The New York Times Rule

The “New York Times Rule,” in its broadest definition, means don’t do anything you wouldn’t want to read about on the front page of the New York Times. A somewhat narrower version of the rule is don’t put anything in writing that you wouldn’t want to see published on the front page of the New York Times. It is good practice to remind yourself, and your employees, of this rule every so often. This is particularly important in the age of email communication, where people routinely compose and send email messages to colleagues without a lot of thought and deliberation. It’s much easier to put together an email message than a memorandum on paper, and the email message stays around forever on a server somewhere, even after you’ve hit delete.

I’m motivated to write about the New York Times Rule because, once again, it seems to have been broken by people who really should know better – lawyers. Not just any lawyers, either. This time, it’s lawyers at the top of what was one of the largest and most prestigious firms, Dewey & LeBoeuf (now closed and going through bankruptcy). Demonstrating why the rule is called what it is, we have this article in the New York Times, about the indictment of three senior members of the firm (also indicted was one more junior employee of the firm). They are accused of larceny and securities fraud in the 106-count indictment, and it seems that they wrote about the scheme openly in numerous email messages. According to prosecutors, they used phrases like “fake income,” “accounting tricks,” and “cooking the books,” and joked about fooling the firm’s “clueless auditor.”

This isn’t the only instance of lawyers at a prestigious law firm writing things in email messages that they shouldn’t. Last year, DLA Piper settled a dispute with a client over a $675,000 bill for legal fees. The client obtained 250,000 pages of documents, including email messages, in the discovery process. Those email messages included several in which the lawyers joked about the rapidly growing legal bill:

“I hear we are already 200k over our estimate—that’s Team DLA Piper!” wrote then-DLA Piper partner Erich P. Eisenegger in one email.

After another lawyer responded, noting that an attorney colleague, whose first name is Vince, had been added to the group working on the bankruptcy matter, then-DLA Piper attorney Christopher Thomson added his thoughts: “Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” wrote Thomson. “That bill shall know no limits.”

Employees and managers in any company need to be careful about what they put in writing, and that includes email messages and instant messaging in particular. While these two cases involve behavior that may be criminal and unethical, the rule applies to anything sensitive or potentially embarrassing. It could just be frank discussions of policies, pricing options, or product formulations, as employees and managers try to reach a decision. Before you hit “send” on that email or instant message, think for a moment. How would this email look in tomorrow’s newspaper? Of course, the best way to avoid bad publicity like this is to avoid doing bad things. Don’t engage in financial misconduct, unethical and fraudulent billing, sexual harassment, or employment discrimination in the first place, and there is far less likelihood of having to read about it in the New York Times.