Mark Kipnis is competent 99 per cent of the time
The top story on law.com today reprises the strange case of Mark Kipnis, former Hollinger International corporate counsel and, pending appeal, convicted felon. Kipnis—who benefited not at all from the scheme that paid out millions to his bosses—was convicted essentially of negligence. In pleading to stay out of jail (successfully, it turns out), Kipnis admitted that “ninety-nine per cent of my time, Judge, I believe I was competent. I believe I did do a good job. It was that one per cent—the compliance aspect—that should have taken much more of my time. I admit…I did not fully understand the magnitude of those responsibilities.”
Ignorance of the law, as the article points out, while affording mitigation, offers no defence. Both Julie Ruder and Eric Sussman sat for on-the-record interviews and their take is clear:
“All of us have choices,” says prosecutor Julie Ruder, sitting in a conference room in the downtown Chicago federal building where the trial was held. “None of this would have happened,” Ruder says, referring to the fraud, “if Mark Kipnis had made different choices.” Sitting next to her is Eric Sussman, another member of the four-attorney prosecution team. “All Mark Kipnis had to do,” he says, picking up the thread, “was say, ‘No, I don’t feel comfortable with this. I’m not doing it.’” He doesn’t think in-house lawyers are at greater risk these days, Sussman adds, but he has seen one change: “There’s more awareness that you have to take your fiduciary duty seriously and protect the shareholders.”
Need more proof? Just ask Peter Atkinson.
• The Trial of St. Mark [Law.com]
