about his misconduct, Moonves may have done so to improve his chances of receiving the $120 million severance payment stipulated in his employment contract. If, however, CBS could find grounds to terminate that contract for cause, no severance payment would be due. One of the reasons CBS hired Covington & Burling to investigate this matter, no doubt, was to learn whether it had grounds to retroactively terminate Moonves for cause.

Diercks then contacted the tip-line at the New York Times and was soon in contact with Rachel Abrams, a Times reporter.  Evidently, you can confidentially contact the Times and hand over to them confidential information. Over time, Diercks provided large amounts of confidential, attorney/client protected information to Abrams. In late 2018, the paper ran an article stating that a draft report from CBS's law firm concluded that Moonves had for a long period of time as CEO been demanding and receiving sex from women who either worked for the company or were hoping to be hired . The report described other examples of Moonves's misconduct, including lying to CBS's internal investigators and/or the Board about his behavior. Times article

After Abrams's article was published, Covington launched an investigation to determine how this information was leaked. Computer tracing allowed the law firm to locate which of its attorneys had access to those CBS documents that figured in the Times article. Diercks was questioned, and soon thereafter resigned from the firm. Covington then concluded that Diercks was the leaker, petitioned the DC Bar Association, and her law license was suspended.

In the podcast, Diercks says that one of the reasons she reached out to the Times was her concern that CBS's culture of abuse, more extensive that just Moonves's behavior, would not come to light.  Given that Charlie Rose had been fired by CBS in the spring of 2018 for sexual misconduct, and The New Yorker’s article from July of that year named Moonves and CBS News employees as sexual predators, Dierck's concern makes no sense. There's nothing in the podcast, no evidence other than Dierck's belief, to suggest that CBS or Covington were trying to suppress the truth here. Quite the contrary, for financial reasons alone, CBS would have a strong interest in being able to avoid the $120 million severance payment to Moonves. So why would they want to prevent a damning report about Moonves from coming to light?

It's one thing for a lawyer to abandon her ethical responsibilities and take on the role of a whistleblower, but far more execrable conduct for a supposedly responsible newspaper to become a co-conspirator in this conduct. Journalists, unlike lawyers, are not licensed, so they play by other rules. And what exactly are those rules, and who determines them? There must be an employee manual at the Times that has at least a few pages on the ethical obligations of journalists, and not just details on the Company's health plan. In any event, Abrams and her superiors at the Times concluded that it was OK to publish information that was clearly privileged and should have been shielded from public disclosure unless the client (CBS here) authorized its release.

Why would The Times engage in such obviously unethical activity? One, perhaps the only, explanation is that they are in the scoop business—-trying to publish a story before any of their rivals. Just like the tabloid press, the Times chases scoops, and there may be little difference at times between the manure that any newspaper shovels.

There's an Arthurian legend from the fourteenth century in which Merlin tells the King that if his workers scoop water from an underground tunnel, they'll find two dragons there.  Dragon searching sounds like dangerous, stupid work, not something Merlin himself would soil his wizard's hands with. The Times (Merlin) encouraged Ali Diercks (Merlin's worker) to engage in dragon scooping. "All the news that fit to print"---the Times's tagline--- by definition does not include confidential, privileged information you are not allowed to print. The Times's lawyers, editors, and others on its payroll thought otherwise.

What did Ali Diercks get out of all this? She lost her law firm job and law license but did get her moment of righteous indignation. When the article was published by the Times in 2018, Diercks's name was, of course, hidden as an anonymous source, but as she says in the recent podcast, she felt vindicate by doing the right thing. The Times's article on the Covington only referenced Moonves's misconduct; there was nothing about the larger, abusive CBS culture in the article. The way I read all this is The Times took full advantage of Diercks as an inside source, without giving her what she wanted, which was a report about CBS's abusive culture towards women. And that would be the second count of my indictment of The Times's behavior here.

In the end, Moonves did not get his $120 million severance payment from CBS, but he was paid an undisclosed sum by "a CBS contractor," presumably Covington & Burling.  I imagine that Moonves's lawyers got this payment because they argued that Covington's violation of the attorney/client privilege harmed Moonves because, under the circumstances, he was also a quasi-client entitled to confidentiality. Moonves settlement

That Moonves received any money as "damages,” given the extent of his bad conduct, is an appalling irony of this story, and the third count of my indictment of The Times.  

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