David Boies' spirited defense of his client Maurice "Hank" Greenberg's right to invoke the Fifth Amendment, which appeared April 12, 2005, in The Wall Street Journal, marked a new pair of lows: attorney conduct and editorial judgment.

Boies' argument centers on a single idea, prominently highlighted in an editorial call-out: that refusing to testify is a right-not a wrong.

First, he recites all the noble constitutional reasons why Greenberg shouldn't have to explain himself, using the words "leak, leaks, and leaked" about as often as Paris Hilton says, "like."

It might have been fine if Boies had stopped there, but he goes on to extol Greenberg's military service, "landing on the beaches of Normandy, serving in Korea, earning the Bronze Star."

That must have been back when he was Humble Hank, before Imperial Hank came along.

Next, in classic-corporate-PR fashion, the celebrated attorney with a book to peddle chronicles Greenberg's business accomplishments, his "well-known foreign-policy contributions" (let's hear more about those), and his "extensive philanthropy."

It all sounds like the defense of a small-town loan company operator who has absconded with the life savings of most of the townsfolk.

Of course, Greenberg is entitled to take the Fifth. He is an American, not to mention recipient of a Bronze Star. If the Mafia made the same constitutional argument work to their advantage for so many years, why shouldn't Greenburg, even if his interlocking web of companies resembles the underworld more than the world Sarbanes-Oxley tried to create?

Boies is an advocate, and his op-ed piece is a well-crafted piece of advocacy, but one has to question both the editorial venue and the judgment of those who granted it.
Was this a way of giving Greenberg equal time in return for running all those insidious stories about what a narcissistic tyrant he was when he was top dog?

If so, the WSJ editors are purblind, because Greenberg hasn't been particularly forthcoming about the details of his various accounting capers ("Oh, this looks so bad here. Let's move it over to the other side of the ledger and call it something else.").

Why does Greenberg deserve a forum like this? Will Ken Lay or Jeffrey Skilling have the same opportunity?

The Wall Street Journal has simply forgotten the journalist's creed: "Comfort the afflicted and afflict the comfortable." It is confusing Greenberg with the afflicted, instead of someone sitting atop a huge mountain of moolah and refusing to answer questions about how he accounted for it. Go ahead and take the Fifth, Hank, but it doesn't inspire much trust, or confidence in AIG stock.

Nor does issuing a statement to the effect of, "Well, I really wanted to testify, but they wanted to ask all these questions to which I didn't already know the answers."
In fact, Boies' singular editorial makes the question: "Who is a journalist?" pale in comparison to a much larger question: Who will be given prominent op-ed space in The Wall Street Journal to make his case without testifying? In fact, without even writing anything?

Moreover, because Boies represents Hank Greenberg in civil matters instead of criminal, he may be jeopardizing attorney-client privilege, especially when discussions and advice turn to non-legal topics. Courts have held repeatedly that conversations with lawyers on non-legal matters (such as tobacco-company lobbying campaigns) are not privileged, so where is the line here?

I 'll tell you where the line is for me. When lawyers write pieces like this on behalf of clients, and newspapers that have been feasting off the other side of the story run them, it makes the word "flack" seem like an honorable calling rather than a term of opprobrium.

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Bill Huey is president of Strategic Communications, a corporate and marketing communication consultancy in Atlanta.

Facetiousness aside, Levy always challenges with good arguments, so good in fact that he makes it seem as if PR people are as burdened with the responsibility to defend for a price as lawyers are legally bound to do. We are not so bound, but the price does bend the belief at times, doesn't it?

Ron Levy (4/15):
At first it looks like smiling Bill Huey is attacking David Boies and The Wall Street Journal, but see if a closer reading suggests that Huey is attacking the whole PR business – what we do and what we believe in.

Boies is accused of "a new low" in "attorney conduct" because of Boies' defense of his client in the paper. But don't ALL of us defend our client's positions – and in the WSJ if we can get the space?

"It might have been fine if Boies had stopped there," Huey says about the "spirited defense" Boies made of his client's legal rights. BUT, Huey complains, "Boies goes on to extol" the client's military service and admittedly "extensive" philanthropy.

