Dale Oesterle (Ohio State) highlights the legal problems facing ex-Apple lawyer Wendy Howell. Howell, a graduate of John F. Kennedy University School of Law in Walnut Creek (California), has admitted to falsifying options grants and has been fired by Apple. She also faces potential indictment (and civil suits).
According to The Recorder (a trade paper) Howell was undercredentialed for her suddenly glamorous job after iPOD changed Apple’s brand. And,
It was in that atmosphere that someone decided to grant Jobs a pile of backdated options — and it was up to Howell to fill out that paperwork, which, according to people familiar with the case, included writing up minutes for a board meeting that never happened.
Howell will likely claim that she was asked/ordered to backdate by a higher executive (although under SOX, I’m not sure that this defense would save her were matters to come to a head). In any event,
Whereas Howell will probably try to extricate herself by saying superiors ordered her to fabricate filings, those superiors, said people familiar with the case, are certain to argue that the wrongdoing was limited to Howell, who, as an attorney, would be expected to know that faking documents is illegal.
This is indeed an interesting dynamic. The argument that “the conduct was illegal, but our lawyer didn’t tell us” seems to me to a bad place to start a defense (especially in civil court). But it is, at least, consistent with recent trends to force lawyers to act as gatekeepers with teeth within corporate organizations.
In any event, Dale offers a caution that is worth repeating:
A[ll] young lawyers in corporate practice should heed the simple advice of NEVER, EVER BACKDATE A DOCUMENT. Refuse to do it; if it costs you your job so be it. Otherwise it could cost you your career.