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Comment by lisper | Hacker News Reader

> Michelle ultimately served 3½ months in jail ... Michelle had no intention of breaking any laws and no idea that she’d broken any laws.

There is something desperately wrong with our legal system when a situation like that is even possible.

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The blog post is a highly misleading one-sided account of a notorious white-collar crime. You should read more about it from other perspectives.

Do you have a recommendation?

https://www.reuters.com/article/mercury-plea/former-mercury-...

https://www.sec.gov/litigation/litreleases/2009/lr20964.htm

etc.

Kind of interesting, too, that the original article talks about the backdated options being granted to "employees", while from your links, it appears that this was very much a thing for executives only.

An executive risking jail time to help employees out does not sound that plausible, to be honest.

Now an executive risking jail time to enrich themselves? Now we’re talking.

Thank you! So, Michelle is Sharlene.

From the sec link it is pretty clear she knew what she was doing. Backdating options was just one part of a larger scam.

> > Michelle had no intention of breaking any laws and no idea that she’d broken any laws.

> There is something desperately wrong with our legal system when a situation like that is even possible.

Is there? If I intend to do something which is illegal, but don't know that it is illegal or intend to break any law, should I be immune to criminal punishment? If I mistakenly believe the legal scope of self-defense includes using deadly force against threats which are only fuzzily-anticipated in the future, should murdering the roommate a vaguely suspect of harboring ill-intent against me be non-criminal?

When the law cares about intent, it is usually intent to commit the act which the law addresses, not intent to break the law by so doing. If this really wrong?

> Is there?

Yes.

> If I mistakenly believe the legal scope of self-defense includes using deadly force against threats which are only fuzzily-anticipated in the future, should murdering the roommate a vaguely suspect of harboring ill-intent against me be non-criminal?

There is a big difference between the laws relating to the use of deadly force and accounting laws. Accounting laws are orders of magnitude more complicated and more difficult to understand. So yes, if you come up with some clever accounting trick, and you check with a lawyer, and the lawyer tells you it's OK, then you should not be liable if the lawyer gets it wrong. What else can possibly be reasonably expected of someone?

> There is a big difference between the laws relating to the use of deadly force and accounting laws. Accounting laws are orders of magnitude more complicated and more difficult to understand.

Which is relevant if ignorance of the law is an excuse, but not if it is not.

> So yes, if you come up with some clever accounting trick, and you check with a lawyer, and the lawyer tells you it's OK, then you should not be liable if the lawyer gets it wrong.

The only specific reference to a lawyer looking at it in this story was to the lawyer getting it right (an accounting consultancy got it wrong, previously.) But, in any case, unless it was criminal for the lawyer to get it wrong, this would completely defang accounting law since a lawyer blessing an illegal practice would not be guilty of anything, and anyone who got a lawyers blessing would not be guilty of anything.

> a lawyer blessing an illegal practice would not be guilty of anything

They'd be guilty of professional malpractice.

> They'd be guilty of professional malpractice.

Professional malpractice is not a crime but a tort, and the tort requires the client to be harmed by the failure rather than, as in this scenario, owing their liberty to it. So, the criminal law would be completely defanged. And it's unlikely the lawyer would be liable for balance, either.

Your scheme results in people who do due diligence to comply with the law being punished. Do you seriously not see it as a critical defect?

Ignorance is no excuse for breaking the law. Especially when it's your job to not be ignorant of it.

Would you feel the same about manslaughter? If someone drove carelessly and killed your child, would you want them to get away unpunished because they didn't intend to break the law?

Knowing that driving carelessly is against the law is a pre-requisite for getting a drivers license. It also doesn't require a law degree to understand that driving carelessly is against the law. There is a big difference between that and a situation where you think of some clever accounting trick, take the initiative to check with a lawyer, have the layer tell you that it's fine, and then you end up going to jail anyway.

Given how lightly white collar crime is prosecuted in this country, this makes me assume not that the law is draconian and unjust, but rather that there is more to the story than we're getting here.

How would an ignorance defense possibly be workable?

If you seek professional, respectable counsel, and that professional, respectable counsel tells you the wrong thing, is "ignorant" even the right word? What exactly are you supposed to do in that case? Get a second opinion? When they conflict, get a third? Who's to say any of them will be right, if we're worried about correctness in the first place? How do you know when to stop? Even becoming a lawyer yourself isn't necessarily going to protect you, because you may well interpret the law incorrectly.

This is really a no-win situation.

"I didn't know I was breaking the law" is not accepted as a defense because then defendants can simply always say they didn't know what the law was. It's true that this is more complicated for accountants, but presumably that's why we make them get licenses.

This is not "I didn't know I was breaking the law." This is, "I did my due diligence (i.e. I checked with a lawyer) and had every reason to believe that what I was doing was legal." I think that's a reasonable defense.

It is; the defense is called "advice of counsel".

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