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Hiring Lawyers To Tell You That You Can Do Whatever You Want Proves To Be Less-Than-Airtight Legal Strategy For BNP Paribas

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It seems that the Justice Department and everyone else only care a little that the bank had the best of intentions when it decided to get into bed with genocidal governments.

BNP showed prosecutors a memo that the bank thought would explain and possibly mitigate the conduct, according to people briefed on the matter. The memo, drafted around 2004 by an outside law firm, essentially authorized the bank to process certain transactions for Sudan, as long as BNP’s employees in New York were not involved in the arrangement. The identity of the law firm could not be learned, but the people briefed on the matter said that it was a well-respected firm based in the United States.

BNP argued that it lacked the intent to commit a crime, according to the people, saying that it followed the law firm’s directive. That legal argument, known as the “advice of counsel” defense, prompted prosecutors to pore over the single-page memo and weigh the bank’s argument.

Ultimately, the people said, the prosecutors concluded that the memo alleviated only a small fraction of the wrongdoing. The prosecutors — Cyrus Vance Jr., the Manhattan district attorney; Preet Bharara, the United States attorney in Manhattan; and the Justice Department’s criminal division in Washington — decided that the legal defense applied to transactions that occurred during a brief period of time, according to the people briefed on the matter who spoke on condition of anonymity.

BNP Paribas Pinned Hopes on Legal Memo, in Vain [DealBook]