But you can see that Huey also admits the service included--in Huey's own words--"landing on the beaches of Normandy" and "serving in Korea" and "earning the Bronze Star." Wouldn't ALL of us feel free to mention this about a client under attack?

Why should Boies or any of us "have stopped there" – defending a client's legal rights – without also mentioning the client's repeated risk of his life to defend the United States of America and the rights of Americans?

What nearly ALL of us believe in – the rights Americans have under our Constitution – is put down by Huey although he doesn't say which of our rights he might want to get rid of.

What nearly ALL of us do – sell by communicating – is derided as peddling by Huey who calls David Boies an attorney "with a book to peddle."

Huey claims: "The Wall Street Journal has simply forgotten the journalist's creed: 'Comfort the afflicted and afflict the comfortable.'" But WHO says this is the journalist's creed? WHY should journalists try to "afflict the comfortable" instead of informing them and serving them just like those who are not comfortable?

Judge whom you believe more – David Boies and The Wall Street Journal, or their critic, smiling Bill Huey.

J.G. responds to Ron Levy (4/19):
Ron, with all due respect to your well written response, it seems as though you're choking on your own exhaust.

David Boies is grandstanding, using a willing and complicit media to his and his client's advantage, which obviously is his right as a free speech advocate just like the rest of us. Nothing new there.

But Boies is an attorney, not a "flack," which makes toeing the line with attorney client privilege extremely important, a point that seems to be lost. Particularly in a case where no one has entered a court room or official charges other than fraud on national TV haven't been filed. Greenberg brought all of this mess on himself and is now paying the price.

Rather than send his "flack" out to shill, shouldn't have he instead come out earlier to defend the charges himself? Isn't that what "clients" are supposed to do, so paid advocates don't have to?

Abdicating this responsibility is inexusable yet it continues to go on and on and on ... Why not direct some of your stellar prose in that direction instead of aiming gratuitous responses at messengers time after time?

Ron Levy responds to J.G. (4/19):
Some people may feel more secure about themselves by saying "He's guilty!" about others. You might call it a guilt-edged security.

It's a lynch mob mentality – hate-based accusations often directed against people with money like Wal-Mart, Bernie Ebbers and the Enron executives.

But being too quick to condemn may injure people who are doing a lot of good for the public. We blame and sue wealthy doctors when they make a mistake (doesn't everyone make mistakes?) but ignore the lives they saved and the very tough hours they worked under fierce pressure.

Brazilians are blamed for cutting down "our forests producing oxygen the world needs" but the Brazilians do this to plant food, and do you see anyone offering to feed them if they don't plant that food?

Kimberly-Clark is faulted by activists (see story) for cutting down trees instead of using more recycled paper, but would other activists not joyously attack Kimberly-Clark if recycled paper is found not as safe as virgin paper for baby's bottom?

Huey is obviously bright but he blames a top lawyer for doing his job – defending his client. Don't all of us tell a story for clients who are good in some ways and imperfect in others (as all of us are)?

Our Constitution guarantees a lawyer to anyone accused of a crime. Should a rich guy have less right to use a lawyer than someone poor? Ebbers is a deeply religious man – born again – who says he didn't know everything his finance chief was doing. Of the executives you know who employ a lot of people, do you think ANY of these executives know everything their finance chief is doing?

You say Boies is grandstanding, but isn't playing to the grandstand what a lawyer is SUPPOSED to do?

Highly skiled PR is needed for defeding via the media – and lawyers for defending in court. They are as good as we are.

Bill Huey, Strategic Communications, Atlanta (5/03):
Well, pardon the intrusion on Ron Levy’s space, but I’m feeling rather prophetic after yesterday’s announcement that AIG would restate its accounting for three years and shave another billion off its net worth.

That, combined with the veiled admission that Hammerin’ Hank likely had his thumb on the scale during those years, makes Boies’ special pleading all the more inappropriate.

Incidentally, despite the Greenberg legal team’s engagement of a spokesperson, Howard Opinsky, Boies is still at it in today’s Wall Street Journal, trying to exonerate his client by spreading the blame to others in the know at AIG. Whether any of them could have successfully challenged Greenberg is left to the reader’s imagination.

Hank Greenberg and David Boies will have their day in court.

Until then, they should shut up.